[2012] FWA 10270 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sahran Guneyi
v
Melbourne Health T/A Royal Melbourne Hospital
(U2012/874)
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 18 DECEMBER 2012 |
Alleged serious misconduct - security guard was punched, then slapped or pushed patient
[1] On 17 April 2012 Mr Sahran Guneyi filed an application under s.394 of the Fair Work Act 2009 (the Act) against Melbourne Health trading as Royal Melbourne Hospital for an unfair dismissal remedy for his summary dismissal without notice on 3 April 2012.
[2] The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing, given the decision of the parties to cross examine witnesses and other matters. Written submissions and witness statements were filed. The following witnesses gave evidence:
Mr Sahran Guneyi
Mr Joe Lucisano
Mr Paul Scerri
Mr Jason Holden
Mr Rohan Duncan
Mr Troy Cox
Mr Graham Dolby
[3] I have had regard to all the submissions and evidence.
Statutory Provisions
[4] Section 387 of the Act provides:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
(a) Valid Reason
[5] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 1 , in relation to s.170DE of the Industrial Relations Act 1988. He said:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
[6] In Briginshaw v Briginshaw 2 Dixon J said:
“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.”
[7] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd 3 Chief Justice Mason and Justices Brennan, Deane and Gaudron said:
“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 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. As Dixon J commented in Briginshaw v Briginshaw, “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...”
[8] In Budd v. Dampier Salt Limited 4, a Full Bench discussed these decisions:
‘[14] The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.”
[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities. Counsel for the appellant contended that the Commissioner failed to have regard to the seriousness of the situation for the appellant in making findings of fact as to what had occurred and in deciding that there were no extenuating circumstances for the appellant’s behaviour.
[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. Loss of employment is a serious matter and applications for a remedy are to be dealt with seriously. That the Commissioner so regarded it in this case is clear from his decision. There is no basis on which to conclude that the Commissioner’s approach to the fact-finding process or to the exercise of the discretion was erroneous because of anything said by the Court in Briginshaw. The second ground of appeal must be rejected.’ [footnotes omitted]
[9] Turning to deal with the present matter, it is a matter of agreement that Mr.Guneyi was summarily dismissed without notice for slapping a patient on 31 January 2012. He was initially stood down on full pay while the incident was investigated, and was then summarily dismissed. The patient was drunk and had punched Mr.Guneyi. However, there is disagreement about the circumstances and nature of the contact that Mr.Guneyi had with the patient. The applicant contends that he in some way pushed the patient in an involuntary or spontaneous gesture arising from him being hit, this being essentially self defence. Melbourne Health submits that the contact was more in the nature of a slap, that it was not self defense because the punch had already taken place, and was deliberate and intentional retaliation for the punch and therefore grounds for summary dismissal.
One question which arises from this issue of evidence, is that of how the contact with the patient is to be assessed. The applicant contends that he took appropriate action, and would take the same action again in future. Melbourne Health contends that this is not an appropriate response to the circumstances, and that such action should not be taken again in future, and was again another ground for its lack of trust and confidence in Mr.Guneyi.
[10] Four witnesses to the incident appeared to give evidence: Mr.Rohan Dawson, nurse, Mr.Guneyi, Mr.Joe Lucisano, Security Officer, and Mr.Holden, Security Officer. All agree that Mr. Guneyi made contact with the patient, but differ to some degree on details.
[11] A number of issues arise out of the evidence relating to the incident:
[12] It is unlikely that evidence of four witnesses will be fully consistent in relation to details of this kind concerning an incident that occurred on 31 January 2012. Witnesses also provided the tribunal with three versions of events, firstly by way of oral statements provided to the Human Resources Business Manager, Troy Cox, who then summarised them, secondly by way of formal witness statements before me, and thirdly oral evidence, in particular responses to questions in cross examination. It is unnecessary to traverse all the different versions in detail. Again there were variations, as is to be expected.
[13] I have had the benefit of observing the evidence of these four witnesses, and in general prefer the evidence given by Mr.Dawson and Mr.Holden where it is in conflict with that of Mr.Guneyi and Mr.Lucisano. The version of events given by Mr.Guneyi and Mr.Lucisano, understandably, involved an element of advocacy which was less present in other evidence, and even on occasion took the appearance of a formula rather than a simple description of events 5. This goes to the relative weight to be given to contrasting versions of events.
[14] I have had regard to a number of documents relating to the appropriate manner in which clinical aggression is to be dealt with, including a slide show 6, and the Melbourne Health Management of Clinical Aggression (MOCA) document7. The slide show relevantly refers to the nature of ‘Code Grey’ responses, and self defence. The principles of emergency team response include protecting the client and staff and patient, and the ‘least restrictive option appropriate for the circumstances’. The self defence principles relate to issues such as using only the amount of force required to protect and defend yourself, protecting yourself without causing unnecessary harm to the attacker, and not taking unnecessary risks. I accept that Mr.Guneyi was appropriately trained as a security officer using these or similar documents and training sessions8.
[15] A formal report of the incident was made. It is not to the point in my view that others could also have put in reports. I am not persuaded that this is because witnesses did not believe that anything untoward had happened. They did not put in reports because one had been put in 9.
[16] Firstly, I accept that the room was light enough for the four witnesses to see what occurred. The witnesses were able to describe what happened with some degree of confidence and were therefore able to see what happened, and none claimed it was too dark to see what happened. Secondly, the witnesses were standing roughly in the order of the patient, Mr.Guneyi, and Mr.Lucisanno on one side of the bed, and Mr.Holden on the other, with the nurse Mr.Rohan Dawson at the other end of the bed. There were some variations. Thirdly, I accept that the contact made by Mr.Guneyi was more in the nature of a slap rather than a push. To some degree this is a matter of expression. However I note for example that Mr.Dawson described the incident at one stage as an assault 10. This is an indication that he saw the incident as serious and not simply a spontaneous push. Finally, the patient said to Mr.Guneyi that she was going to punch him or ‘someone’, and that he responded by remaining where he was. Mr.Holden says that she said she was going to hit someone11, or hit Mr.Guenyi12, a threat of violence to those standing nearby. Mr.Guneyi gave evidence that she was engaging in threatening behaviour, and said she was going to punch someone13, and Mr.Lucisano gave similar evidence14. It seems likely that she threatened to punch Mr.Guneyi specifically15. In any event given where Mr.Guneyi was standing, having moved there with the clear intention of dealing with her, the threat was clearly relevant to him.
[17] In my view there are two difficulties with the conduct of Mr.Guneyi. Firstly, on any version of events the incident is not desirable. It is not desirable that patients are pushed or slapped, or that a security officer is punched. Security officers should not go to work on the assumption that they will be hit, and patients should not be hit if this can be avoided. Mr.Guneyi claims that he would do what he did again 16. Mr.Dolby17, the Support Services Manager, who supervises security officers, is someone with long experience as a security officer and then supervisor. His view was:
‘He [Mr.Guneyi] was advised that he was going to be punched by the patient based on the evidence of other witnesses and all my training with security and all the security I’ve done, the first thing you do to protect yourself is to take a stance that is giving you plenty of space, so a stance where you can have arms reach, you don’t put yourself in a position to be attacked and you keep a safe distance. Now if that fails to be available to you, in this case you restrain the patient. That means you grasp the patient and controlled lowering to the bed or to the floor, depending on the circumstances.’ [PN1271]
[18] Instead of appropriately acting, he said that Mr.Guneyi did the following:
‘The patient made a threat to punch him, Mr Guneyi stood his ground, stood there and waited to be punched.’ [PN1270]
[19] Mr.Holden, a security officer, gave evidence that he would have not let the patient strike him but he ‘would immediately move to grab and restrain the patient to prevent them from striking’ 18. Similar evidence was given by Mr.Dawson, a nurse, and a witness19. The infliction of physical violence by way of a slap, punch or push by the security officer to the patient is not desirable if it can be avoided. Mr.Holden thought it could have been avoided, as did Mr.Dawson. I accept that the employer has good grounds for saying that it does not have trust and confidence in Mr.Guneyi given that he would repeat the conduct in future. The statement that he would repeat the conduct in future shows, with respect, a lack of understanding of the responsibilities of a security officer on a central aspect of the role. The role of a security officer is to appropriately deal with violent patients, and threats of violence. In performing that role they must act to avoid harm to patients, staff, and themselves. Standing within striking distance after a threat of violence, and then retaliating with a slap, is not desirable conduct.
[20] Secondly, the better view of the evidence in my view is that Mr.Guneyi did not respond appropriately when the patient was threatening violence. It is possible even likely that he could have moved back, and he should at least have attempted to do so, or in the alternative attempted to restrain her. He did neither but stood there and was punched hard. This is not an appropriate response by Mr.Guneyi. It may be that many threats of violence are made which are not carried out, but some are. When they are, security officers will be hurt if they do not move an arm’s length away or restrain the patient. It is axiomatic to the nature of a security officer’s work, and to any sensible application of occupational health and safety laws, that all reasonable attempts be made to avoid injury to security officers, as well as to other staff and to patients. Mr.Guneyi’s conduct was not appropriate on any version of events.
[21] Thirdly, he then compounded the situation by retaliating with a physical act of his own, namely a slap, although it did not injure the patient. There were various descriptions of his arm movement, but I found it difficult to understand how an arm movement of the circular nature described would be a push. It would likely be more in the nature of a slap. Nor was it appropriate defence. He had already been punched and the appropriate response would be to restrain the patient or move back.
[22] Fourthly, I do not accept that Mr.Guneyi can in this case be absolved because the slap was entirely involuntary or spontaneous. There seems to be nothing that makes it more a spontaneous act than many similar physical altercations. It was largely a deliberate infliction of a physical response, although done quickly with events following in rapid succession. Mr.Guneyi is responsible for his actions in inflicting a physical response of this kind, in the circumstances before me.
[23] This case can be distinguished from for example NSW Health Services Northern Sydeny Local Health District v.Hargreaves 20. In Hargreaves a patient tried to bite a security officer, and he responded with an involuntary slap. On appeal the Commission refused to overturn the decision of the Commissioner at first instance, who had heard the evidence. The action was a reflexive one. The Commission refused to order reinstatement because the employer had lost confidence in the officer to act appropriately in the future21.
[24] It is unfortunate that a security officer with a good record, dedicated to his job, made a mistake of this kind. One must to some degree sympathise with Mr.Guneyi. He was doing a difficult job in unpleasant circumstances. The conduct of the patient he was dealing with was unacceptable. However, that is the nature of a security officer’s job. It is also a mistake on a matter which is central to the work of a security officer. It is therefore a good ground for summary dismissal.
[25] I find that there was a valid reason for termination of employment.
(b) Person Notified of that Reason
[26] It is agreed that Mr.Guneyi was notified of the reason for termination.
(c) Opportunity to Respond to any Reason
[27] It is agreed that Mr.Guneyi was provided with an opportunity to respond to the reason for termination.
(d) Unreasonable refusal to allow support person
[28] It is agreed that there was no unreasonable refusal to allow a support person.
(e) Warnings of Unsatisfactory Performance
[29] It is agreed that this is not relevant.
(f) Size of Business, (g) Dedicated Human Resource Specialists
[30] It is agreed that Melbourne Health is a large business with dedicated human resource specialists and high standards are expected of it, or at least no discount should be taken because of these issues.
(h) Any Other Matters
[31] I have had regard to all matters raised by the parties. The matter concerns a summary dismissal, and therefore a degree of seriousness of conduct is required for the termination to be appropriately the subject of summary dismissal 22. In my view the conduct warranted summary dismissal, given the circumstances, for the reasons set out above. I have also had regard to regulation 1.07 of the Fair Work Act Regulations 2009, which relevantly defines ‘serious misconduct’ as including conduct that causes serious and imminent risk to the health or safety of a person, or assault, and authorities such as AWU-FIME Amalgamated Union v Queensland Alumina Limited23. The circumstances of this case differ from many given that the applicant is a security guard.
[32] An issue relating to comparative treatment of employees was also raised in written submissions. In my view there is nothing in the comparative treatment of employees in the evidence before me which warrants a change to my conclusions about the matter, having regard to authorities such as Darvell v. Australian Postal Corporation 24. I am not satisfied that Melbourne Health has dealt with different employees in a different manner concerning the same or similar disciplinary issues. In particular, in the cases referred to involving Mr.Scerri, Mr.Scerri did not wish to make a formal complaint or provide a statement, and it was therefore not possible for Melbourne Health to proceed to form a conclusive opinion in relation to his allegations. Another case was examined and there was found to be insufficient evidence to proceed with an investigation25.
Harsh Unjust or Unreasonable
[33] In my view Mr.Guneyi was accorded a ‘fair go all round’. The termination of his employment was not harsh, unjust or unreasonable. An order dismissing the application is contained in PR532390.
DEPUTY PRESIDENT
Appearances:
Mr D Langmead for the applicant
Mr M Rinaldi for the respondent
Hearing details:
Melbourne
2012
10 December
11 December
1 (1995) 62 IR 371 at 373
2 (1938) 60 CLR 336 per Dixon J, at pp.362-363
3 (1992) 67 ALJR 170
4 [2007] AIRCFB 797; Giudice J, Lacy SDP, Cargill C
5 Eg. the Mr.Lucisano repeated that Mr.Guneyi’s action was ‘spontaneous’ approximately 16 times.
6 Exhibit M3, Attachment GD1
7 Exhibit M3, Attachment GD2
8 Exhibit M3, paragraphs 5-6
9 PN1702
10 PN1698
11 Exhibit M5, paragraph 6
12 Exhibit M2, TC6
13 Exhibit G2, paragraph 8 and PN
14 Exhibit G3, paragraph 6
15 Exhibit M2, TC9, TC
16 PN617-619
17 Exhibit M3, paragraph 8
18 Exhibit M5, paragraph 7
19 Exhibit M6, paragraph 6
20 Industrial Relations Commission New South Wales, Boland J, President, Walton J, Vice-President, Bishop C, 13 November 2012
21 At 6, 44-46, 56
22 Carter v The Dennis Family Corporation, Habersberger J [2010] VSC 406 at 36-42
23 [1995] IRCA 346; (1995) 62 IR 385.
25 Exhibit M4, paragraphs 4-11.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR532053>