Sheridan v Health Secretary in respect of the Illawarra Shoalhaven Local Health District

Industrial Relations Commission (NSW)|2021-03-16

decision

Brett Sheridan was employed as a Security Officer at the Shellharbour Hospital. During a shift on 27 September 2019, and on the hospital premises, he got into a fight with a co-worker. Following an investigation by his employer, Mr Sheridan was found to have engaged in misconduct and was dismissed with immediate effect on 3 August 2020.
On 7 August 2020 Mr Sheridan filed with the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"), claiming that his dismissal was harsh, unreasonable and unjust. He seeks reinstatement to his position.

Factual context

Mr Sheridan has worked as a Security Officer, or in similar roles, since 1999. He commenced employment as a Security Officer in the NSW Health Service, working for the Illawarra Shoalhaven Local Health District ("ISLHD"), from 1 October 2012. He started at Bulli Hospital and Coaldale Hospital, before moving to Shellharbour Hospital in 2014. He remained employed at Shellharbour Hospital until his dismissal.
Prior to commencing employment with the ISLHD, Mr Sheridan was provided with a "Letter of Appointment" dated 27 September 2012. It provided in part: "Conditions of Employment Your continued appointment is conditional upon your: 1. Compliance with all applicable public health organisation and hospital policies and protocols, and with applicable Policy Directives and Guidelines issued by the [sic] NSW Health, as amended from time to time, including the NSW Health Code of Conduct 2. Ensuring that all services provided are consistent with any instructions issued by your supervisor or manager or other person with authority to direct you [sic] work 3. Demonstrating at all times courteous and professional behaviour towards patients, their relatives and other staff."

Relevant legal principles

Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
To be entitled to any remedy under the Act, the onus is on Mr Sheridan to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84.
The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the ISLHD to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29].

The alleged effects of concussion

Mr Sheridan claimed to have no recollection of the fight with Mr Young. He deposed that he recalled Mr Young aggressively approaching him, and his subsequent discussions with Ms Clarke and Mr Ryall, but nothing in between. This was said to be the consequence of him having suffered concussion when he was struck by Mr Young.
Dr Vitols of the Emergency Department at the Shellharbour Hospital had diagnosed Mr Sheridan as suffering from concussion: see [29]-[30] above. Dr Venkat suggested that it was "possible" that Mr Sheridan had anterograde memory loss, and recorded an "impression" of "post concussive syndrome": see [46]-[47] above. Neither Dr Vitols nor Dr Venkat was called to give evidence in these proceedings.
As observed at [48] above, Dr Walker was commissioned to provide a report for the ISLHD. In a report dated 24 July 2020 he stated: "There seems little evidence that Mr Sheridan suffered a neurologically significant head injury as a result of the alleged assault. There was no direct head trauma, no loss of consciousness, no amnesia, and no confusion, as witnessed by his detailed account to his supervisor. He had normal examination and normal imaging. There is no likelihood that this assault would have affected his cognition. He had a past history of mental health issues. … I do not believe that the altercation. as witnessed by me and described in details by Mr Sheridan. would have resulted in concussion used in a scientific fashion. If one takes 'any symptom' following a bump to the head to mean concussion, then it may have been called that by some without any proper scientific basis. I certainly do not believe that it was reasonable to call his symptoms 'post-concussive' when he presented to Wollongong Hospital seven months later, with what would appear to have been a migrainous event or psychogenic presentation. … I do not believe that Mr Sheridan would have suffered any impaired memory or altered response in the altercation caused by concussion." (Sic)
(To avoid confusion, I observe parenthetically that when Dr Walker referred to having "witnessed" the altercation, he is to be understood to be referring to having watched the CCTV footage.)
In a second report dated 3 March 2021 Dr Walker stated: "I felt that there was no evidence of a significant head injury. Significant head injuries occur when people are rendered unconscious. They may have anterograde or retrograde amnesia. They are often confused at the scene of the accident and have a reduced Glasgow Coma Scale. They may have an abnormality on the CT of the brain and if not they may have some gradient echo abnormalities on a later MRI. They cannot give a detailed account of the events of the accident some hours later as he did to his supervisor. Mr Sheridan had none of these features."
Dr Walker was called to give evidence by the Secretary and was cross-examined. In his oral testimony he accepted that the notion of "post-concussion syndrome" is a controversial area in the field of neurology, but stated that it is not a condition that he recognises. He was challenged on whether he was correct in asserting that Mr Sheridan showed no signs of amnesia, in the following exchange: [13] "Q. Where you say there is no suggestion of any amnesia, that's not quite right, is it? A. It is quite right. There was no evidence of amnesia, in the true sense of the word, described by Mr Sheridan. He was clearly emotional, and mentioned some terminology that you read to me a moment ago, but he didn't say, 'I can't remember anything, where am I'. Q. Mr [Canby] reports him as saying 'I can't remember, it's all a blur'? A. 'It's all a blur', and then proceeds to describe it in detail where he was hit, and who hit him, who was there and who wasn't there; I don't think that's genuine amnesia, I think that's the first words of an agitated emotional person. Q. It is also possible that Mr Sheridan was reconstructing events, based on what he had been told by other people? A. After only a few hours, I doubt it; that's something that happens much later down the track. Q. When you have had a natural loss of memory you mean? A. Yes. Q. Yes, but if he had had an actual loss of memory because of concussion, he could be doing it then, couldn't he? A. I don't believe so."
Dr Walker accepted that as Mr Sheridan was punched several times in the face and was complaining of headache, he had suffered a head injury. He further accepted that "it [was] a head injury that in theory could have caused a concussion". [14] However, while Dr Walker accepted the theoretical possibility that Mr Sheridan had suffered a concussion, his evidence was overwhelmingly to the effect that Mr Sheridan did not in fact do so.
I digress to observe that in the Discharge Referral Note prepared by Dr Vitols there is reference to Mr Sheridan having been "hit on the cheek 3-4 times". As observed above, Dr Walker also based his opinion on Mr Sheridan having been punched several times. It is not apparent from the footage of the incident that Mr Sheridan was hit more than once. However, this was not a matter to which either party drew my attention and I will not speculate as to whether and to what extent any discrepancy in this regard might have impacted on the witnesses' opinions.
Further on the question of concussion, Ms Clarke deposed that during her conversation with Mr Sheridan on 27 September 2019 following the incident he appeared lucid and that she "did not observe [Mr Sheridan] displaying any symptoms that he was concussed". [15] Ms Tait stated that during her conversation with Mr Sheridan he was angry but was composed, speaking calmly and clearly. She could not recall "observing any behaviours or signs from [Mr Sheridan] that would suggest that he was experiencing a concussion". [16] Both Ms Clarke and Ms Tait are registered nurses.
On the evidence, I am not persuaded that Mr Sheridan did in fact suffer concussion from being hit by Mr Young on 27 September 2019. Further, I cannot determine from the evidence presented that "post-concussion syndrome" exists, much less that it is a condition from which Mr Sheridan was suffering at any relevant time.
It follows that there is cause to doubt Mr Sheridan's testimony that he has no independent recollection of the fight. His evidence was that to the extent that he had at any time described the altercation from and including the point of being punched, he was essentially recreating events from what he was told by Ms Clarke and Mr Ryall had happened. There are two things to note about this.
First, under cross-examination Ms Clarke denied having told Mr Sheridan "what had happened". Second, the descriptions of the altercation that Mr Sheridan was able to provide to Dr Vitols, Ms Clarke, Ms Tait and Mr Canby, and to record in his email of 27 September 2019 and indeed in his statement in these proceedings, appear to reflect more a recollection of events than a reconstruction based on or extrapolated from a narrative that had been relayed to him.
Ms Saunders of Counsel, who appeared for Mr Sheridan, submitted that it is "profoundly unhelpful" to him to have memory loss. [17] Mr Sheridan was largely unable to challenge the recollection of the Secretary's witnesses of their conversations with him on 27 and 28 September 2019. Their evidence must necessarily be preferred.
That is not the extent of the issue, however. In the absence of Mr Sheridan suffering concussion, there is reason to doubt his claims to be suffering from amnesia. This affects the veracity of the information that he provided to his employer in the process resulting in his dismissal, and in his evidence in these proceedings.
Further, in the document referred to at [42] above, Mr Sheridan's response to Allegation 5 included the contention that "my immediate response may have been affected by the concussion, and my responsibility for my reactions needs to be considered in that context". This was not a contention that Mr Sheridan pressed in these proceedings. However, in the interests of completeness I find that there is no basis on which Mr Sheridan can claim that his behaviour on 27 September 2019 was impaired or affected by concussion.

The "fight or flight" contention

Another contention raised by Mr Sheridan is that his conduct on 27 September 2019 has to be considered in light of his underlying psychological condition and the history of unresolved conflict in the workplace, and the extent to which these may have contributed to his particular response to being assaulted. That is, that he was more susceptible to having a "fight or flight" response to the assault, and his retaliation was in the nature of an instinctive fight reaction rather than a conscious or deliberate decision to engage in a fight.
Dr Glen Smith is a Consultant Clinical & Forensic Psychiatrist who was called to give evidence on behalf of Mr Sheridan. In a report dated 16 September 2020 Dr Smith stated: "Mr Sheridan is a 59 year old man living alone in his own accommodation. He reported a history of posttraumatic [sic] stress disorder (PTSD) after a motor [vehicle] accident in the 1980s and the symptoms had remitted completely with psychological therapy. He described longstanding depressive symptoms over the past five years with intermittent periods of more significant deterioration in mood from around 2015 reportedly in the context of bullying and harassment in the workplace. He described an incident in September 2019 in which he was assaulted and he has little memory of the incident. After the incident he experienced nightmares and recurrent, intrusive distressing memories of the assault and he described hypervigilance in public with worry that he would be assaulted again. He had received psychological therapy and his antidepressant medication had been increased in dose. He had not been referred to a psychiatrist. Mr Sheridan also reported an escalation in binge pattern alcohol consumption after the assault in the context of his emotional distress. In my opinion, Mr Sheridan presented with symptoms consistent with the diagnoses of persistent depressive disorder, with intermittent major depressive episodes, without current major depressive episode, PTSD and alcohol use disorder."
In a second report dated 14 January 2021 Dr Smith answered a series of questions that had been put to him by Mr Sheridan's legal advisers, as follows: "1. Could Mr Sheridan's existing psychological conditions have caused or contributed to his response to Mr Young's assault on him? In my opinion, Mr Sheridan's pre-existing depressive condition likely predisposed him to experience an aggravation of anxiety and depressive symptoms in the context of Mr Young's assault on him and an aggravation of previous PTSD that had resolved after the motor vehicle accident in the 1980s with treatment. 2. Could Mr Sheridan's concerns about his safety when working with Mr Young have caused his response to Mr Young's assault on him? In my opinion, Mr Sheridan's concerns about his safety when working with Mr Young contributed to his response to Mr Young's assault on him. 3. Would his mental conditions or concerns about Mr Young have affected his 'fight or flight' response to being assaulted by Mr Young, and if so, how? In my opinion, Mr Sheridan's mental conditions and concerns about Mr Young would have increased the risk of him having a 'fight or flight' anxiety response to being assaulted by Mr Young. His concerns about Mr Young and anxiety about the risk to his safety will have increased the risk that he suffered from the type of anxiety symptoms described as fight or flight in response to being assaulted. The pre-existing depressive symptoms also increased the risk of a significant anxiety response in that context." (Emphasis in original)
Under cross-examination Dr Smith accepted that his answer to the third question above was answered in the abstract. That is, that it was difficult for him to say whether or not Mr Sheridan did in fact have a reactive fight response on 27 September 2019, but simply that there would be an increased risk of such a response.
The contention that Mr Sheridan acted reactively rather than deliberately in going after Mr Young does not sit comfortably with him saying: 1. to Ms Clarke: "What was I supposed to do? Just stand there and let him hit me?" (see [25] above); and 2. to Ms Tait: "I was not going to stand by and put up with it and get it, so I hit him back" (see [27] above).
The Secretary also sought to rely on an undated document that was purportedly signed by two gentlemen, Barry Peisley and Oliver Kocovski. For present purposes it is suffices to observe that the document stated: "To whom it may concern At the HSU Delegates Conference in July 2019, in conversation relating to Scott Young, Brett Sheridan made statements to the effect of 'I Hate [sic] that bloke' and 'I want to punch that guy in the head'. This was heard by both of us numerous times throughout the conference."
The Secretary relied on this document as evidencing Mr Sheridan's state of mind in July 2019, so as to suggest that Mr Sheridan was "primed" to engage in a fight with Mr Young, as he did on 27 September 2019. That is, rather than being a wholly reactive anxiety response to having been assaulted by Mr Young, Mr Sheridan was an active and willing participant in the fight.
The document was admitted into evidence over Mr Sheridan's objections. I admitted it on the basis that I would give consideration to the weight to be attached to it. Neither Mr Peisley nor Mr Kocovski was called to give evidence. This is particularly significant when Kestrel Brown, the Senior Manager Workforce Relations for the ISLHD, deposed that she had spoken to Mr Kocovski who, in the course of expressing reluctance to give evidence in these proceedings, said words to the following effect: [18] "I never signed a document, and I wouldn't have signed anything like that." And: "Yes, Brett did make those comments. Brett said it in a joking manner. He had had a bit to drink. I didn't take it seriously. I didn't think it was a threat, just small talk. I don't believe there was any malice in that threat."
In light of this evidence the document is of little assistance. It cannot stand as indicating Mr Sheridan's state of mind in July 2019, much less in September 2019.
Dr Smith was challenged in cross-examination as to the factual underpinnings of his opinions. He stated that he had not seen the CCTV footage, Dr Walker's report of 24 July 2020 or the records of Mr Sheridan's conversations with Ms Clarke and Ms Tait. He had the following exchange with Mr Mattson, who appeared for the Secretary: [19] "Q. I will return to that factor in one minute, but if you take that factor out, would you agree with me that having regard to these four matters, the neurologist's report showing no traumatic injury on the night, the account given by Mr Sheridan to Ms Clarke, Ms Tait and Mr [Canby] after the incident, the fact that he does have that training as a security officer, the fact of what he said to others at a conference in July 2019, that an equally plausible explanation for what occurred, other than the increased risk of a fight or flight response, is that he just chose to hit Mr Young; you would agree with that? A. It's a possibility."
There was the following further exchange: [20] "Q. Then you talk about depressive symptoms over the past five years from bullying and harassment, and that's what you referred to earlier; that's correct? A. Yes. Q. You would agree that your supplementary report doesn't outline what that bullying and harassment is? A. Yes. Q. In your first report, on page 3 of your report or page 15 of your affidavit, you see under the background there, the last sentence, there is a reference to the bully being Mr Young; do you see that? A. There's a reference to him being bullied by Mr Young since around 2015. Q. That involved 'putting in false reports about me'; is that correct? A. Yes. Q. That was the extent of what you were told was the bullying; is that correct? A. He also made the comment that he was getting hassled at work, he talked about a period of conflict with Mr Young. Q. Other than those two aspects, is that the extent of what you were told about the bullying and harassment? A. Yes. Q. Did Mr Sheridan tell you that he interacted with Mr Young only occasionally? A. No, he didn't. Q. Did he tell you that he didn't work with Mr Young between 2017 to about mid‑2019? A. No, he didn't. Q. Did he tell you that in the months leading up to 27 September 2019 they only worked the occasional shift together? A. No, he didn't. Q. Do you agree that that information would have been important for you to assess the impact of the bullying and harassment on Mr Sheridan? A. Yes."
As Mr Mattson's questions to Dr Smith suggest, the evidence as to the extent to which Mr Sheridan was the subject of bullying and harassment at work was limited. Little detail was provided of the conduct of Mr Young which was said to amount to bullying and harassment of Mr Sheridan. At the same time, the Secretary did not suggest that there was no substance to Mr Sheridan's claims. Mr Sheridan was not challenged on his evidence that he felt fearful around Mr Young, did not want to work with him and had conveyed these concerns to both Mr Canby and Mr Goddard.
There is no evidence that the ISLHD took adequate, if any steps to resolve the conflict between Mr Sheridan and Mr Young. Mr Canby, who was aware of the conflict, appears to have done nothing other than to suggest that Mr Sheridan escalate his grievance to management. Despite being Mr Sheridan's supervisor, he did not consider that he had any responsibility to attempt to address the matter himself. While Mr Sheridan did seek to escalate his grievance to Mr Goddard, there is no evidence of Mr Goddard taking any steps at all.
I note also that Mr Sheridan had sent an email to Mr Canby in respect of his concerns about Mr Young only a few hours before the altercation on 27 September 2019. It can reasonably be inferred that his concerns about Mr Young were on his mind during that shift.
However, while the ISLHD appears to have taken no meaningful steps to resolve Mr Sheridan's grievance, and in fact rostered him with Mr Young on 27 September 2019, this does not exonerate Mr Sheridan from his conduct that evening. I am not persuaded that Mr Sheridan's response to being hit by Mr Young was a reactionary fight response brought about by his emotional and psychological condition. While I would not go so far as to suggest that Mr Sheridan was waiting for an opportunity to "have a go" at Mr Young, the impression arising from all of the evidence, including the CCTV footage, is that he was certainly willing to take the opportunity when it was presented.
Further, Mr Sheridan did more than lash out in an instinctive response to Mr Young's assault. He went after him, punched him several times, pursued him when Mr Young sought to move away and would apparently have continued the fight were it not for his colleagues restraining him.
I emphasise that Mr Young's assault on Mr Sheridan was unprovoked and wholly unacceptable. I have no hesitation in accepting that the situation would have been confronting and indeed painful for Mr Sheridan. It would certainly have instilled an emotional response, such as fear, anger or both. I do not seek to diminish the significance of Mr Young's assault or his culpability in instigating the fight. I am simply not satisfied that Mr Sheridan's reaction to the assault was anything other than a conscious decision.
Viewed in the context of all of the evidence, the incident appears to have been the culmination of ongoing resentment between Mr Sheridan and Mr Young. This is demonstrated by Mr Young's initial aggressive and violent confrontation of Mr Sheridan, and Mr Sheridan's arguably more aggressive and violent retaliation. Rather than Mr Sheridan's response being a manifestation of his underlying emotional and psychological condition, which might reduce his accountability, I consider that Mr Young's assault was for Mr Sheridan a step too far and he determined, to paraphrase his words, "not to stand there and take it".

The Allegations

I turn now to consider the Allegations. As stated above, Mr Sheridan's employment was terminated on the basis that Allegations 3 to 7 had been substantiated. Allegation 3 concerned Mr Sheridan's delay in assisting Mr Young to restrain the patient. Allegations 4 to 7 all related to the fight between Mr Sheridan and Mr Young.
Allegation 3 needs to be considered in context. Mr Sheridan contended that there had been no need for Mr Young to restrain the patient, as she had made no move to get away. In seeking to restrain the patient Mr Young was not only demonstrating the behaviours about which Mr Sheridan had complained, but was acting contrary to the ISLHD's protocols.
Ms Clarke's evidence was inconsistent with that of Mr Sheridan on this point. When she was interviewed during the Investigation, Ms Clarke stated that during the transfer the patient began to walk away from the group, which may have warranted the use of some restraint. In her statement in these proceedings she deposed that "the patient was upset and did try to run away". [21]
However, both Mr Sheridan and Ms Clarke were of the view that Mr Young had used excessive force on the patient. Statements to this effect were made during the Investigation and in these proceedings. Mr Sheridan asserted that his immediate concern was for the patient's welfare.
On its terms and on the facts, Allegation 3 was rightly found to be substantiated. The question is what the ISLHD could properly have made of that finding. I note the following passage from the Termination Letter: "You did not assist Mr Young with the physical restraint of the patient until Mr Young asked for assistance. In doing this your actions became a contributing factor in not only the way that Mr Young subsequently handled the situation with the consumer but also into the verbal and physical altercation. It would also be expected that as part of the security team transferring the consumer you would render assistance without the need to be asked." (Emphasis added)
The evidence available to the ISLHD, arising from the Investigation, supported a finding that Mr Young had used excessive force on the patient, and that this may have contributed to any delay in Mr Sheridan rendering assistance (assuming any restraint was warranted). Under cross-examination in these proceedings, Ms Lowry conceded that based on the findings of the Investigation, Allegation 3 would not justify performance management, let alone constitute misconduct. She had the following exchange with Ms Saunders: [22] "Q. We see at the bottom of the page, 'Allegation 3', that at approximately 22:30 on 27 September 2019 while escorting the patient from the emergency department to Mirrabrook you did not assist Mr Young with the physical restraint of the patient until Mr Young yelled out to you for assistance', that was the allegation we were talking about? A. Yep. Q. And if we go to page 325. That allegation is sustained but are you saying it's sustained just as a matter of fact or sustained as misconduct? A. Sustained as a matter of fact. Q. It's never considered whether it actually constituted misconduct or not, is it? A. Not in its own right, no. … Q. But there was a delay in him responding? A. Yes. Q. And the investigators found that the reason for that delay was slight shock on Mr Sheridan's part, do you recall reading that? A. Yes. Q. That delay I should say being Mr Sheridan not responding until Mr Young said something that time. A. Yes. Q. Basically he was startled because his colleague had without notice moved to apply an excessive restraint on a patient. A. Yes. Q. He then went to help. A. Yes. Q. You have read the whole report and you understand that what he did was comment on the excessive force to Mr Young? A. Yes. Q. And the restraint stopped? A. It did stop eventually, yes. Q. That's linked you would accept to the allegation that he didn't respond until Mr Young asked him to, it's the reason why, isn't it? A. Yes. Q. And it's a perfectly sensible reason? A. Yes. Q. It can't possibly constitute misconduct? A. I accept your reasoning by that, yes. Q. And it couldn't possibly justify a performance management of Mr Sheridan? A. That's a reasonable conclusion, yes."
In light of that evidence, it is difficult to see how a finding that Allegation 3 was substantiated as a matter of fact could in any way support a decision to terminate Mr Sheridan's employment. It is simply unreasonable to suggest, as the Termination Letter appears to do, that he was somehow to be blamed for Mr Young deciding to punch him in the head.
In respect of Allegations 4, 5 and 6, the ISLHD levelled three allegations against Mr Sheridan where one would suffice. (I observe that there is a similar degree of commonality between Allegations 1, 2 and 3.) Mr Mattson confirmed that Allegation 6 did not raise any matter that was not comprehended by Allegations 4 and 5. No explanation was offered as to why it was considered necessary to separately allege that Mr Sheridan had engaged in a "verbal altercation" (Allegation 4), a "physical altercation" (Allegation 5) and otherwise "acted in a way…that was verbally and physically aggressive" (Allegation 6). The seriousness of an employee's misconduct, if established, and whether that misconduct justifies termination of their employment, is not measured by the number of allegations against them, but by the gravity of their conduct.
In any event, the evidence falls short of establishing that Mr Sheridan engaged in a "verbal altercation" with Mr Young or that he was "verbally aggressive". Mr Sheridan could recall saying to Mr Young only "What, what are you on about?", or words to that effect. Ms Clarke could recall him only saying "What?". The high point of the Secretary's case is Mr Sheridan saying to Ms Tait that he and Mr Young "traded insults" and to Mr Canby that "a few words were exchanged". That evidence does not get to the level of substantiating Allegation 4 and Allegation 6 (to the extent it alleged verbal aggression). They should not have been found by the ISLHD to have been substantiated.
Further, and similar to Allegation 3, a concern arises as to the use to which the ISLHD sought to put the findings in respect of Mr Sheridan's alleged "verbal" misconduct. In her statement in these proceedings Ms Lowry stated: [23] "47. The Applicant, I believe, responded to Mr Young's verbal complaint to him in a manner that was provocative ('What? What are you on about?'…) Rather than make a comment said in a way to de-escalate the situation." (Emphasis in original)
Under cross-examination, Ms Lowry largely abandoned this position in the following exchange with Ms Saunders: [24] "Q. You can't hear on the TV but you know from the witnesses that he said something along the lines of, 'Thanks for the punch in the head, you dog'? A. Yes. Q. You know from the witnesses that Mr Sheridan has said something like, 'What are you talking about?'? A. Yes. Q. That's a pretty normal response to what Mr Young has said? A. Yes. Q. Particularly if Mr Sheridan indeed does not know what he was talking about? A. I can't be certain what Mr Sheridan was thinking at the time, but it seems a reasonable question to respond if he wasn't sure what he was talking about, yes. Q. There's no allegation that Mr Sheridan yelled back just at that point? A. No. Q. And there's no suggestion that he, for example, swore at Mr Young or called him a name? A. No. Q. Just responding, 'What are you talking about', can't sensibly be described as provocative, can it? A. Not on its own, no."
With respect, it was appropriate for Ms Lowry to concede on this point. There is no contest that Mr Young made a statement to the effect that Mr Sheridan had hit or punched him in the head. As Mr Sheridan says he did not do so, and there is no evidence to the contrary, it is entirely to be expected that Mr Sheridan would ask Mr Young "what he was on about". It is unfathomable to suggest that this response was in any way provocative. To go further and apparently seek to infer that in using those words Mr Sheridan was somehow responsible for the initiation of the fight is ridiculous.
There is no dispute that Mr Sheridan engaged in a "physical altercation" with Mr Young during which he was "physically aggressive". Allegations 5 and 6 (to the extent it refers to physical aggression) were properly substantiated by the ISLHD.
Allegation 7 alleged that Mr Sheridan's conduct had the potential to bring the reputation of NSW Health into disrepute. In his submissions, Mr Sheridan questioned how his behaviour could cause harm to the reputation of NSW Health. I would not have thought that much explanation was required. Mr Sheridan was a Security Officer at a hospital. On the premises and in a public place, albeit reasonably late at night, Mr Sheridan got into a fight with a co-worker. That this had the potential to damage the reputation of the hospital, and by extension NSW Health (noting that the Allegation does not allege actual damage), seems obvious.
That said, Allegation 7 was not the subject of significant attention during the proceedings. I have had regard to this in determining what weight should be attached to this particular Allegation.

Procedural issues

At first glance, the process culminating in Mr Sheridan's dismissal gives no cause for concern. He was made aware of the Allegations; he had an opportunity to respond to them and to provide his version of events, both in person and in writing; additional time was afforded to Mr Sheridan and his union representative when concerns were raised as to that representative's preparedness for a scheduled meeting; and a report from Dr Walker was commissioned to allow the ISLHD to properly consider Mr Sheridan's claims that his behaviour and recollection may have been impacted by the effects of concussion.
Mr Sheridan, however, raised concerns with a document that had been created in advance of the meeting of 13 May 2020. Ms Lowry described it as a script for an opening statement that had been prepared for Ms Mains. It contained the following: "• You should have been aware of the situation with the patient so you could assist your colleague. Being distant from and ahead of your colleague and the consumer meant you were situationally unaware of the changing situation and therefore not in a position to immediately assist. • Your actions contributed to the situation evolving the way it did."
These statements appear to be derived from Allegations 1 and 2, both of which had previously been found to be unsubstantiated. It seems that at that time Ms Mains was mistaken, or had been misled, as to the extent of Mr Sheridan's alleged misconduct. As Ms Mains was not called to give evidence in these proceedings, it was not possible to assess the extent to which her understanding as at May 2020 of Mr Sheridan's behaviour had a bearing on her decision to dismiss him in August 2020.
That said, in the Termination Letter Ms Mains expressly included all of the findings that she had accepted and noted that Allegations 1 and 2 were not substantiated. To the extent that she might have been said to have been acting on a misapprehension as to the state of play as of 13 May 2020, the Termination Letter suggests that she was not so mistaken at the time of termination.

Determination

In Kumar and Valuca Pty Ltd [2001] NSWIRComm 63 Sams DP observed: "27 A number of authorities are pertinent to the principles the Commission is to rely on when considering an employee's dismissal arising from a fight, or physical altercation, in the workplace. The Commission, as presently constituted, had occasion to refer to these authorities in Samaha and The Maronite Sisters of the Holy Family (unreported) Sams DP, Matter IRC6598 of 1999, 8 September 2000. It is appropriate to cite the cases again and identify the relevant principles which can be distilled from them. 28 In Yew v ACI Glass Packaging, 72 IR 200, Wilcox J said: These considerations justify an employer taking a serious view about fighting in the workplace. Especially where the fight takes place in the vicinity of heavy equipment or industrial products, as in this case, there is a serious risk of injury to one or both combatants. But, as Moore J recognised, it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a "no fighting" policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence. 29 In AWU-FIME Amalgamated Union v Queensland Alumina Limited, Moore J said: What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence. 30 Redman, C in Health and Research Association (NSW) v Wollongong Hospital, 29 IR 235, said at p242: Prima facie the hospital dismissed Mr Ready and Mr Hope because it was unable to determine the identity of the aggressor. In reality the dismissals of Mr Ready and Mr Hope conveniently resolved the hospital's dilemma regarding what it should and could do to neutralise the well-known feud between the two men. Any person is entitled to defend him or herself against violent attack and the evidence brought forward indicates that this is what Mr Ready did. It is untenable to suggest that Orana House is by virtue of its function such a unique place as to justify the dismissal of an employee who acts reasonably in his or her own self-defence against violent attack and I reject such a proposition. 31 After reviewing a number of authorities, an appeal bench of the Australian Industrial Relations Commission in Fearnley v Tenix Defence Systems (unreported) AIRC Print S3557 said: We think these authorities support the view that in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to: - whether the terminated employee was provoked and whether he or she was acting in self defence; - the employer's need to establish and retain discipline amongst its employees; and - the service and work record of the employee concerned. 32 From these citations, it seems to me that some general observations may be made: 1) Fighting in the workplace would, in the absence of extenuating circumstances, be grounds for dismissal. 2) The outcome in a particular case will depend very much on the relevant circumstances. 3) In investigating the circumstances, an employer should look behind the incident and examine its causes. 4) Merely participating in a fight will usually be insufficient to justify summary dismissal. 5) An employer should seek to establish whether an employee was provoked, or was acting in self defence. 6) A 'no fighting' policy should be applied fairly and consistently and be designed to ensure a safe working environment for all employees. 7) An employer should take into account an employee's period of service, work record and whether the employee was in a supervisory position." (Emphasis in original)
In Graham v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023 Connor C observed: "23 It is clearly settled law that fighting at the place of work is misconduct and, as such, grounds not only for dismissal of the offender but for his summary dismissal. For instance, in the unreported decision of McClelland J on Friday, 25 January, 1980 in Printing and Kindred Industries Union v. John Fairfax and Sons Limited [Matter No.52 of 1980] his Honour expressed the view (at p.9) that fighting at work, along with the consumption of intoxicating liquor at work and the stealing of an employer's property, constituted the classic justification for summary dismissal. In G J Coles and Company Limited v. Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 the Full Bench of the Commission (Fisher P, Macken and Sweeney JJ) considered the circumstances surrounding the dismissal of a female shop assistant who had slapped the male grocery store manager, commenting (at p.44) as follows: '…In our opinion, an employee who strikes another employee in the workplace will normally be guilty of serious misconduct justifying summary dismissal… Likewise, a male employee inflicting such a hard slap to another employee would have been guilty of such misconduct…' And I indicated in my unreported decision of Friday, 25 May, 2001 in Hutchinson v. BHP Steelworks [Matter No.IRC 5910 of 2000 at p.16]: '...the customary response to any fight by employees in the workplace is for both employees to be dismissed from employment...' 24 There are exceptions, however. In AWU-FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 Moore J of the former Federal Industrial Relations Court commented (at p.393) that, based on his evaluation of relevant precedents: '…whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence…' 25 I consider there to be three possible defences in a claim of unfair dismissal based on an established incident of fighting at work, viz: (i) where the employee was doing no more than defend himself and was not himself the aggressor (in which case I believe that he would have a total defence from the allegation levelled against him); (ii) where the employee was provoked into a fight by the other party (in which case that provocation may constitute a mitigating factor to take into account when assessing whether his dismissal was fair or unfair); or (iii) where the employer is not even handed in his approach, ie disciplining one employee for fighting but not similarly disciplining the other employee, provided, of course, that the other employee is equally culpable (in which case it would possibly be a factor in assessing the fairness or unfairness of the dismissal of the employee who was actually disciplined)."
Mr Sheridan was employed as a Security Officer. I am satisfied that he was aware or ought to have been aware that fighting with Mr Young was in breach of the terms of his employment, including being contrary to those provisions of the Code of Conduct referred to at [6] above.
Mr Sheridan accepted that he had been trained in de-escalating and withdrawing from confrontations. Through his experience and training, he knew or should have known not to go after Mr Young in the way that he did. I make this determination notwithstanding the following countervailing factors: 1. Ms Lowry's acceptance that the training provided to Mr Sheridan and the documents on which the Secretary relied to prove a breach of his obligations were predominantly directed towards the risks of patients or members of the public becoming violent to members of staff. They do not anticipate or teach employees to be alert to the risk of violence from their colleagues; 2. Mr Canby's evidence that he would not expect an employee to be on guard for an attack by another employee and that it would be highly unusual for that to occur; and 3. Dr Smith's evidence that Mr Sheridan's training may have had less of an impact when confronted with a situation arising outside of his role as a Security Officer. That is, where there was already a sense of conflict in his relationship with Mr Young, Mr Sheridan's emotional response to the conflict may have overridden his training.
For the reasons set out earlier, I do not accept that Mr Sheridan's conduct was impacted or brought about by the effects of concussion or any predisposition towards a "fight or flight" response due to his psychological condition.
I am mindful that Ms Mains took into account all of the substantiated Allegations in deciding to terminate Mr Sheridan's employment. For the reasons set out at [89]-[99] above, Allegations 3, 4 and 6 (to the extent it alleged verbal aggression) do not themselves support a finding that Mr Sheridan's employment ought to have been terminated.
Even so, I am satisfied that in deciding to respond to Mr Young's unacceptable violence with his own, arguably more serious, violence and aggression, Mr Sheridan engaged in misconduct. While he was the initial victim of an assault and it may have been understandable for him to lash out in response, he went beyond instinctively lashing out and became the aggressor.
I recognise that Mr Sheridan had been employed with the ISLHD for nearly eight years without incident. However, to adopt the language of the Full Bench in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 this is a "mixed factor": Mr Sheridan's length of service suggests that he should have been aware of what was expected of him.
On all of the evidence, I do not consider that there are "extenuating circumstances" of the kind referred to by Sams DP in Kumar and Valuca Pty Ltd that would support a finding that Mr Sheridan's conduct did not provide grounds for dismissal. I find to the contrary. The dismissal was not unjust.
Having regard to the matters addressed at [103]-[106] above, there is no basis to impugn the process culminating in the termination of Mr Sheridan's employment. The dismissal was not unreasonable.
Mr Sheridan contended that even were the Commission to be satisfied that he had engaged in misconduct, his dismissal was harsh. The approach to the assessment of whether or not a dismissal is harsh is set out in the following passages in Department of Health v Perihan Kaplan [2010] NSWIRComm 65: "29. We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of 'harshness' it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 'In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.'"
In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted)
Mr Sheridan submitted that harshness could be discerned from the disproportionate treatment he received. He relied on the same grounds on which he contended that his conduct did not amount to misconduct, namely the history of conflict with Mr Young, the failure by the ISLHD to properly manage that conflict, the fact that he had been attacked and the absence of any provocation. It suffices to say that based on my findings as to Mr Sheridan's misconduct, I do not consider that these factors demonstrate that dismissal was a disproportionate response to that misconduct.
Mr Sheridan further submitted that disproportionality was evidenced by the action taken against Mr Young following an earlier incident in which he had been involved. It is not necessary to explore that incident in detail. Suffice it to say, in 2013 Mr Young was found to have hit a mental health patient in the head with a closed fist after he had been bitten. Rather than being dismissed, Mr Young received a warning and was demoted. One of the considerations taken into account at the time was the fact that Mr Young had earlier that year been assaulted by a patient and suffered injuries requiring time off work. The medical evidence was that his psychological condition as a consequence of that assault had influenced his conduct in assaulting the patient.
I recognise that there are some similarities between that event and Mr Sheridan's case, although I do not consider that the situations are identical as he submitted. In any event, I consider that it is necessary to approach with some caution the contention that a decision to dismiss is unfair because others who may have committed similar misconduct have received lesser sanctions.
In Martin Evans v NSW Police [2005] NSWIRComm 404 Boland J observed: "46 Mr Docking also relied on the contention that there was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust: Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 at [188]. 47 Mr Docking pointed to the evidence of a number of police officers that had committed assault. Some had been removed under s 181D and others had been given a 'Commissioner's Warning Notice'. … 48 All that can reasonably be concluded from these examples is that not all police officers that have committed assault have been removed from the Police. That is, there has not been any hard and fast rule that if an officer commits assault he or she will automatically be removed. Rather, it would appear the relevant Police Commissioner at the time has been prepared to consider the individual circumstances of the case and to exercise his discretion not to remove an officer if satisfied there were, for want of a better term, extenuating circumstances. This is as it should be." (Italics in original)
In Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88 Staunton J observed: "104 Having regard to the similar type submission that has now been placed before me in these proceedings, I concur with the view expressed by Boland J in Evans above as to the conclusion to be drawn from such a comparative analysis. I also reaffirm the view expressed by me in Dangerfield that such comparative outcomes analysis are not, in the final analysis, of any assistance to the role of the Commission in undertaking the review process that it does pursuant to s 181F of the Act. It is very much a matter of considering each case in the light of its own particular facts and circumstances having regard to the decision taken by the Commissioner to remove the officer from the NSW Police. That is as it should be. Any approach that suggests 'one size fits all' in terms of outcome could result in the real unfairness that counsel for the applicant asserts now applies here. It is clear that the Commissioner has a discretion. In exercising that discretion, he must do so fairly, reasonably and not harshly, as those principles are understood. Any consideration as to how that test should be applied requires that each employee should be assessed having regard to the particular facts and circumstances applying to him or her." (Italics in original)
While Evans and Formston involved proceedings brought under s 181F of the Police Act 1990 (NSW), the observations of Boland J and Staunton J are apposite to matters brought pursuant to s 84 of the Act. I observe that in Marroun v State Transit Authority [2016] NSWIRComm 1003, in a passage in which he cites Evans, Newall C observed at [63] that "a gross incongruity between the approaches to two different employees invites a suggestion that the punishment is inappropriate". (While Marroun proceeded on appeal, ultimately to the Court of Appeal, this passage does not appear to have come under criticism.)
On the evidence available to me, I am not persuaded that there is such a "gross incongruity" in the treatment of Mr Sheridan as opposed to Mr Young as to warrant a conclusion that the former's dismissal was consequentially disproportionate or unfair.
Mr Sheridan otherwise drew attention to the following factors against which his misconduct needs to be considered: 1. He is 59 years of age. 2. He has no trade qualifications. His employment prospects are limited, particularly in the midst of a pandemic. As at the date of the arbitration he had been unable to find other work and was reliant on government assistance. 3. He suffered an injury as a result of Mr Young's assault. Mr Sheridan has been diagnosed with post-traumatic stress disorder. He stated that this has resulted in him feeling constantly anxious and paranoid, and depressed about his future prospects. He stated that he suffers daily headaches, with a dull ache behind his right eye, and that he is extremely sensitive to light in the right eye. 4. He otherwise suffers from the mental health issues identified by Dr Smith. 5. He had nearly eight years of apparently unblemished service (although in this regard I note [114] above).
These factors must be "weighed in the balance" against Mr Sheridan's conduct, which is objectively very serious in nature. I recognise that the consequences of the dismissal for Mr Sheridan are significant. But in light of all of the evidence I am not persuaded that the dismissal was "disproportionate to the gravity of the misconduct in respect of which the employer acted": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 (McHugh and Gummow JJ). Mr Sheridan has not established that his dismissal was harsh.

Order

I have found that Mr Sheridan's dismissal was not harsh, unreasonable or unjust. The only appropriate order is that the Application be dismissed. I so order. Damian Sloan Commissioner

Endnotes

Statement, Brett Sheridan, 13 November 2020 at par 25
Statement, Brett Sheridan, 13 November 2020 at par 50
Tcpt, 15 March 2021, p 20(45)
Statement, Brett Sheridan, 13 November 2020
Statement, Joanne Clark, 10 December 2020 at par 17
Statement, Brett Sheridan, 29 January 2021 at par 9
Statement, Susan Tait, 10 December 2020
ibid. at par 19
Statement, Brett Sheridan, 13 November 2020, at par 56
ibid.
Statement, Bill Canby, 10 December 2020
Statement, Christine Lowry, 10 December 2020 at par 59
Tcpt, 15 March 2021, p 54(11-33)
Tcpt, 15 March 2021, p 56(38-39)
Statement, Joanne Clarke, 10 December 2020 at par 19
Statement, Susan Tait, 10 December 2020 at par 24
Tcpt, 16 March 2021 p 115(44)
Statement, Kestrel Brown, 10 December 2020 at pars 9.4 and 9.8
Tcpt, 15 March 2021, p 11(31-39)
ibid., pp 12(21)-13(11)
Statement, Joanne Clarke, 10 December 2020 at par 13
Tcpt, 16 March 2021, pp 106(20)-107(45)
Statement, Christine Lowry, 10 December 2020
Tcpt, 16 March 2021 pp 102(35)-103(10) 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. Decision last updated: 25 May 2021

Police Act 1990(NSW)s 181F

At a glance

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Decision date

Source

Judgment (10 paragraphs)

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Legislation Cited (2)

Cases Cited (19)

Cited By (1)