New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164

LEGISLATION CITED: Industrial Relations Act 1996

Austin v NF Importers Pty Ltd (2005) 146 IR 113 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia [2006] NSWIRComm 288 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 HREA on behalf of Drinan v Hunter Area Health Service [2002] NSWIRComm 270 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 Mason (Department of Public Health) v Public Service Board (CEAB, 182 of 1968, 14 November 1968)) National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 CASES CITED: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) (2006) 155 IR 257 Pastrycooks Employees, Biscuit Makers Employees & Flour and Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 Prior and South Eastern Sydney Illawarra Health Service [2006] NSWIRComm 1117 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Samad v Public Service Board (New South Wales) (1983) 5 IR 464 Samad v Public Service Board (GREAT Appeal No 1395 of 1982, 5 November 1982) Stewart and Hunter Area Health Service (IRC 5299 of 1998, 11 November 1998, Harrison DP, unreported) Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70

HEARING DATES: 19 February 2007, 11 April 2007

APPELLANT Ms C Howell of counsel Solicitor: Ms S Shean New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Mr P Ginters of counsel Solicitors: Mr M Paul Bartier Perry

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WRIGHT J, President HARRISON, DP STAFF J

NEW SOUTH WALES NURSES' ASSOCIATION (ON BEHALF OF COLIN PRIOR) AND SOUTH EASTERN SYDNEY AND ILLAWARRA AREA HEALTH SERVICE

Application by the New South Wales Nurses' Association (on behalf of Colin Prior) for Leave to Appeal and Appeal against a decision of Commissioner Murphy given on 17 October 2006 in Matter No IRC 79 of 2006

1 Mr Colin Prior ("the appellant") commenced employment as a registered nurse with the South Eastern Sydney and Illawarra Area Health Service ("the respondent") in January 2000. The appellant was summarily dismissed on 6 January 2006 from his position at the Garrawarra Centre, an aged care facility conducted by the respondent in the Illawarra area that specialises in caring for residents with dementia and challenging behaviours. 2 The New South Wales Nurses' Association, on behalf of Mr Prior, made application for relief under s 84 of the Industrial Relations Act 1996 ("the Act"). 3 Commissioner Murphy dismissed the application for relief in Prior and South Eastern Sydney Illawarra Health Service [2006] NSWIRComm 1117. The New South Wales Nurses' Association on behalf of its member, Mr Prior, has applied for leave to appeal and, if leave is granted, to appeal the Commissioner's decision. The Proceedings Below 4 The appellant was dismissed by the respondent for misconduct, being that on 12 December 2005, the appellant assaulted a resident ("Mr D") to whom he was administering medication. Mr D was known to be prone to aggressive and violent behaviour. At the time of the alleged assault, Mr D was seriously restricted by a security chair and there were other nurses in the vicinity. 5 The appellant said that Mr D had hit him on the arm and grabbed his shirt after he removed a magazine from Mr D. The appellant was advised of allegations that he had assaulted Mr D by the respondent on 13 December 2005. Later that day, the appellant prepared a written statement of what occurred, which he provided to the respondent at a disciplinary interview on 20 December 2005. The Commissioner, in considering the evidence, concluded the appellant's version of events was unlikely to have occurred. Nevertheless the Commissioner gave consideration to the appellant's version of the events and held: [305] There were some other aspects of the evidence which presented difficulties for Mr Prior. One of those was the testimony of more than one witness that the resident presented no real threat to Mr Prior, being in a restraint chair and that all he had to do was to move away. There was evidence from those witnesses already alluded to of Mr D either taking a swing at the applicant after the removal of his magazine, or having arms outstretched towards Mr Prior, or grabbing Mr Prior's arm - again apparently trying to retrieve his magazine. Not even Mr Prior claimed that he was out of his chair to any significant degree. Beyond those distinctly variable possibilities, the only real and sustained piece of aggression from the resident came from the applicant's insistence that the front of his shirt had been clutched, which I have decided was highly unlikely for the reasons stated. Even at the worst - if the resident had hit Mr Prior on the arm and grabbed him by the shirtfront (as opposed to the alternative moves by the resident, just described) those circumstances were a low level risk and not serious enough to deserve the assaults on the resident witnessed to varying extents. Those assaults have to be considered in the context that the resident was seriously restricted by the security chair, and others were around to lend a hand. 6 Ultimately, the Commissioner concluded that the appellant's evidence was implausible and improbable. 7 The Commissioner made the following findings: [313] I am satisfied that he [the appellant] punched Mr D in the arm, slapped him in the region of the head, and in quick succession twisted his arm in an aggressive manner, with little provocation. Such actions did not arise from a legitimate need to extricate the hand of the resident from his person and in the language of some of the relevant authorities referred to by Ms Howell, ( including the Fire Brigades Case listed above). I have found that the conduct constituted a fundamental and wilful repudiation of the contract of employment after taking into account mitigating factors.

[314] The respondent was shown through the evidence of Ms McIver to have relied on at least each of those incidents of assault, being witnessed by at least one member of staff and all three incidents being seen by one witness. The twisting of the arm was the most serious and contemplative action and on it own, was serious enough. That reliance was not misplaced. 8 These findings were made by Commissioner Murphy after he had assessed the credibility of four witnesses to the alleged assault. The Commissioner observed: [280] The Commission has confidently rejected any prospect that that particular witness (Sandra Bowley) or indeed, that any of the witnesses exaggerated events observed by them, or allowed themselves to be influenced in what they said and put into their respective reports. I am sufficiently satisfied this did not happen either through conversation with one another or by the exhortations of the NUM, Mr Coventry, who took the initial report from Ms Lindsay and gathered the others together and asked them for individual reports, or from Ms McIver's subsequent investigative approach. In that process, he stressed the seriousness of the situation being revealed and apparently there was some discussion of events, although recollections varied.

[281] … The Commission recognises that a less than perfect opening of the investigation may have been put in train, at least at the initial meeting involving the NUM, Marion Lindsay and two other witnesses. However, against the prospect of contamination, was that all three main witnesses gave no clue of being influenced by anyone else and also maintained some very significant differences (although not contradictory) in what they saw from where they stood, through the interview with Ms McIver, in their written reports, and most importantly, under stout cross-examination. Ironically, as canvassed above, the likelihood of contamination was much greater in the ensuing period and made re-interviews, to check the applicant's new 20th January version a greater risk.

[282] The respondent's key witnesses were cautious, yet fairly precise, although they appeared open to correction by Ms Howell, but the Commission is satisfied that there was no conscious effort whatever by Sandra Bowley, Margaret Bowley, Tracey Fitzgerald, Marion Lindsay or Melanni Bridges to exaggerate or fill in gaps from the others' versions. They certainly did not see each others statements. [283] Each of the witnesses impressed the Commission with their extreme reluctance to give evidence against a colleague. This was even obvious at the time statements were taken, and whilst Ms Howell contended that one in particular (Sandra Bowley) offered gratuitous advice of the applicant's attitude and behaviour to difficult residents, during investigation interview, that was not repeated in her statement provided the next day to the investigating officer, Ms McIver. I do not share Ms Howell's scepticism about any of her evidence, and certainly reject the suggestion that it would be unsafe to rely upon it for the reasons advanced by Ms Howell , which included that she was biased against Mr Prior. Grounds of Appeal 9 The grounds of appeal were in the following terms: 1. The Commissioner erred in finding and in taking into account that the respondent had not had the opportunity to prepare its case adequately concerning the issue of staff training in aggression management. 2. The Commissioner erred in taking into account the fact that there was no evidence to compare the training of Mr Prior in regard to aggression management with that of other staff. 3. The Commissioner erred in taking into account the fact that Mr Prior "apparently did not alert his employer to any need for greater training". 4. The Commissioner erred in taking into account the fact that "there was no evidence of how formal training could have assisted the situation on 12 December 2005 on the basis of Mr Prior's simple version of events". 5. The Commissioner erred in failing to accept that the respondent was required to comply with the Departmental Training Policy which was Exhibit 10 in the proceedings. 6. The Commissioner erred in failing to take into account or failing properly to take into account the respondent's failure to provide training in aggression management to Mr Prior in accordance with the Departmental Training Policy which was Exhibit 10 in the Proceedings. 7. The Commissioner erred in taking into account in a manner adverse to Mr Prior had not told his employer until 20 December 2005 that the resident whom he had allegedly assaulted had grabbed him by the shirt. 8. The Commissioner erred in finding that, or proceeding on the basis that, Mr Prior had been shown the reports by staff prior to the interview of 20 December 2005. 9. The Commissioner erred in finding that the respondent ws not required to investigate Mr Prior's claim that the resident had grabbed him by the shirt. 10. The Commissioner erred in failing to take into account or failing properly to take into account the fact that witnesses had discussed what they believed they had seen with each other prior to the formal interviews conducted by the respondent as part of its investigative process. 11. The Commissioner erred in accepting or in accepting in full the evidence of Ms Sandra Bowley. 12. The Commissioner erred in failing to make any finding as to whether or not the resident had grabbed Mr Prior's shirt, or alternatively in finding that the resident had not grabbed MR Prior's shirt. 13. The Commissioner erred in finding that Mr Prior had hit or slapped the resident in that such finding was not open on the evidence or alternatively was against the weight of the evidence. 14. The Commissioner erred in finding that Mr Prior had punched the resident's arm in that such finding was not open on the evidence or alternatively was against the weight of the evidence. 15. The Commissioner erred in finding that Mr Prior had twisted the resident's arm in that such finding was not open on the evidence or alternatively was against the weight of the evidence. 16. The Commissioner erred in finding that Mr Prior had been untruthful in evidence he had given. 17. The Commissioner erred in that the totality of his findings of fact concerning the alleged assault by Mr Prior taken as a whole were not open on the evidence or alternatively were against the weight of the evidence. 18. The Commissioner erred in that he failed to apply the appropriate legal test relating to serious misconduct justifying summary dismissal. 19. The Commissioner erred in that he failed to take into account or properly to take into account the fact that the resident was not injured or marked in any way as a result of any contact with Mr Prior on 12 December 2005. 20. The Commissioner erred in that he failed to take into account or properly to take into account mitigation factors, and particularly Mr Prior's totally unblemished record and the lack of training in aggression management. 21. The Commissioner erred in failing to find that the dismissal of Mr Prior was in all the circumstances harsh, unjust and unreasonable. 22. Such other grounds as the Commission may consider appropriate. Leave to Appeal 10 We have decided to grant leave to appeal as we consider that a miscarriage of justice occurred because the fact-finding carried out by the Commissioner was in serious error such that his conclusions were in error and failed to ensure the proper administration of justice. Consideration 11 The Court of Appeal in Samad v Public Service Board (New South Wales) (1983) 5 IR 464 at 466 said that it is a well established and well known rule of conduct that an assault by an employee of a person under institutional psychiatric care will not be tolerated and that employees who breach this requirement will not be retained in employment. We consider that approach to be correct and applicable in cases such as the present. However, it is also undoubted, and consistent with well established principle, that where an allegation of misconduct is raised as a defence or justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden in an evidentiary sense to establish the allegation shifts from, in this case, the Union to the employer: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Budlong v NCR Australia [2006] NSWIRComm 288 at [86] - [87] and [100]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [86]; National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [16]. 12 The Full Bench was also taken to decisions of this Commission, the Government and Related Employees Appeal Tribunal ("GREAT") and its predecessor, the Crown Employees Appeal Board, that involved the striking or assault of a patient by a nurse: (see Stewart and Hunter Area Health Service (IRC 5299 of 1998, 11 November 1998, Harrison DP, unreported); HREA on behalf of Drinan v Hunter Area Health Service [2002] NSWIRComm 270; Abdus Samad v Public Service Board (GREAT Appeal No 1395 of 1982, 5 November 1982); Mason (Department of Public Health) v Public Service Board (Crown Employees Appeal Board, 182 of 1968, 14 November 1968)), which take a similar approach to the Court of Appeal in Samad. 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has been long established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ...

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added). 14 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450, Mason CJ, Brennan, Deane and Gaudron JJ explained the above passage from Briginshaw this way: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added). Errors of Fact 15 The key question raised by the appeal is whether the Commissioner made errors of fact or approach in relation to various aspects of his findings, particularly in respect of the allegation of assault which led to the dismissal of Mr Prior. The appellant referred to the Full Bench decision in New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) (2006) 155 IR 257, which involved a review of findings of fact made at first instance. 16 In the course of deciding that case, the Full Bench held: [19] Similarly, in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 the Full Bench of this Commission held at [7]: ... And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). Importantly in this latter respect, we have in mind the observations by the High Court in London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at p 407 as to the duty of an appellate tribunal, as follows: But where the law says that the Court, and not a jury, is to determine the facts, and also says that an appellate Court can be asked to reconsider them, and therefore should reconsider them, it is the duty of the appellate tribunal (and it is the statutory right of the litigant who invokes it to require of it the performance of that duty) to determine for itself the true effect of the evidence so far as the circumstances enable it to deal with the evidence as it appeared in the Court of first instance. (emphasis added). 17 The critical finding by the Commissioner is set out at [313] of the decision as follows: I am satisfied that he punched Mr D in the arm, slapped him in the region of the head, and in quick succession twisted his arm in an aggressive manner, with little provocation. Such actions did not arise from a legitimate need to extricate the hand of the resident from his person and in the language of some of the relevant authorities referred to by Ms Howell, ( including the Fire Brigades Case listed above). I have found that the conduct constituted a fundamental and wilful repudiation of the contract of employment after taking into account mitigating factors. 18 Ms C Howell of counsel, who appeared for the appellant, essentially submitted that the Commissioner erred in his findings as to the nature and degree of contact between the appellant and Mr D and that such errors are clear, irrespective of any view the Commissioner may have taken as to the credit of witnesses. 19 The Commission, at first instance, should be conscious of the gravity of the allegations made by both sides when reaching a conclusion. Ultimately, however, it remains incumbent upon the Commission, at first instance, to determine the issue by reference to the balance of probabilities. A relevant question therefore becomes: did the Commission, in making the findings of fact at first instance, approach its task by mechanically applying a mere preponderance of probabilities, or, on the other hand, did it reach a state of reasonable satisfaction, bearing in mind the seriousness of the matters alleged? For reasons which we will shortly outline, we are of the view that Murphy C erred in finding on the facts that the allegations of misconduct had been clearly proved, and thus deprived the appellant of relief. 20 The Commissioner's findings were based upon the evidence of four witnesses who deposed to have directly observed the events. The Commissioner proceeded to consider what were different accounts of the contact between Mr Prior and Mr D at the relevant time and then to rely particularly on the evidence of one of the eyewitnesses, Ms Sandra Bowley. She was the only one of the four witnesses who alleged that Mr Prior had engaged in punching, slapping and twisting the arm of the resident. No other witness alleged that Mr Prior had punched the resident and each of the other witnesses, as we will shortly refer to, claimed to have observed lesser degrees of contact between Mr Prior and Mr D. It is on this basis that Ms Howell submits that the Commissioner failed to apply the Briginshaw standard and had he done so, he would, necessarily, have found that there was no assault, or that Mr Prior made physical contact of a much lesser nature with Mr D than alleged by Ms S Bowley. Ms Howell further submitted that in light of certain aspects of Ms S Bowley's evidence, it was unsafe for the Commissioner to have relied upon her as the sole witness to establish the three alleged forms of contact between Mr Prior and Mr D. 21 We agree with this submission primarily for two reasons. First, Ms S Bowley orally reported the incident to the Nurse Unit Manager ("NUM"), Matthew Coventry, at or about 12.30 pm on 13 December 2005. Mr Coventry recorded her version of events as follows: R N Prior was giving a resident his medication which had been placed in his evening meal. The resident had a magazine which RN Prior was taking from him. While attempting to take this magazine the resident hit out [at] RN Prior. TEN Bowley stated that she saw RN Prior hit back at the resident's arm and twist it. 22 The Commissioner made reference to the first version of events by Ms S Bowley in his decision (at [194]) observing that her account changed significantly from the first account given to Mr Coventry. Ms S Bowley, in later accounts, omitted any reference to the resident hitting out at Mr Prior, which unsurprisingly led counsel for the appellant to submit that she wished the worst possible construction put on Mr Prior's actions. 23 When Ms S Bowley was interviewed later on 13 December 2005 by Ms Susan McIver, Executive and Nursing Director, Mr Coventry and Ms Lyn Hamilton, the Employee Relations Manager, she gave the following account: "... CP (Mr Prior) pulled away the magazine. (Mr D) responded by grabbing for the magazine and in doing so grabbed CP by the arm. CP yelled at (Mr D) something to the effect of "don't hit me." Upon releasing (Mr D's) hold, CP slapped JD across the face, punched him in his right arm and twisted his right arm to which JD cried out in pain."

No other witness alleged that Mr D cried out in pain. 24 In her written statement dated 14 December 2005, Ms S Bowley gave this account: (Mr D) had a magazine in his hand. Colin tried to take it out of his hands. (Mr D) reached out to Colin. I heard Colin shout out "don't hit me". I was standing near another resident and I observed Colin use an open hand and hit (Mr D's) head on the left side. He then punched him on his right arm and then bent (Mr D's) right arm. 25 This is the only evidence from a witness who observed the incident, that there was a hit, a punch, and a twist or bending, of the right arm. 26 Ms S Bowley's initial account to Mr Coventry was generally consistent with that of other witnesses. Her later evidence was not. It is significant and of concern that in her first interview with Mr Coventry, she made no mention of Mr Prior punching Mr D. 27 Ms S Bowley denied talking to Ms Fitzgerald during 13 December 2005 about what had occurred between Mr Prior and Mr D. This was in direct conflict with Ms Fitzgerald's evidence that the two had talked about what they had seen on the afternoon of 13 December 2005. 28 On 14 December 2005, Ms Tracey Fitzgerald provided a written statement of the incident. From where she was standing she had a partial view of the resident, Mr D, sitting in a lock up chair. She described his arms being outstretched towards Mr Prior who was standing directly in front of him. Ms Fitzgerald then saw Mr Prior strike out with his right hand in the direction of Mr D and although she did not see Mr Prior's hand connect with Mr D, she did hear it connect. Ms Fitzgerald accepted that she could not be sure that any noise she heard was Mr Prior's hand connecting with anything. Subsequently, she stated in cross-examination that she heard something, but observed the noise could have been someone moving their feet on the floor. From the position of the two, she assumed it to be in the region of Mr D's head. Mr Prior then grabbed Mr D's right arm with both hands and proceeded to squeeze and twist his arm for a period of about five seconds. Ms Fitzgerald also noticed that Mr Prior had a very angry expression on his face. Ms Fitzgerald reported what she had witnessed to Mr Coventry, at 9.00 am on 13 December 2005. 29 There was no evidence of a punch being seen by Ms Fitzgerald. 30 The evidence of the nurses who observed the incident between Mr Prior and Mr D differed in various respects as is not surprising in respect of an incident which occurred in a matter of seconds. Ms Melanni Bridges was standing in the kitchen doorway on the right hand side of the ward and looking into the small area of the dining room when she heard Mr Prior say to Mr D "don't you hit me". She then saw Mr Prior's left hand come into contact with the left side of Mr D's face. Ms Bridges subsequently corrected her evidence stating that Mr Prior's left hand came into contact with the right side of Mr D's face. She took no steps to report the incident because it "didn't qualify as being something serious". Ms Bridges was not asked what she meant by the use of the phrase "come into contact", which of course could mean anything from an incidental brush, a tap, a slap, to a hard slap. 31 The appellant submits that on a proper assessment of this evidence, the contact could not amount to a use of force because Ms Bridges did not think it serious enough to report. 32 Ms Margaret Bowley's evidence was that she was looking down into the dining room when she heard the resident whom she identified as Mr D, say something. She then observed the resident's arms reach out and then observed Mr Prior hit back. She did not have a full view of the resident as this was blocked by part of a wall. She could only see Mr D's arms, but could clearly see Mr Prior. 33 Ms M Bowley stated that she saw Mr Prior grab the resident's right arm and twist it. This was the evidence that she gave in her interview. In her written statement prepared on 13 December 2005, her evidence was she "saw (Mr D's) arm swing out to hit at Colin and he also yelled something. Colin then swung his arm, I am not sure whether he put (Mr D) back down into the chair or what as I was unable to see (Mr D) from where I was. I then saw Colin grab (Mr D's) arm." Ms M Bowley described how she and Ms Fitzgerald had then looked at each other and that Ms Fitzgerald said something like "that was a bit excessive" or something like that and she had agreed with her. 34 It is from this evidence that the Commissioner found that Mr Prior hit, punched and twisted Mr D's arm. The Commissioner reconciled the different accounts and the absence of the reference to any punching in Ms Fitzgerald's and Ms M Bowley's accounts of the incident by observing that the criticism that had been made of the differing accounts had not been a concern to him because "it appears only natural that staff acknowledge seeing different parts of the whole exchange, depending upon where they stood and when they looked up". In the Commissioner's view, the differences, in fact, made the accounts more realistic and credible. The difficulty with this approach is that it is not what the evidence disclosed. There is no evidence at all to suggest that Ms S Bowley was in a better position to see what had happened or that she was watching for a longer period of time than the other witnesses. The Commissioner also noted that the evidence of the key witnesses was that they were alerted to the incident by the comment of Mr Prior who was alleged to have said, "don't you dare hit me" or "don't you hit me". It was this comment that caught the attention of the witnesses and caused them to look up. Ms Fitzgerald's evidence was that her attention was attracted by this comment. In such circumstances, it would be more likely that there was little difference in the versions of each witness. 35 Ms S Bowley's evidence was that the contact which constituted an assault, she alleged, occurred after Mr Prior said "don't you hit me". After this comment, Ms S Bowley saw the hit, the punch and the grabbing of the arm. All of the other witnesses gave evidence that they heard the words along the lines of "don't you hit me". They looked up but saw something quite different to what Ms S Bowley said she saw. 36 In relation to Mr Prior's claim that the resident grabbed his shirt, the Commissioner was faced with a similar assessment of the evidence. The Commissioner found that it was unlikely the resident grabbed Mr Prior's shirt because the witnesses all looked up at the time when Mr Prior said "don't you hit me" and therefore should have seen any shirt-grabbing. The Commissioner rejects the evidence of the shirt grabbing because no one saw it, but when analysing the evidence in respect of the hit and the punch which neither Ms Fitzgerald, nor Ms M Bowley saw, he concludes they must not have been looking at that time. 37 In our view, there is an inconsistency in the manner in which the Commissioner resolved the conflicts in the evidence as to what the witnesses saw. Either the witnesses were not looking and they could not have seen the shirt grabbing, or they were looking and they would have seen the punch. We will return to deal with the issue of shirt grabbing later. 38 The second reason why we are of the view that it is unsafe to rely on Ms S Bowley's evidence is the Commissioner's finding that witnesses must have had their vision, or their view of the incident somehow impaired. The witnesses' evidence was that they could fully, or partially at least, see the resident so there was nothing to suggest that witnesses in any way had their vision of the incident impaired. Both Ms Fitzgerald and Ms S Bowley could clearly see Mr Prior. However, the Commissioner appears to conclude that Ms S Bowley could see more of the incident. Importantly, during cross-examination, Ms S Bowley gave the following evidence in which she displayed an inability to answer questions about the incident: Q: Were you standing stationery as your eyes were glued to Mr Prior, or were you moving around at the time? A: Moving around. Q: I'm sorry? A: Probably moving around. Q: Okay. Do you say you watched the whole incident from start to finish, or did you turn to look when you heard a commotion? A: It just all happened so quick, it was just a commotion right from the beginning really. I heard - yes. Q: When you say it all happened so quickly-- A: It did. Q: --how quickly do you say it all happened? A: Well, I heard him yell, "Don't hit me", and it was just like a tussle with a magazine. Q: Yes, and I asked how long do you say the whole thing was from start to finish? A: 30 seconds. 30 seconds, I don't know. Q: You don't know? A: No. Q: As that 30 seconds was ticking away, did you stay in the same spot or did you move? A: I think I stood there, I don't know. Q: You don't know? A: No. Q: I'll just ask you, Ms Bowley, that you mark where you think you were standing on this plan. You see that that's the kitchen are and that's the dining area. A: I've got no idea. No idea. I think I was around here somewhere. I don't know. I really don't know. Q: If you don't know, you don't know.. A: I really tried to do that with the nursing staff before and it was six months ago. Q: And what, you were unable to do it then? A: Yes, I said whereabouts I was, but I was walking around. Q: You were walking around. Was there another resident sitting immediately next to Mr Prior or along the same wall? A: I don't know. Q: You said that Mr D had a magazine in his hand? A: Yes. Q: Which hand did he have the magazine in? A: I don't know. Probably both hands, I don't know. 39 It is clear Ms S Bowley was uncertain where she was standing when the incident occurred. This makes it extremely difficulty to compare what Ms M Bowley and Ms Fitzgerald could see with what Ms S Bowley said she could see in respect of endeavouring to determine whether she had a better view or not of the incident than anyone else. It follows, in our view, that there was no basis for the Commissioner to conclude that Ms S Bowley had a better view than anyone else of what was happening or that her version of events should in any way be given primacy over the evidence of other witnesses, particularly in respect of her evidence regarding the hitting and punching. 40 Ms S Bowley is the only witness who alleges that there was any punch which followed a slap to the head. To the extent that Ms Fitzgerald and Ms M Bowley gave evidence of some kind of movement which might be a hand making contact with the head, if they saw that, it seems to us to logically follow that they would have seen the punch because, according to Ms S Bowley's evidence, it came immediately between the alleged slap and the alleged arm twist. Ms Fitzgerald's evidence was that she saw a movement which resembled a slap and then saw a movement which could have been described as an arm twist, but she did not see a punch. She had an unimpeded view of the incident. Ms M Bowley, to the extent that she says she saw a movement by Mr Prior of his arm, which resembled a slap would have seen a punch if it occurred because her evidence was that she saw his arm move, although she was not sure for what purpose. She then saw Mr Prior grab the resident's arm. She saw the slap and the arm grabbing, or twisting, but not the punch. 41 Ms S Bowley's evidence is that she saw three distinct movements, the slap, a punch and an arm-twist. Ms Fitzgerald and Ms M Bowley saw two movements, one of which appears to be consistent with a slap and the other consistent with pushing or twisting of the arm. The Commissioner found three movements, based on Ms S Bowley's evidence. 42 In our view, had the Commissioner properly weighed this evidence, he could not have been comfortably satisfied that the evidence supported the finding that a punch occurred between the slap and the arm-twist because Ms Fitzgerald and Ms M Bowley were not looking, or their view was impaired. The evidence taken as a whole, does not support three forms of contact between Mr Prior and the resident. 43 Mr Prior's evidence was that he could not recall whether he said something like "don't hit me", or "don't you dare hit me". His evidence was that "I removed the magazine from Mr D and placed his meal in front of him on the table. Mr D then punched me in the left upper arm and grabbed me by the shirt. I then had to prise his fingers from my shirt and move his hand away. He then began eating his meal". The only witness who observed Mr Prior being grabbed on the arm by the resident was Ms S Bowley. The other witnesses did not exclude the possibility of the resident grabbing Mr Prior. However, their evidence is less precise and refers to "outstretched arms" by Mr D. 44 Assuming that Mr Prior said something like "don't hit me", it would seem more likely than not, that the shirt grabbing, to the extent it may have occurred, is more likely to have occurred before the punch, slap and arm twisting said to have concluded the exchange between Mr Prior and Mr D. If the witnesses did not see the shirt grabbing, which they should have, it is not plausible that three of the witnesses did not observe the punch. Both Ms Fitzgerald and Ms M Bowley did not see Mr D grab Mr Prior's shirt, but they did not completely reject that it may have occurred. 45 There are a number of other aspects of Ms S Bowley's evidence that, in our view, were so problematic that the Commissioner could not safely have relied upon her as the sole witness to establish the alleged three forms of contact by Mr Prior. These include the following: (i) by the time of the interview, and her written statement following the interview, Ms S Bowley omitted her earlier description of seeing Mr D "hitting out" at Mr Prior, but could give no explanation for this; (ii) by the time of giving her evidence, Ms S Bowley could no longer remember whether or not she saw Mr D "hit out" at Mr Prior, notwithstanding including it in her initial report; (iii) Ms S Bowley also stated at the interview that she "thought CP had broken (Mr D's) arm". However, she neither reported the incident, nor examined the resident. She merely observed that the resident was moving his arm in the process of eating the meal served to him by Mr Prior. The undisputed fact that, following the exchange with Mr Prior over the magazine, Mr D proceeded to consume the meal served to him leads to the likelihood that the exchange was of such a minor nature that Mr D was not injured or upset. If the exchange had been as violent as Ms S Bowley describes, it is less likely that Mr D would continue to act routinely. Accordingly this evidence favours acceptance of Mr Prior's version of events; (iv) Ms S Bowley denied talking to Ms Fitzgerald on 13 December 2005 about what had occurred. This was in direct conflict with Ms Fitzgerald's evidence that they had talked about what they had both seen in the afternoon of 13 December 2005. As the Commissioner recorded in his summary table of the evidence, both these witnesses stated in their original interviews that the words used by Mr Prior were "don't hit me" but in their subsequent "reports" altered the words to "don't you dare hit me"; (v) Ms S Bowley also displayed an apparent inability to recall the most simple of details regarding the incident during her evidence. This included that she could not recall if the resident had been violent towards her; she could not recall anything whatsoever that was said in the meeting with Mr Coventry on 13 December 2005; she could not remember where she was standing when the alleged incident between Mr Prior and the resident occurred; she could not remember which arm the resident was holding the magazine in; she could not remember with which hand Mr Prior allegedly punched the resident; she could not remember which hand or hands Mr Prior used to twist or bend the resident's arm. 46 Any of these matters in isolation may not be significant but taken as a whole, they have the capacity to result in a conclusion that Ms S Bowley had a very poor recall of the detail of the events with the exception of the hit, slap and punch. This is important in this case because the Commissioner has made a determination that the evidence of Ms S Bowley should be preferred over that of Mr Prior and the other witnesses in respect of any matter in dispute. 47 In dealing with the evidence of Ms M Bowley, who did not see the punch to the arm and the evidence of Ms S Bowley who did, the Commissioner determined that Ms M Bowley's evidence was of limited value in respect of this allegation, but not inconsistent with what Ms S Bowley observed. We consider that the Commissioner has posed to himself the wrong question regarding the evidence of these two witnesses. The appropriate approach is to determine whether there is evidence to support Ms S Bowley's observations in respect of the punch to the arm. Ms M Bowley's evidence cannot support both the punch and the slap. Importantly, it can only support one of these alleged assaults occurring. She, like Ms Fitzgerald, saw the resident lash out at Mr Prior, saw a movement of Mr Prior's arm and saw Mr Prior take the resident's arm and twist or push it. Properly analysed, this evidence is inconsistent with the evidence of Ms S Bowley in observing three different movements. 48 The same difficulty arises with Ms Bridges' evidence which the Commissioner has treated as consistent with, and supporting, the evidence of Ms S Bowley. Ms Bridges' evidence was that what she saw of the incident did not qualify as being something serious. Accepting this evidence, it cannot support (or be used to support as the Commissioner did) the conclusion, based on Ms S Bowley's evidence, that there was a significant strike, a slap and a punch. Ms Bridges' evidence does not support such a conclusion and is contrary to such a conclusion. 49 By way of a further example, the Commissioner gave weight to the fact that witnesses had not seen Mr D grab Mr Prior's shirt-front, and viewed it as "unlikely that they would have missed such a thing", yet declined to give weight to the fact that no witness, except Ms S Bowley, in her later accounts, claimed to have seen Mr Prior punch Mr D. 50 It was not open, in our view, for the Commissioner to find that there had been a hitting, with any force, on the basis of the evidence of Ms Bridges. It was not suggested by any witness that they saw more than one strike to the head of Mr D, so Ms Bridges could not have seen a different contact to that which Ms S Bowley observed. No witness suggested that there were two contacts to the head. There was no evidence to conclude that the hit was of some force. 51 Turning to the allegation of arm twisting, there is no doubt Mr Prior took hold of Mr D's arm and moved it away from him. What is not clear is the amount of force used by Mr Prior in his contact with the arm. 52 The evidence of Ms Fitzgerald, Ms M Bowley and Ms S Bowley enables a finding to be made that Mr Prior made contact with Mr D's arm by way of grabbing it. Both Ms S Bowley and Ms Fitzgerald refer to Mr Prior twisting Mr D's right arm in their written statements and Ms S Bowley, in cross-examination, describes "twist" as meaning "bent". Ms Fitzgerald makes no reference to twisting of the arm in her interview with Ms McIver on 13 December 2005, although she includes a reference to "twist his arm" in her written statement of 14 December 2005. In cross-examination, Ms Fitzgerald's evidence was that she had seen Mr Prior "grab" Mr D's arm. She agreed Mr Prior "twisted his arm back", concluding that this all means the same thing. Ms M Bowley's evidence, in cross-examination, was that Mr Prior "pushed it (the arm) down to the table with more force than I thought would have been necessary". 53 Although the Commissioner refers to the evidence of "arm twisting" he makes no finding as to what is meant by the twisting of the arm. A further troubling aspect of this evidence was that Ms S Bowley's evidence was that she thought at one stage, the resident's arm may have been broken. However, no medical assistance was provided to Mr D, nor is there any evidence of him complaining later in the evening in respect of his arm. 54 Each of the witnesses have different versions of the twisting of the arm. This has led us to conclude that it would be unsafe to find that a twisting of the arm occurred. There is no doubt, on the evidence, Mr Prior bent Mr D's arm in placing it back on the table. The different versions may be the result of Mr Coventry meeting with all four witnesses at 1.00 pm on 13 December 2005. 55 The Commissioner's findings in respect of slapping and punching were contrary to the weight of evidence. We do not consider that the evidence permitted the Commissioner to conclude, to the Briginshaw standard, that Mr Prior's reaction involved any significant level of violence or aggression towards Mr D, and certainly not violence or aggression that would justify summary dismissal. 56 It is also necessary to briefly deal with the evidence of Mr Prior that Mr D grabbed his shirt. This is of some importance because it affects the question of whether Mr Prior could have stepped back when Mr D, who was known to be aggressive and engage in violent behaviour, became aggressive. The proportionality of his response raises questions of mitigation. The Commissioner did not make any express finding about whether the shirt grabbing occurred, or not, but described it as "highly unlikely". This was despite the evidence of Ms S Bowley, who said Mr D "grabbed Mr Prior by the arm". 57 Mr Prior's statement, which he prepared on 13 December 2005, the day after the incident and before he was aware of the nature of the allegations being made by the other nurses, stated that at approximately 1700 hours he crushed Mr D's medication and put it in his mashed potato. He then took Mr D's dinner to him. Mr D was sitting restrained in a security chair. He was playing with a magazine which prevented Mr Prior from placing his meal on the tray in front of him. Mr Prior removed the magazine from Mr D and placed the meal on the table. Mr D then punched Mr Prior in the left upper arm and grabbed him by the shirt. He then had to prise his fingers from his shirt and move his hand away. Mr Prior walked back to the medication trolley to continue medications, observing Mr D eating his meal. 58 The Commissioner treated Mr Prior's evidence with some scepticism. The basis for this appears to be that Mr Prior did not raise this issue at the interview that occurred on 13 December 2005, but waited until the interview on 20 December 2005. However, there was no "interview" on 13 December 2005 with Mr Prior. A meeting occurred between Mr Coventry, who was not conducting the investigation and Mr Prior on 13 December 2005, when he was advised that he was suspended from duty. He was not told what had been alleged against him, only that it was alleged he had been involved in an assault. Mr Coventry recorded that Mr Prior had informed him that a resident known to have aggressive behaviour, did act unreasonably towards him and he was placed in a situation where he had to defend himself. He felt that he had done so in an acceptable manner. 59 Later, on 13 December 2005, before being provided with any details of the allegations, Mr Prior recorded, in writing, his account of what happened, including that Mr D had grabbed him by the shirt. He was not asked to provide his account of the events until the disciplinary interview which occurred on 20 December 2005, at which time he provided the written statement which he had prepared on 13 December 2005. 60 It was not open for the Commissioner to conclude that Mr Prior had not raised his claim that Mr D had grabbed his shirt until the meeting of 20 December 2005, as he was not provided with details of the allegations, or given an opportunity to respond until 20 December 2005. Further, it was not open to the Commissioner to take into account, that he had not offered any "greater particulars" of his response, after he received copies of witness statements. There was simply no basis to consider that this conduct by Mr Prior made his claim that Mr D grabbed him by the shirt, suspicious. This led the Commissioner not to place any weight on the fact that the incident may have commenced with a significant degree of aggression from the resident. Furthermore, it was not open to the Commissioner on a proper analysis of the appellant's evidence to find that he had been deliberately untruthful. The evidence concerned a brief incident which, on a proper consideration of all the evidence, was over in a few seconds. Mr Prior was not asked to give an account of what happened the day after it occurred. In our view, the finding by the Commissioner that Mr Prior had not raised his claim that Mr D grabbed his shirt was not open. 61 There are also a number of logical difficulties in the approach taken by the Commissioner in his lengthy analysis of the evidence against Mr Prior recorded at paras [296] to [303] of his decision which illustrate the concerns we have reached in respect of the decision under appeal. It is sufficient to refer here to the view formed by the Commissioner that the evidence of Ms S Bowley was the most reliable evidence notwithstanding a number of significant concessions she made in cross-examination. Further, the Commissioner makes reference to the evidence of other witnesses, which was inconsistent with that of Ms S Bowley, or not fully consistent with it, such evidence is discounted as being unreliable, of limited value, or consistent with some other part of what Ms S Bowley said she had seen. 62 We do not consider the approach adopted involved a proper weighing of all the evidence on the relevant aspects and, when properly analysed, shows reliance on conclusions reached as part of the reasoning process to reach the conclusions themselves. 63 These errors resulted in the Commissioner not being in a position to properly weigh the evidence and determine whether or not the dismissal was harsh, unjust, or unreasonable. 64 The Commissioner determined that the conduct of Mr Prior constituted a "fundamental and wilful repudiation of the contract of employment after taking into account mitigating factors." 65 We do not agree that it was open to the Commissioner to conclude that Mr Prior's conduct was wilful. Having made this finding, the Commissioner found that the dismissal was not unfair on this basis alone. Although the Commissioner took into account Mr Prior's six years of unblemished employment and the implications of the dismissal on his future career, he did not take into account such relevant factors that would properly have included the fact that aggressive behaviour on the part of Mr D provoked the response from Mr Prior; the fact that Mr D was not injured or marked in any way, suggesting that the response was at the appropriate level, and the failure of the respondent to provide 16 hours of mandatory training, required by the Department of Health, in management of difficult and aggressive behaviour. 66 These circumstances should have ameliorated the gravity of the conduct found by the Commissioner. Certainly, there was no factual basis to find that an assault had occurred. 67 Properly considered, the evidence must lead to the conclusion that the dismissal of Mr Prior was harsh, unjust and unreasonable in all the circumstances. Even taking the respondent's case at its highest, Mr Prior was guilty of a momentary lapse, responsive to some level of aggression by Mr D, in circumstances where he had an unblemished employment record. 68 The long established industrial approach to whether certain conduct justifies summary dismissal was stated by Cook J in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374 in terms that: ... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike out an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. ... 69 We would conclude on the evidence that findings may be reached to a state of reasonable satisfaction that Mr Prior grabbed the arm of the resident after the resident had "lashed out", "hit out" and/or was "swinging his arms to hit Mr Prior" and that Mr Prior made contact with his right hand to the resident's head. The Commissioner disregarded the fact that the incident commenced with a real amount of aggression from the resident, which we find, on the evidence, occurred. We also conclude that the evidence, when correctly assessed, made unsafe a finding that Mr Prior acted other than on a protective basis. 70 In light of these findings, we do not consider that the appellant's conduct here could properly be regarded as Cook J observed "of such a nature as to strike out an essential element in the contract of service". We conclude, therefore, that the findings made by the Commissioner as justifying the appellant's summary dismissal were not established. We have found that the Commissioner's findings manifest sufficient error to warrant an exception to the rule of appellate restraint: see Austin v NF Importers Pty Ltd & Anor at [6]. 71 Another ground of appeal relied upon by the appellant was that the failure of the respondent to provide appropriate training to Mr Prior concerning management of aggression and violence in the workplace rendered the dismissal harsh, unjust and unreasonable. We agree with Mr Ginters' submission that such an approach is erroneous. In our view, nursing staff, teachers, police officers, and prison officers, to give but four examples, do not need a structured training course to educate them not to assault persons in their care or under their control. This should be self-evident and generally not require formal training. However, it is important to bear in mind that the New South Wales Occupational Health and Safety Legislation requires employers to provide their employees with information, instruction and training necessary to ensure their health and safety, and this is particularly important in the context of workplace violence. 72 In light of the findings that we have made, which will result in the appeal being upheld, the appellant's reliance on the training issue is misplaced. We would observe that there must be a limit upon the capacity of an employee to rely on a failure to be trained in accordance with programs that the employer may or may not have implemented to excuse or explain an inappropriate response, notwithstanding even extreme provocation. 73 The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. The respondent asserted that reinstatement would be impracticable but that assertion was in part based on the allegations against Mr Prior being made out which is not in fact the case. In any event, there was no evidence of impracticability before Commissioner Murphy and we are 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 Limited (1997) 72 IR 186 at 191 - 192, where their Honours observed that "[e]ach case must be decided on its own merits" but that "[i]n most cases, the employment relationship is capable of withstanding some friction and doubts". As their Honours further observed "[w]hat is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive" and that "[i]f the employer is of even average fair mindedness, (the problems) are likely to prove short lived". Those comments were cited with approval by the Full Bench in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [35]. 74 The only hesitation we have arises from the consideration that a number of other employees at the Garrawarra Centre gave evidence against Mr Prior and that may present some difficulties in returning to that location, albeit, difficulties falling far short of impracticability in any relevant sense. In those circumstances, it may be prudent to frame the relevant orders in the alternative to permit agreement being reached between the parties as to employment of Mr Prior at an alternative location within the respondent Area Health Service.

ORDERS 75 The Full Bench makes the following orders:

The appeal is upheld and the decision of Commissioner Murphy given on 17 October 2006 is quashed.

The respondent is ordered to reinstate the appellant within 14 days in its employ in his former position as a registered nurse at the Garrawarra Centre or in such other position in its employ as agreed between the parties.

The respondent shall pay to the appellant the remuneration he would have received, but for being dismissed, from 17 October 2006 to the date of reinstatement, less any remuneration earned by the appellant from other employment during that period.

The period of employment of the appellant with the respondent shall be taken not to have been broken by the dismissal on 6 January 2006.

Liberty to apply within 14 days as to the final form of orders 3 and 4 in the event that the parties are unable to reach agreement on any aspect thereof. Such liberty shall be exercised on written application to the Associate to Staff J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.