SUBMISSIONS
96It was submitted by Mr Pearce, on behalf of the Applicant, that the dismissal of the Applicant was harsh, unreasonable and unfair because the Respondent failed to afford Mr O'Donnell procedural fairness for the following reasons:
(a) The Respondent based its decision on matters that have no bearing on the termination of the employment; the dismissal was not a commensurate penalty for the conduct of the Applicant on 6 July 2011 if regard is had to the mitigating circumstances that existed, viz. his health condition which was a contributing factor; the likelihood that the Respondent breached Section 49D (2)(c) of the Anti-discrimination Act 1977 by its failure to take account of that health condition; and, the failure of the Respondent to consider the outcome of the local court proceedings.
The failures outlined above demonstrate that the Respondent did not adhere to the principles of natural justice nor did it ensure procedural fairness throughout the process.
97Mr Mullins said he terminated the Applicant upon being satisfied that the assault on Mr Novotny was unprovoked. Mr Pearce pointed out that the evidence refutes this version of events.
98The Union had written to the Respondent objecting to the matters that had been taken into account in arriving at a decision to consider terminating the Applicant. Mr Pearce pointed out that the Union had objected to consideration of the fact that there were local court proceedings on foot which were yet to be finalised; alleged previous breaches of discipline and Mr O'Donnell's service record.
The Respondent did not take into account the local court proceedings in arriving at a decision to dismiss the Applicant but gave no such undertaking in relation to alleged previous breaches and his service record. Mr Pearce submitted that the Union did not intend to exclude consideration of the local court proceedings. Rather, it intended that the Respondent await the outcome of such proceedings.
99Mr Pearce pointed out that the alleged previous breaches ought not to have been taken into account bearing in mind that no disciplinary action had been taken against the Applicant in relation to same. The service record have not been produced and therefore also ought not to have featured in the decision making process.
100It was pointed out that the Union contends that there was no urgency in arriving at a decision to terminate Mr O'Donnell the day before he was to appear in the local court and questions the timing of the delivery of the letter of termination.
101The charge against the Applicant was conditionally dismissed by the local court. It was point out that Mr O'Donnell has fully complied with the conditions placed upon him. It was also pointed out that none of the conditions either prevent the Applicant from performing the functions of a firefighter or present any burden on the Respondent. Indeed, it was submitted, the Respondent has currently in its employment other employees who suffer from the same or similar condition and who are frontline fully operational fire-fighters.
102It was pointed out that the Applicant recognised that his actions were out of character and sought medical assistance in relation to his mental health. Unfortunately, it was submitted, the Respondent has failed to give consideration to the fact that his mental health condition was a significant contributing factor to the incident on 6 July 2011 despite being aware of it since the lodgement of his workers' compensation claim on 20 October 2011.
103Mr Pearce submitted that the Respondent's disciplinary procedures have been criticised in the past by Sams DP for a similar denial of procedural fairness in an unfair dismissal case: New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440.
104The Union contends that the Applicant's disability falls under the definition of "disability" in that Section 4(e) of the Anti-Discrimination Act 1977 defines it as being "(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". On that basis, it was concluded that the Respondent unlawfully discriminated against the Applicant when it terminated his employment for a matter that was contributed to by his disability: (section 49D (2)(c)).
105It was pointed out that it was one-off episode of misconduct, "a single outworking of his condition" which has since been diagnosed and controlled. The treatment does not require any accommodation by the Respondent and it does not require the Respondent to tolerate any on-going criminal or quasi-criminal behaviour. It was concluded that the matter should be treated as a characteristic of the disability and the termination should be therefore be considered to be a consequence of that disability.
106Mr Pearce went on to address the issue of penalty. The penalty afforded to Mr O'Donnell was compared to penalties awarded for comparable workplace incidents both within the Respondent's department and more broadly: Huggins v Mullins [2011] NSWSC 1123; Mourad v RailCorp [2011] NSWTAB 5. The current matter was distinguished from those matters in that the matter involving the Applicant is of far lesser gravity than in Huggins and, although in appropriate, was not malicious or intended or calculated to do harm: Mourad.
107It was submitted that favourable consideration has to be given to the fact that Mr O'Donnell has admitted that his behaviour was wrong, has expressed remorse, apologised and undertaken not to repeat his behaviour: Mourad.
108Similarity was drawn between Mr O'Donnell's circumstances and the position presented in Crutcher v RailCorp [2011] NSW TAB 15 in that Mr O'Donnell also has had an unblemished record with the Respondent and he is suffering from a diagnosed major depressive disorder and post traumatic stress disorder which were significant contributing factors to the incident.
109 Mr Pearce relied on the well-settled applicable principles as follows:
(i) It is appropriate to take into account the facts of the Applicant's illness at the time of the impugned conduct and the medical evidence at the time of termination in determining whether the dismissal was harsh. In that regard the Applicant relied on the well-settled principles set out in Police v Eade-Smith [2010] 200 IR 424 and Wells v Commissioner of Police [2000] 100 IR 106.
(ii) It is appropriate to take into account the facts of the Applicant's illness at the time of the impugned conduct, because when mental illness contributes to the impugned conduct, in a material way, the Applicant's moral culpability will be reduced. For this reason dismissal may not be warranted when it might otherwise be appropriate: R v Pham [2005] NSWCCA 314.
(iii) The finalisation of disciplinary proceedings and termination of the employment of an Applicant prior to the conclusion of concurrent criminal proceedings may be in the appropriate circumstances, and in its own right, harsh, unfair and unjust: Murray Irrigation v Balsdon [2006] 67 NSWLR 73; Edelstein v Richmond [1987] 11 NSWLR 51.
(iv) In dismissals involving assaults in the workplace it is necessary to consider all of the circumstances surrounding the events including the relationship between the individuals concerned and whether there was provocation: Cronulla Sutherland Leagues Club v Gow [2002] 119 IR 122.
(v) Is the act complained of deliberate, wilful, and of such a nature as to strike at an essential element of the contract of service? The question of whether the conduct was wilful and deliberate focuses attention on the Applicant's state of mind at the time of the conduct, and hence, his mental illness: Casari v Sydney South West Health Service [2009] 185 IR 217.
(vi) In a dismissal where the employer alleges the existence of clause justifying termination of employment the employer must prove the misconduct which is alleged including the requisite state of mind of the Applicant: Franklins Ltd v Webb [1996] 72 IR 257.
(vii) If a dismissal is harsh, unfair or unjust reinstatement is the primary remedy. It is only where it is impracticable to reinstate an Applicant that the other remedies available under s 89 of the Act may be applied: Casari; Hollingsworth v Commissioner of Police [1999] 88 IR 282.
(viii) The advent of corporate employers has diminished the importance of this element of trust and confidence in employment relationships because corporate employers have no sensitivity: AMIEU v G & K O'Connor (2000) 100 IR 382; and vendetta is not the Australian way: Patricks v MUA (1998) 153 ALR 626.
110Mr Pearce addressed the evidence under the following headings and referred to the evidence before the Commission in support of those headings :
(A) The Applicant was suffering from major depressive disorder with significant anxiety component at the time of the impugned conduct.
(i) The Local Court issued a section 32 (3)(a) certificate which required the Applicant to adhere to a treatment plan;
(ii) a diagnosis by Dr Naidoo that the Applicant was suffering a major depressive disorder with significant anxiety component at the time of the incident; and
(iii) a finding by Dr Kaplan that he was suffering from a major depressive disorder which was in remission and alcohol abuse which was also in remission. Dr Kaplan gave evidence that whilst he could not be specific as to when that started, Mr O'Donnell certainly had a mental illness at the time of the earlier assault incident in 2004 if not longer. He agreed that the Applicant was certainly suffering from that mental illness on 7 July 2010.
(B) The Applicant's illness was a significant contributing factor to conduct on 7 July 2011 and his state of mind.
(i) The section 32 (3)(a) certificate required the Applicant to adhere to a treatment plan;
(ii) Dr Naidoo reported "He would by the nature of his illness have been vulnerable to stressors at the time. His raised anxiety levels would have been a significant source of this vulnerability and his frustration tolerance level would have been significantly compromised by his illness... his psychiatric symptoms ... lead him to be vulnerable leading to the event where he pushed his colleague".
(iii) Dr Kaplan agreed that he did not express any view about whether the Applicant's actions were prompted in any way by his mental illness.
(C) The Applicant now is fit to work and there is no likelihood of relapse.
(i) Dr Naidoo responded positively on a number of occasions in his report and in his oral evidence:
".... his prognosis is very good. Given the above, taken with conjunction with his current state, there appears to be no evidence to believe that he would not be able to return to his work and behave in an appropriate manner there.
"One would have to be optimistic about his prognosis".
Camden: Doctor, in your professional opinion does Mr O'Donnell have insight into the serious nature of his assault on Mr Novotny?
Naidoo: Yes.
Q: He does? And did he ever tell you of the nature of the injuries suffered by Mr Novotny?
A: Yes, he did tell me. Yes.
Q: Yes he did, okay. Doctor would it be fair to say that Mr O'Donnell is an aggressive individual?
A: Not in my understanding of him, no.
........
Q: Doctor in your report of this month, you say that you can give no absolute guarantee that there will be no relapse of either Mr O'Donnell's drinking disorder or of anything else. Now in your opinion if a relapse occurred is it more likely than not to be another violent episode?
A: No, what I meant by that is I meant that obviously in depression, major depression, or in alcohol abuse I suppose, you can't say that the person may not become depressed again, or in fact abuse alcohol again. That's what I meant. I certainly wouldn't have thought that an aggressive outburst, especially given in what's happened and his insight and understanding of the situation, I would have thought that would be extremely unlikely.
(ii) Dr Kaplan also responded positively on a number of occasions in his report and in oral evidence:
"It would be reasonable for him to return to work provided he is under the care of a psychiatrist for 2 years after he returns".
Camden: From your review and talking to Mr O'Donnell do you feel that he displayed insight into the actions and the consequences on 6 July?
Kaplan: I think - thought he was very remorseful, so I would assume that implied a degree of insight.
Pearce: Was assisting him in his recovery, you actually concluded he'd recovered, didn't you?
Kaplan: Well yes he ..
Q: He was in - sorry, was in remission, you actually concluded he was in remission didn't you?
A: Yes, he'd stopped drinking which was really great.
Mr Pearce suggested that the Commission can make it a condition of a reinstatement order that he remain under the care of a psychiatrist for a period of two years but pointed out that it would not be necessary as the Applicant was very diligent. In addition, Mr Pearce submitted that even if there was a relapse, there was no likelihood of aggression.
(D) Evidence of the circumstances surrounding the Events indicate that the Applicant was provoked or saw himself as provoked before the assault.
Mr Pearce pointed out that Mr O'Donnell had given evidence of that in his written statement. In addition he had provided oral evidence to the following effect:
Camden: What was his [Novotny] tone of voice?
O'Donnell: Belligerent. Very direct, stern.
....
Q: So there's a little bit of a time lapse, you got - you're still there, you're eating your dinner, you've got some time to think about it, maybe 30 seconds, maybe 20 seconds, why'd you push away from the table and go over to him?
A: I wanted to know why he was wanting to make such an issue of the whole thing.
Q: Well weren't you making an issue of it?
A: Well he just kept offering, without me saying anything more he just kept saying something more, like it was sort of a baiting. Sometimes he'd initiate something that I'd finished saying what I'd said.
...
Q: What prompted you to push him Mr O'Donnell?
A: I guess I was aggravated by the lengths that he'd gone to to aggravate me.
....
Q: I want to make sure I clearly understand what you just said. You've just told the Commissioner, and I'm summarising here, that by pushing this man you intended him to turn and do something to you, is that correct?
A: Well that's what he seemed - he seemed to want to bring the whole thing to a head.
Q: Had he shown you any physical aggression before you pushed him in the back?
A: Yes.
Q: How did he do that?
A: In the workplace he would ...
Q: I mean that evening. That evening.
A: Not that evening, no, but on other occasions. In the workplace he'd push my headset off my head.
....
Q: So you wanted to provoke something further from Mr Novotny?
A: I guess I'd reached a point where I thought if I don't confront him this could go on for who knows how long.
....
Q: Do you agree that this isn't just a simple push shove?
A: ... I never intended to incur that sort of injury on him. I've never, never ever, done anything like that to any of my work colleagues and the whole thing upsets me.
Mr Pearce turned to the affidavit of Mr Lynch which described the exchange between the Applicant and Mr Novotny as "playful banter".
During examination-in-chief, Mr Lynch gave evidence that "the TV was on quite relatively loud".
Pearce: Do you recall what happened then?
A: I do. I believe at that stage Pav may have entered the argument at that point or the discussion I should say...
...
Q: Did Pav raise his voice a little bit?
A: Umm - I would say probably yes.
Mr Lynch gave evidence that Mr O'Donnell never went back again and approached Mr Novotny a second time.
Q. Can I suggest to you that Brenden said in front of the three of you, he's always having a go at me, any chance he gets he has niggle. He's an ignorant - then he used an expletive,, he has no respect, is that?
A: Words to that effect I do remember. I remember saying, he's always having a go at me and the respect part.
Q: Can I suggest to you that he might have said more than once that he was disrespectful, he has no respect, he's always on my back?
A: Yeah.
...
Q: No other fire fighter in the room said anything in response to that, did they?
A: Well, no.
In relation to the evidence provided by Mr Muzyczka, Mr Pearce drew the Commission's attention to his affidavit evidence as well as his oral evidence:
Mr Muzyczka had referred to the discussion between the Applicant and Mr Novotny "like normal stirring between fire fighters". He demonstrated a poor recall of the detail of the conversation during cross-examination.
Pearce: But didn't he - well can I ask you this, didn't he say to you afterwards, immediately afterwards, he's disrespectful, he had no respect, he's always on my back?
Muzyczka: That's correct.
...
Q: Okay. And you also heard him say he's going around, sorry, you also heard him say he's always - he's disrespectful, he has no respect, he's always on my back?
A: Yes I did.
Q: ..... and I think Mr Pearson and Mr Lynch were present when that was said?
A: That's right.
In relation to the evidence provided by Dr Kaplan, Mr Pearce drew the Commission's attention to his oral evidence:
Pearce: And also can I suggest to you that Mr O'Donnell said not long after the incident "he's disrespectful", about Mr Novotny, "He's disrespectful, he has no respect, he's always on my back"?
Kaplan: I do recall Mr O'Donnell saying that Mr Novotny was disrespectful and quite possibly the other phrase.
Q: Can I suggest to you that at least from Mr O'Donnell's point of view as indicated by those statements there was an element of provocation in the incident? Do you agree with that?
A: Yes. Yes, I was left with no doubt that Mr O'Donnell saw himself as being provoked.
Mr Pearce then referred to the evidence of Mr Novotny who confirmed that personally he would find it offensive if someone suggested to him that he was not part of the team; that Mr O'Donnell was definitely not a person, as at 7 July, that one could banter with; he felt the need to correct Mr O'Donnell in relation to not being aware of the pizza night; he accepted that the correction was a criticism of Mr O'Donnell and that, ultimately he had the last word on the subject.
As to the evidence of Dr Naidoo, Mr Pearce referred to the response he gave in relation to what had triggered his actions on 7 July. Dr Naidoo responded that the Applicant told him that he felt singled out and he felt particularly picked on, targeted.
(E) Evidence of prior events - relationship between O'Donnell & Novotny had been unsatisfactory for a significant period of time and there was mutual antipathy/friction between them.
Mr Pearce referred to the cross-examination of Messrs Lynch and Muzyczka who confirmed the evidence of the Applicant in relation to Mr Novotny's work performance.
Mr Lynch gave evidence that there was always banter between the Applicant and Novotny but went on to add that it happened a lot with Operators; they pushed one another's buttons; Up to one point, it was 50/50 but towards the end, he told the Applicant that "he was laying it on a bit thick".
Mr Novotny had given evidence of the antipathy and friction with Mr O'Donnell. He pointed out that he never started anything with the Applicant. It was always the Applicant who started the banter and it was always in a crowd and always across the room so everyone else could hear. The Applicant would make comments such as "How do those shoulders hold up that huge head of yours?" He agreed that while he did not initiate anything physical with the Applicant, he had openly criticised him.
Mr McGuiggan prided himself on his reputation for not standing for any sort of workplace bullying. He pointed out that, apart from the report provided by Mr Muzyczka in relation to the incident, he had not received any complaint from the Applicant in relation to bullying.
(F) Re-instatement is practicable - evidence called to the contrary recited rote incantations and was uninformed on the real circumstances concerning the assault. No evidence has been called from the Applicant's actual supervisor saying re-instatement is not practicable.
Mr Pearce pointed out that the evidence of Mr Packham was based on hearsay evidence and was limited to concern about a return by the Applicant to the Communications Centre only.
Messrs Packham, McGuiggan and Brierley admitted, during cross-examination, that they had not been aware that the criminal charge was dismissed because the Court accepted that Mr O'Donnell was not responsible for his conduct on the day because he had a mental illness. Mr Pearce described as "revealing" the evidence given by Mr Honey that the criminal charge had been dismissed because "he was unsound...".
Messrs Packham and Honey both admitted they had not read the evidence provided in these proceedings or the doctors' reports provided by the Applicant. Mr Honey had relied on the report provided by Mr Lord (who was not called to give evidence) in relation to what he termed "a violent unprovoked physical outburst" as he had been on leave at the time of the incident.
Mr Muzyczka was merely concerned about the possibility of a relapse. Mr Honey opined, "I would think anyone with a history of being open to a psychiatric illness, that's not a place for them to go to work".
Mr McGuiggan was emphatic in his response that violence is totally unacceptable in the workplace, provoked or otherwise.
(G) The evidence of Decision maker (Mullins) indicated that many important matters had not been considered in the original decision or thereafter in considering the present application.
Mr Pearce pointed out that the Commissioner had not had regard to, nor appreciated:
the evidence of Mr O'Donnell's major depressive disorder with significant anxiety component;
he fact that the Applicant's illness was a contributing factor to his conduct on 7 July 2011;
the significance of that evidence nor the significance of the Local Court findings;
the circumstances surrounding the event which indicated that the Applicant had been provoked; and
the unsatisfactory pre-existing relationship between the Applicant and Novotny.
Mr Pearce submitted that the evidence of the Commissioner revealed a rigid application of a "blind" policy - the type of conduct that was criticised in Burge - pointing out that, had there been physical or other provocation proven, then two people rather than one would have been facing disciplinary proceedings.
111In conclusion, Mr Pearce made the following points in support of the Applicant's claim for immediate reinstatement, with no break in continuity of service and back pay for the period since the termination:
The Applicant pleaded guilty at the earliest opportunity;
He accepted full responsibility for his actions and demonstrated significant contrition for his role in the events that led to his suspension and charge;
He has apologised unconditionally for his action;
The action was neither systemic, nor ongoing and occurred only once;
He understands the full ramifications of his actions and immediately sought to rectify his behaviour and seek professional assistance;
this professional assistance has since resulted in him being diagnosed with post traumatic stress disorder and major depressive disorder that was previously undiagnosed at the time of the incident and a significant contributing factor that led to the incident;
Mr O'Donnell has fully complied with his Court order and treatment regime;
Mr O'Donnell has acknowledged that his conduct fell below an appropriate standard during this incident, and
He has behaved with grace and an understanding of the gravity of his actions.
112Ms Camden, on behalf of the Respondent, urged the Commission to place significant weight on the evidence adduced during the proceedings. That evidence was addressed under the sub-headings set out below. It was pointed out that the evidence confirms the following: