Margaret Hardy and St Vincent's Hospital Sydney Ltd [2001] NSWIRComm 148 (11 July 2001)

Last Updated: 11 September 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Margaret Hardy and St Vincent's Hospital Sydney Ltd [2001] NSWIRComm 148

FILE NUMBER(S): 582

HEARING DATE(S): 29/04/2001, 30/04/2001, 11/05/2001, 16/06/2001

DECISION DATE: 11/07/2001

PARTIES:

Nurses' Association of New South Wales

St Vincent's Hospital

JUDGMENT OF: Grayson DP

LEGAL REPRESENTATIVES

APPLICANT:

Mr.N.Dawson of counsel

NURSES' ASSOCIATION OF NSW

Ms.M.Jaeger

RESPONDENT:

Mr.J. Fernon of counsel

SOLICITORS:

Baker & McKenzie Solicitors

CASES CITED: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70

Briginshaw v Briginshaw (1938) 60 CLR 336

Western Suburbs District Ambulance Committee v Tipping

[1957] AR (NSW) 273

Bigg v NSW Police Service (1988) 80 IR 434

Barrett v Crown Street Women's Hospital

[1947] AR 565

Re Homebush Abbatoir [1996] AR (NSW) 386

WD & WO Wills (Australia) Ltd v Jamieson

[1957] AR (NSW) 547

North Television Corporation Ltd [1976] 11 ALR 599

Flynn v JC Hutton Pty Ltd (1982) 3 IR 413

Williams v Printers Trade Services (1984) 7 IR 82

Wallace v Deering Auto Electrics (1985) 12 IR 34

LEGISLATION CITED: Industrial Relations Act 1996

Mental Health Act 1990

JUDGMENT:

- 23 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: GRAYSON DP

DATE: 11 JULY 2001

Matter No: 582 of 2000

MARGARET HARDY AND ST VINCENT'S HOSPITAL SYDNEY LTD

Application by the New South Wales Nurses' Association re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

_______________________________________________________________________

DECISION

1 In this matter, the New South Wales Nurses' Association on behalf of Margaret Hardy (the applicant) seeks relief pursuant to s84 of the Industrial Relations Act 1996 (the Act) from allegedly unfair dismissal by St. Vincent's Hospital Sydney Ltd. (the hospital).

2 Following unsuccessful attempts at conciliation, the matter proceeded to hearing on 29 March 2001, 30 March 2001, 11 May 2001 and 12 June 2001. Throughout the proceedings, Mr.N.Dawson of counsel appeared for the applicant and Mr.J.Fernon of counsel appeared for the hospital.

3 Evidence in the applicant's case, in addition to her own, was taken from Ms Robyn Whatman, an organiser with the Nurses' Association for the past seven years and a trained nurse prior to holding that position, as well as from Dr.Peter Klug, forensic psychiatrist. There were also copies of clinical notes covering the applicant's attendance on 19 January 2000 in the psychiatric unit of Prince of Wales Hospital, about which more will be said later.

4 Evidence in the hospital's case was taken from Ms. Jennifer Kidd, director of nursing and patient care services and the ultimate decision maker in respect of the termination of the applicant's employment. Attached to the affidavits of each of the witnesses were copious amounts of documentary material in the form of clinical records, notes of various meetings, items of correspondence exchanged in the course of disciplinary action taken against the applicant and so on and additionally in both cases, there was documentary evidence going to various matters canvassed in the course of the debate.

5 The essential question to be answered and the issue upon which the parties could find no common ground throughout the proceedings is whether the applicant's action in removing certain items of hospital property between 29 December 1999 and 9 January 2000 were fairly and reasonably characterised by the hospital as serious and wilful misconduct, such as might justify her summary dismissal from the hospital's employment on 3 February 2000.

6 The applicant deposed to being a nurse of many years standing having trained initially at St. Vincent's Hospital between 1975 and 1978 and, in the intervening 22 years since then, having acquired considerable experience as well as graduate and post-graduate qualifications in the nursing profession. She specialised in the fields of orthopaedics and trauma, though mainly the former.

7 Between January 1998 and her dismissal on 3 February 2000, she occupied the senior position of clinical nurse educator in orthopaedics. In October 1999, she successfully applied for the position of clinical nurse consultant in orthopaedics at Prince of Wales Hospital.

8 The position was a maternity leave relief position and the applicant was due to commence duties there on 24 January 2000 having applied for and been granted leave without pay from St.Vincent's Hospital for a maximum of twelve (12) months.

9 It is relevant to state at this point that relationships between the applicant and one of her colleagues, Ms.Jenny Lane, had from time to time since Jenny Lane's appointment in March 1999, been less than harmonious. In fact, the nursing unit manager Mr.P.Morgan, conducted formal counselling sessions with the applicant and Jenny Lane in June and July 1999 in an attempt to improve matters.

10 The evidence would seem to indicate that whilst there were certain gains in this regard following the counselling sessions, the ongoing interpersonal and working relationship between the two of them could not be described as ideal.

11 Matters worsened when on 23 September 1999, Jenny Lane in her then capacity as acting nursing unit manager wrote to the applicant and requested her attendance the following day at what was described as an investigatory meeting to discuss her work performance. The applicant was told in that letter that:

"the principal issue of concern surrounds your communication skills, with particular reference to a complaint...from Professor Ho".

(Annexure F, Exhibit A)

12 The meeting did not go well as the evidence makes clear, with the applicant expressing the feeling that given their previous difficulties, she did not view Jenny Lane's involvement in her performance appraisal as being impartial or appropriate. The applicant candidly admitted that she found difficulty submitting to supervision by Ms.Lane who was many years her junior and whose professional work she had criticised earlier in the year in her capacity as Ms.Lane's preceptor.

13 The applicant vigorously disputed the factual basis of Professor Ho's complaint against her which may be described relevantly for the purpose of these proceedings, as being related to her perceived discourtesy and lack of professionalism in entering a tutorial room the two shared, whilst Professor Ho was conducting his weekly clinical teaching for medical students.

14 The substance of Professor Ho's complaint is to be found in Exhibit 6 in the respondent's case which is a letter he wrote to the hospital's director of nursing.

15 Whatever may ultimately have followed the making of that complaint by Professor Ho and its denial by the applicant was overtaken by events, however, when the applicant embarked upon sick leave on 30 September 1999 and as will be seen she did not return to work with St. Vincent's Hospital again.

16 Medical certificates covering her lengthy absence on sick leave form part of the affidavit of the hospital's director of nursing, Ms.Jennifer Kidd (Exhibit 5, Annexure A) and reveal, as the applicant herself deposed that she suffered variously throughout the ensuing three (3) months or so with "gastro-intestinal symptoms and abdominal pain" (Exhibit A), as well as severe stress, anxiety and depression. The evidence also reveals that she underwent surgery, possibly of an exploratory nature, in November 1999.

17 It was whilst she was on sick leave that the applicant applied for and was successful in obtaining the maternity leave relief position at Prince of Wales Hospital, an arrangement which was the subject of formal offer by letter of 17 December 1999 and which was intended to commence on 24 January 2000 (see Annexure A, Exhibit A).

18 It would seem clear from the evidence that the arrangement was beneficial or potentially beneficial for all concerned given that it afforded respite from the ongoing tensions in the workplace as well as a professional development opportunity for the applicant. One may assume with safety, I think, that the arrangement was supported by the director of nursing, Ms.Jennifer Kidd with those things in mind.

19 At all events, what next transpired was the catalyst for the applicant's dismissal from employment and in my opinion, was a sequence of events that can reasonably be described as regrettable and unfortunate.

20 The applicant, it seems, attended St. Vincent's Hospital on 27 December 1999 and 28 December 1999 and began to pack certain items in the tutorial room into boxes. She was observed carrying out these activities by two registered nurses (RN Bell and RN Hagarty), who reported the activities to the nursing unit manager, Mr.P.Morgan.

21 The applicant did not accept, as was said about her conduct on those days, that she displayed screaming and abusive behaviour towards those who observed her. She did, however, admit to the use of loud and at times coarse language and to threats of legal action against Ms.Lane, to whom earlier reference has been made, against the nursing unit manager Mr.P.Morgan, and against Ms.L.Everson, the clinical services group manager for reasons to do with the way she was being treated.

22 She said she was particularly distressed at the time by the hospital's action in unilaterally recovering $1100 for allegedly overpaid sick leave. This left her short of money for Christmas.

23 She further said she did not believe at the time that she was within earshot of patients although those who observed her thought otherwise.

24 Upon hearing of the applicant's conduct the director of nursing, Ms.J.Kidd suggested that a meeting be arranged with the applicant to discuss her conduct. This task fell to Ms.T.Straughan, the acting clinical services group manager, who arranged for such a meeting to take place on 6 January 2000.

25 The applicant failed to attend the meeting due, she said to a change in the starting time from 2.30pm to 10.00am without her consent and to the fact that she was feeling unwell that morning and had to attend a funeral that afternoon (see Exhibit B, par 8, 9).

26 At all events, the applicant was again observed on 9 January 2000 to be in the tutorial room, on this occasion with a male companion, and when spoken to by registered nurse Hagarty, is alleged to have indicated she was there to collect the rest of her belongings.

27 She does not deny that she also removed hospital property used for training in orthopaedics such as hip and knee prostheses, internal fixation devices (pins and plates), an x-ray viewing box as well as various photographic teaching aids, patient handover records, text books and stationery items although there remains some dispute as to the rightful ownership of certain books.

28 On 10 January 2001, the applicant's conduct was again reported to the director of nursing Ms.J.Kidd who suggested on this occasion that the human resources manager Mr.K.Tapfield, be brought in to assist in any investigations or meetings and further, that hospital security should be contacted about advising the police. (Exhibit 5, par 9).

29 Ms.Kidd was informed the next day, 11 January 2000 that the applicant had again attended the hospital and on this occasion had provided a medical certificate covering her absence until 24 January 2000.

30 On 14 January 2000, with Ms.Kidd's approval, a letter was delivered to the applicant at her home address raising allegations of serious and wilful misconduct and raising further the proposition that should the hospital form the opinion that the allegations were substantiated, then her employment would be terminated. She was not told that the police had been involved.

31 The letter (Annexure 1 to Exhibit 5) requested the applicant's attendance at a meeting on 18 January 2000 for the purpose of offering her response to the allegations and recommended that she arrange to bring a witness who may be a Nurses' Association representative.

32 The evidence was that at 1.30am on 16 January 2000, police arrived at the applicant's apartment and spoke to her about the allegedly stolen property. The police asked to be and were shown the property that had been removed from the hospital to the applicant's apartment.

33 The police asked the applicant to accompany them to Kings Cross Police Station for the purpose of making a statement. She did so freely, it would seem, although one is left to speculate why the police enquiries needed to be conducted in the dead of night. There may be some operational reason for this which did not emerge in evidence, but at all events and as may be readily imagined, the account of that night's events given by the applicant to Dr.Klug, the psychiatrist, is unsurprising.

34 Dr Klug recounted the history he took in that regard as follows:

"At 1.30am on Sunday morning, 16 January, police arrived at her apartment. There were two constables and a plain clothes police officer - "to discuss matter relating to work". Ms.Hardy lives alone and was very frightened. The police said she had been accused of theft from the hospital and wanted to be shown what she had "on the premises". She let them in and showed them around her small apartment. The police asked whether she had "prosthetic limbs on the property", obviously misunderstanding the nature of whatever allegation had been made. She showed them the prosthetic devices, the x-rays and the viewing boxes.

She was then taken, in the front of a paddy-wagon, to Kings Cross Police Station where she gave a statement. She was extremely anxious and upset. She then walked home at about 3.30am without any charges having been made."

(Exhibit F)

35 What next relevantly occurred and one may observe at this point, hard on the heels of the police activities, was that the applicant attended the meeting with hospital authorities on 18 January 2000 as requested.

36 She was accompanied on this occasion by Nurses' Association organiser Ms.R.Whatman with whom she had made contact a number of days earlier on receipt of the letter from the hospital.

37 The hospital on this occasion was represented by human resources manager, Mr.K.Tapfield and by Ms.L.Everson, clinical services group manager who then had carriage of the matter under delegation from the director of nursing to whom she reported.

38 It is important at this point to observe that the applicant at no time denied removing the property from the hospital, at no time resiled from or qualified her explanation that she intended to make use of the property as teaching aides across the south Eastern Area Health Service during the period of her secondment to Prince of Wales Hospital, and at no time resiled from or qualified her stated intention to return the property to St Vincent's Hospital on return from secondment.

39 It might also be usefully observed at this point in the light of the evidence and her concessions in this regard, that given the loud and very public display she made in the process of removing the property from the tutorial room, she could hardly be accused of employing stealth as an ally in the act of theft of which she is accused.

40 In fact, she informed the hospital security office on 9 January 2000 that she was there to remove property, albeit not specifically hospital property (T32.15) in order to enable her friend to park his car (Exhibit A, par 33).

41 Furthermore, she left items she had packed in the tutorial room in milk crates she had obtained from outside the pharmacy department (Exhibit A par 31, 32 and Exhibit B, par 7) until 9 January 2000 when she returned to collect them.

42 In respect of property that she removed to her apartment which was not intended for use in her new position at Prince of Wales Hospital such as an x-ray viewing box and patient hand-over records (Exhibit 2), the applicant said she did so for reasons of safekeeping during her absence.

43 At all events, the disciplinary interview on 18 January 2000, a record of which was made by Ms.Everson (Exhibit 5, Annexure M) concluded with an apology on the applicant's part and an arrangement by which a hospital security officer would collect the property from the applicant's residence on 20 January 2000.

44 The applicant was told that her response to the allegations would be considered and that she would be informed by close of business on 20 January as to the outcome. She was told that termination may be such an outcome. She was also told that caution or formal warning were alternative outcomes.

45 On 19 January 2000, following a referral from Nurses' Association organiser, Ms Whatman, the applicant was scheduled under the Mental Health Act 1990 (see Exhibit G), forcibly removed from her home, again placed in a police vehicle and taken to the Prince of Wales Psychiatric Unit for assessment.

46 It would seem that Ms.Whatman became concerned for the applicant's welfare following an emotional phone call from her that day and had then contacted the Darlinghurst (Caritas) mental health crisis team acting in what she considered to be the applicant's best interests at the time. It will be recalled that Ms.Whatman is a trained nurse.

47 The transcript records the applicant's description of the occurrence in this way:

"Q. You were asked about 19 January and you said you do not remember about a number of events on that day other than that being the day you were scheduled. Do you remember much about that day?

A. I remember, I suppose, the details in the conversation with Robyn Whatman where she said she contacted the Darlinghurst community health team and then the events in the afternoon which led to the scheduling.

Q. And what events were they?

A. I was staying at my parent's house. I returned to my home in Darlinghurst. As I was going through the gate there were two members of the Darlinghurst mental health team. They were dressed in shorts and had mobile phones, but no identification. As I went into my own apartment they just called out my name, without identifying themselves, and then I went into my apartment. The next I remember, there were people banging at the door asking to be let in and I told them to go away. That desisted for a while. I then left to get some copies of my CV and was held over by a member of the crisis team.

Q. You said the doctor came with the crisis team?

A. The second lot of people that came, yes.

Q. And what happened after that, if you remember anything at all?

A. Well, there was a brief discussion in the front of my premises, about a quarter to five. He appeared to be wanting to get off work himself, so he asked two or three questions and said, "Right, you're being scheduled". The police were already waiting and I was taken into a paddy wagon, at the back of the paddy wagon, and then taken to Prince of Wales to their psych unit."

(T64-66)

48 On any view this was a most unfortunate and distressing occurrence for the applicant who at the time had been moved to the point where she was threatening self harm and who was ultimately released that night into the care of her parents, after giving assurances that she would not self- harm overnight. A follow up by the crisis team was also arranged. ( See Exhibit G).

49 Unsurprisingly, in the light of those events, the pre-arranged collection of property on 20 January 2000 did not take place.

50 The hospital instead wrote to the applicant that day (Exhibit 5, Annexure N) indicating that they held serious doubts about the explanation she had proffered at the disciplinary interview on 18 January 2000 and requiring her to be present at a meeting the following day (ie, 21 January 200) to further discuss the matter and to make alternative arrangements for the return of the property.

51 The hospital wrote to the applicant again on 21 January 2000 advising of arrangements made through the Nurses' Association to the effect that:

"(I). Items belonging to the hospital would be collected from your residence and returned to the hospital today, 21 January 2000;

(II). You and the Association were unable to attend the meeting today

(III). That your unavailability was due to your ill health and that we were to contact the Mental Health Crisis Team if we needed any further information as to your condition."

(Exhibit 5, Annexure P)

52 That letter was under the hand of Ms.Kidd, the director of nursing who by this time had evidently decided that it was appropriate to formally take carriage of the matter.

53 The letter also said this:

"As I am currently considering the termination of your employment I must know whether this medical condition in any way impacts upon this consideration and your refusal to attend today's meeting. Accordingly if it is your intention to explain your actions with reference to any illness or injury, I would ask that you either supply me with suitable medical evidence as to any condition or authorise me to discuss your treatment with the Mental Health Service.

At this stage I am also concerned that you are fit to perform all aspects of the duties associated with your current role and to the extent that any condition may impact on your ability to take part in the proposed secondment. I will need this information as a matter of urgency"

(Exhibit 5, Annexure P)

54

55 What next transpired in the sequence of events leading up to the dismissal was that the applicant, accompanied by Ms.Whatman attended a meeting with Ms.Kidd and Ms.Everson on 24 January 2000.

56 A record of that meeting was prepared by Ms.Everson and forms part of the material annexed to Ms.Kidd's affidavit (Exhibit 5, Annexure T). Plainly as Annexure T records, both the applicant and Ms.Whatman were at pains to again state the circumstances and the state of mind in which the applicant found herself at the time the property was removed.

57 The applicant conceded that her assumption that the property would be of use in the new position at Prince of Wales Hospital was based on an incorrect premise and plainly, she conceded that her behaviour in hindsight, was erratic and overly emotional.

58 She was informed, according to Annexure T, that the health-related matters upon which she relied would be taken into consideration in explanation of her actions and in that regard, contact would be made with her medical carer for verification as soon as possible subject to the applicant providing the necessary authorisation. She was then informed that she could expect the hospital's response by 28 January 2000.

59 Sometime later on 24 January 2000, Ms.Kidd made contact with Dr.P.Fallon, the applicant's long term local treating practitioner who described his patient's medical history including the fact that an anxiety depressive state had existed for some months.

60 Ms.Kidd's written record of her discussion with Dr.Fallon on that day and on the day following (25 January 2000) forms part of the material attached to her affidavit (Exhibit 5, Annexures V and W).

61 When asked by Ms.Kidd whether he believed the applicant's medical condition may have contributed to her stealing the property, Dr.Fallon is recorded as having said words to the effect:

"Not directly. Physical problems, they may have affected her judgement. She had been badly stressed at work. It was foolish she showed poor judgement."

(Exhibit 5, Annexure V)

62 On 27 January 2000, Ms.Kidd again wrote to the applicant indicating that she had yet to understand any causal connection between her actions and any medical condition she may have and indicating further that she had, with the applicant's authority, discussed the matter with Dr.Fallon. In the same letter, Ms.Kidd went on to say:

"Whilst Dr.Fallon outlined the extent of your medical condition he was unable to say how these particular ailments could justify your actions.

It would appear from the discussion with Dr.Fallon that he had no knowledge of how you came to receive treatment from the Mental Health Service under Schedule 2 of the Mental Health Act. On the basis that Dr.Fallon has not been able to shed any further light on your actions I wish to provide you with one final opportunity to explain your actions.

The proposal put forward that you be considered as an impaired nurse is secondary to the consideration as to whether you engaged in serious and wilful misconduct. This proposal will only be considered if the hospital can be convinced that you have not engaged in any misconduct.

The hospital seeks your response by Monday 4.00pm on 31st January 2000.

(Exhibit 5, Annexure X).

63 I am bound to observe at this point, and she was taken to this in some detail in cross-examination by Mr.Dawson of counsel (T134-136), that Ms.Kidd's portrayal in that letter of Dr.Fallon's response to her questions is somewhat at odds with both her own note of the discussion (Annexure V) and as will be seen, with Dr.Fallon's account of the discussion.

64 For example, she did not mention in that letter, what Dr.Fallon had said about the applicant having suffered with anxiety and depression for some months and further, from the answer she attributed to him in Annexure V which I have set out above, Dr.Fallon was allowing for an indirect contribution having been made by the applicant's medical condition and also in the general context of physical problems and stresses being experienced at work, for her judgment to have been affected.

65 Certainly, that was the position Dr.Fallon took in his report of 31 January 2000 as follows:

To Whom it May Concern , 31 January 2000

Re: Margaret M Hardy

This patient has had multiple physical problems over a period of six months. Some of these required surgical intervention.

Margaret suffered severe stress at work last year - apparently due to personality clashes.

The combination of physical and psychological problems caused her to develop severe anxiety/depression.

I have no doubt this mental condition could well have clouded her judgement in removing articles from her office at St.Vincent's Hospital.

DR. Peter Fallon

(Exhibit 5, Annexure DD)

66 That report was prepared by Dr. Fallon following a telephone call from and at the request of Ms.Whatman from the Nurses' Association on 31 January 2000 and from what he told Ms.Whatman, Dr.Fallon was far from non-committal when he spoke to Ms.Kidd on 27 January 2000.

67 In fact, Ms Whatman's file note of her conversation with Dr.Fallon on 31 January 2000 on which she was cross-examined (T85-88) reveals that the doctor was of the view that his words to Ms.Kidd on 27 January 2000 fell on deaf ears, that Ms.Kidd "did not listen" when told that the applicant's judgment may have been clouded by her mental condition at the relevant time. (also see Exhibit 3).

68 Returning then to the sequence of events leading up to the dismissal the Nurses' Association contacted Ms.Kidd on 31 January 2000 seeking an extension of time to respond. It is noted that the applicant was at this time certified medically unfit for work until 15 February 2000 suffering with anxiety depression (Exhibit 5, Annexure B).

69 Ms.Kidd informed the Nurses' Association that if a response was not received by 4pm on 2 February 2000, the hospital would consider termination (Exhibit 5, Annexure Z).

70 The Nurses Association then informed Ms.Kidd that the applicant was unwell and thereby unable to attend meetings until cleared by her doctor. The Association advised Ms.Kidd that a medical report was being sought and that arrangements for further meetings would be made when the applicant was well enough (Exhibit 5, Annexure AA).

71 I take that reference to a medical report to be a reference to the report I have set out above and as Ms.Whatman's evidence reveals, it was a report which although dated 31 January 2000, actually reached the Nurses' Association from Dr.Fallon at 10.13am on 3 February 2000, a short time after the letter terminating the applicant's employment. (T91-94 and see also Exhibit D and E).

72 The sad fact among many in this case is that had the hospital authorities done as they were asked by the Nurses' Association and waited until the applicant was well enough to again participate in the disciplinary enquiry, Dr.Fallon's report would have been available to them and in the result, the very obvious doubts about whether the applicant's mental condition at the time played a role in the removal of hospital property may have been dispelled.

73 However, this was not the approach taken and on 2 February 2000 Ms.Kidd decided to dismiss the applicant (T136-7). That decision was reduced to writing and forwarded the next morning to the applicant and to the Nurses' Association.

74 Ms.Kidd advised her counterpart at Prince of Wales Hospital of the applicant's dismissal in consequence of which, the applicant was informed that the offer of secondment to that place was withdrawn (Exhibit A, Attachment C).

75 Now, it is well settled by the authorities that as a general rule, the onus is on the applicant to establish that the intervention of the Commission is warranted in cases where unfair dismissal is alleged.

76 It is generally for the applicant to discharge the onus of satisfying the Commission as to the existence of a proper case for the Commission's intervention (see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.; Bigg v NSW Police Service (1988) 80 IR 434; Barrett v Crown Street Women's Hospital [1947] AR 565; Re Homebush Abattoir [1996] AR (NSW) 386 and others.)

77 It is equally well settled however, that where as here there are allegations of serious and wilful misconduct at the heart of the employers decision to dismiss an employee, there is a subtle shift of that onus.

78 In Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70, Hungerford , J expressed it this way:

"It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union....However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr.Newell submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgement which said at 644:

"Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved".

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it."

79 Furthermore and whilst proof in unfair dismissal cases is required to the civil standard only or in other words on the balance of probabilities, it is also the case that the more serious the allegation, the more the balance must weigh in favour of the allegation before it is proven to the tribunal's satisfaction.

80 In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon J as he then was described it thus:

"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 adopted. 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 the inexact proofs, indefinite testimony, or indirect inferences".

81 Much turns in this case on whether the applicant is to be believed when she asserts as she has done consistently at all stages of the disciplinary process, in the course of assisting police with their enquiries, and throughout these proceedings, that she intended for the property she removed from the hospital to be used in her new position at Prince of Wales Hospital ; that she had no intention to ultimately deprive the hospital of it's property; that she had every intention of returning the property when her secondment to Prince of Wales Hospital ceased; that she genuinely believed the position to which she was being seconded to be an area position with implications for shared use of the teaching resources by St. Vincent's Hospital and that in the course of an introductory walk around Prince of Wales Hospital she was not shown any teaching resources thus entitling her to believe she should bring her own.

82 These matters and all other matters given in evidence throughout these proceedings were the subject of searching and meticulous cross-examination by counsel on both sides of the record and I am unable after careful consideration, to understand why the applicant who appeared to me to be a witness of truth and reliability was simply not believed by the hospital authorities in the explanations she offered. She does not say and nor could she with respect, that her actions in removing the property were appropriate and she has on a number of occasions extended her apologies for those actions.

83 For all of that, however, I am unable to conclude as Mr.Fernon contends that her motives in removing the property were vindictive and calculated to punish the hospital, although I readily accept that her loud and angry disposition at relevant times may have given rise to such a conclusion. This is a matter in my opinion, to which she will have to give careful and measured attention in the future in the interests of avoiding unnecessary and counterproductive upheaval in the workplace.

84 I also accept, on balance, that the applicant was concerned that the bundle of patient hand over records (Exhibit 2), which she had collated at the request of her nursing unit manager for use as a teaching aide, were not left in an unsecured work space during her absence (T37). I further accept on balance that she had similar concerns about the x-ray viewing box and that was why she removed it from the tutorial room to her apartment.

85 It was not as if she took the hospital property and disposed of it as one might expect of a person acting vindictively and, when it was all said and done it was in my judgment, the conduct of someone who was deeply troubled and behaving accordingly. These were not the actions of someone in complete command and exercising sound judgment at the time and in that regard, I accept the expert opinions of Dr.Fallon and Dr.Klug upon which the applicant relies.

86 As to the submissions of Mr.Fernon of counsel and I repeat them verbatim that:

"Dr.Fallon was not called to suggest that the applicant had any other complaints prior to the first meeting of January 2000."

and:

"Dr Klug's opinion was that the applicant was suffering a "probable generalised anxiety disorder". This opinion should not be accepted to explain the applicant's condition at the time of her wrongful conduct. Dr.Klug did not see the applicant until July or August 2000. Further, and importantly, there is no evidence that any of the relevant symptoms of such a disorder were present in December 1999 or early January 2000."

87 As to that, I would quietly observe that such evidence exists in the respondent's own case in the file note which is Annexure V to Exhibit 5. It is clear from Ms.Kidd's own account of her conversation with Dr.Fallon that, in his expert view, the applicant had been suffering with anxiety depression for some months prior to 24 January 2000 when that conversation took place.

88 Any attack on that evidence should logically have come from the respondent whose option it was to call Dr.Fallon if it so chose. As it is and in the absence of any such attack, the evidence stands unrebutted and I accept it accordingly.

89 In all the circumstances, I cannot in good conscience characterise the applicant's actions in removing the property of the hospital as serious and wilful misconduct. Unwise, imprudent, misguided, irrational, inappropriate may be adjectives capable of describing those actions but not, in my judgment, serious and wilful misconduct of which she is accused and for which she was dismissed.

90 That being the case, the question must be whether the applicant's actions in removing the hospital property without authorisation constitutes sufficient ground for dismissal even though, as I have found, those actions cannot be characterised as serious and wilful misconduct.

91 In that regard, I am comfortably satisfied that the question should be answered in the negative. Simply put, the applicant's dismissal from her employment in circumstances where she acted on an innocent, albeit incorrect belief that the position at Prince of Wales Hospital was an area position and where at the relevant time her ability to exercise sound judgment was compromised, was in my opinion harsh, unjust and unreasonable. Accordingly I find the applicant was unfairly dismissed.

92 Turning then to the question of remedy, the applicant presses strongly for reinstatement in the event of a finding in her favour in respect of wrongful dismissal.

93 The evidence of Dr.Klug indicates fitness for work as a clinical nurse educator:

"on the condition that she does not return to a situation in which she is stressed in a similar fashion as she was when her symptoms arose"

(Exhibit F)

94 Mr.Fernon argues that Dr.Klug's opinion suggests in a practical sense that the precondition as to fitness for work is unrealisable because the stresses of which Dr.Klug spoke in his report are stresses of a kind which can and often do emerge routinely in any given workplace.

95 In my view, that would be reading too much into Dr.Klug's evidence and this is particularly so given the applicant's evidence that she has been actively searching for and at a point in time which was not made clear, actually found nursing work at Sydney Hospital. It may be inferred with safety, I think, that she would not have done so against the advice of her treating doctor or contrary to her own feelings of health and wellbeing. I do not find such a submission persuasive on the evidence as it stands.

96 Mr.Fernon next argues that if the Commission were minded to order reinstatement, it should not order payment of remuneration lost to the applicant between the date of dismissal and now. Mr.Fernon points to the time taken for the proceedings to be conducted which he submits is a matter beyond the control and not the fault of the respondent. By that, I take Mr.Fernon to mean that his client should not be punished because of the time taken for the conduct of the proceedings by being ordered to pay what is by now a substantial amount of remuneration lost to the applicant. The basis of that submission is unclear and without more should be rejected in my opinion.

97 The discretionary orders contemplated by s 89(3) and s89(4) of the Act are ancillary to orders for reinstatement or re-employment and are it seems to me, remedial in nature rather than punitive.

98 They are in the exercise of discretion, orders which the Commission may make to compensate an employee for being wrongfully deprived or kept out of remuneration, rather than to punish an employer for it's actions in wrongly depriving an employee of remuneration.

99 The employer, on the other hand, may be regarded as having had the use of monies that would otherwise have been in the hands of the wrongly dismissed employee throughout the period of litigation. Further, it is not the time taken for the conduct of proceedings that has deprived the applicant of remuneration, it is the dismissal from employment.

100 The third and final limb to Mr.Fernon's argument in this regard is that the applicant was offered work as a registered nurse in orthopaedics at Prince of Wales Hospital subsequent to her dismissal and declined to take the job.

101 The applicant was taken to this in cross-examination by Mr.Fernon and later in re-examination by Mr.Dawson (T61-64) and my impression of that evidence was that, at the time she was offered the work, she was still unwell.

102 Further to that, she had a preference for other than work as a registered nurse, having done that work before and finally, the circumstances of her dismissal had by implication at least, been made known to Prince of Wales Hospital and she felt that her professional standing would have been under constant scrutiny, as she put it.

103 I note in that regard, that the offer of work as a registered nurse in orthopaedics came from Prince of Wales Hospital to the applicant on 10 February 2000 (see Exhibit A, Attachment C), a week after she had been dismissed and whilst she was still certified as medically unfit for work (see Exhibit 5, Annexure B).

104 I further note that the offer of such employment was expressed to apply to a time "when your personal situation resolves" and therefore had an in futuro character to it which was not defined or explained in evidence. Without more, it could not be held against the applicant that she failed to mitigate her loss by not pursuing that avenue of employment.

105 This is particularly so when it is considered that she subsequently looked elsewhere for employment and found it on a casual basis at Sydney Hospital (T.64). Details of when that employment was found and what remuneration has thereby been earned are not before the Commission.

106 In my view the applicant should be reinstated to the position of clinical nurse educator in orthopaedics on the basis that her service is taken not to have been broken by the dismissal and I so order.

107 Furthermore, she should be paid an amount not exceeding the remuneration she would have received but for being dismissed, less any amount she has earned subsequent to being dismissed and I so order.

108 These orders are to be complied with by the hospital within twenty-eight days.

LAST UPDATED: 03/09/2001