Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 (2 July 2009)

Last Updated: 3 July 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Casari v Sydney South West Area Health Service [2009] NSWIRComm 103



FILE NUMBER(S):
IRC 2428

HEARING DATE(S):
25 May 2009

DATE OF JUDGMENT:
2 July 2009

PARTIES:
APPELLANT:
Carlos Casari

RESPONDENT:
Sydney South West Area Health Service

CORAM:
Boland J President Walton J Vice-President Kavanagh J


CATCHWORDS: APPEAL - Unfair dismissal - Summary dismissal for serious and wilful misconduct – Photograph taken of naked two year old child patient in hospital – No claim that photograph taken for improper purpose – Whether trial judge erred in finding dismissal was not harsh unreasonable or unjust – Contemporary law relating to summary dismissal – Common law duty of fidelity and good faith – Whether taking of photograph struck at the heart of the employment contract or was so repugnant to appellant's relationship with the respondent that it warranted summary dismissal – Reinstatement the primary remedy – Trust and confidence – Re-employment ordered subject to immediate resignation.

LEGAL REPRESENTATIVES
APPELLANT:
Mr A G Rogers of counsel
D'Agostino Solicitors
(Mr D Delfino)
RESPONDENT:
Mr D Gardner, solicitor
Maddox Lawyers

CASES CITED:
Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648; 93 IR 1
Blyth Chemicals v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Bruce v AWB Ltd [2000] FCA 594; (2000) 100 IR 129
Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288
Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325
Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 131 ALR 422
Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240
Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 411
Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282
Hotson v Fitzgerald [1985] 1 WLR 1036
Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37
In re Barrett and Women's Hospital, Crown Street [1947] AR 565
Joseph Brant Memorial Hospital v Koziol (19770 77 DLR (3d) 161
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45
Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212
NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46
Pepper v Webb [1969] 1 WLR 514
Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186
Plummer v Stannard Bros Launch Service [2005] NSWIRComm 301; (2005) 145 IR 111
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
Riley v Workcover Authority [2006] NSWIRComm 108
Robb v Green [1895] 2 QB 315
Roe v Minister of Health [1954] 2 QB 66
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479; 109 ALR 625
Sidaway v Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871; 1 All ER 643
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Thomsen v Davison [1975] Qd R 93

LEGISLATION CITED:
Industrial Relations Act 1996
Summary Offences Act 1988


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: BOLAND J, President
WALTON J, Vice-President
KAVANAGH J

Thursday 2 July 2009

Matter No IRC 2428 of 2008

CARLOS CASARI v SYDNEY SOUTH WEST AREA HEALTH SERVICE

Application by Carlos Casari for leave to appeal and appeal against a judgment of Justice Schmidt given on 10 December 2008 in Matter No IRC 1449 of 2007

DECISION OF THE COMMISSION
[2009] NSWIRComm 103

1 Carlos Casari ('the appellant') has made application for leave to appeal and, if leave is granted, to appeal against a decision of Schmidt J (Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240) given on 10 December 2008 in which her Honour dismissed Mr Casari's application for relief from unfair dismissal.

2 Mr Casari, 64 years old, had been employed with Sydney South West Area Health Service for just under 12 years. He was summarily dismissed for serious and wilful misconduct in July 2007. The reason for his dismissal related to the taking of a photograph of a naked two year old patient in the emergency department of Liverpool Hospital.

First instance decision

3 At [2] of her decision, Schmidt J outlined the circumstances of the dismissal and the events leading up to it:

[2] The hearing of these proceedings was delayed, during a police investigation into the matters which gave rise to the dismissal. Mr Casari later successfully defended a charge brought under s 21G of the Summary Offences Act 1988, of filming for indecent purposes. As I noted in the September decision [Casari and Sydney South West Area Health Service [2007] NSWIRComm 249]:

[3] The reason for Mr Casari's summary dismissal was not in issue. It was common ground that the dismissal followed Mr Casari, then employed as a wardorderlie, taking a photograph of a naked two year old patient in the emergency department of Liverpool Hospital. Mr Casari used his mobile phone to take the photograph. He accepted that he had no consent to taking such a photograph. The matter was investigated by Mr Casari's employer, the Sydney South West Area Health Service. Mr Casari was interviewed twice, on the second occasion he was accompanied by a union representative. He received a copy of the transcript of the interview, which he amended and signed and later, a copy of an investigation report, recommending his dismissal. He was also given an opportunity to provide reasons as to why he should not be dismissed. Mr Casari took legal advice and his solicitor made a written response, which was considered by the Area's Chief Executive, who made the decision that the employment should be terminated for serious and wilful misconduct, in breach of the NSW Health Code of Conduct. Notification of the circumstances was given to the NSW Ombudsman and Commission for Children and Young People and to the police.


4 Schmidt J considered the matter under five headings:

(1) Mr Casari's command of English.

(2) The fairness of the investigation process.

(3) Did the respondent establish that the conduct which led to the dismissal had occurred?

(4) Did Mr Casari establish an innocent motivation for his conduct in these proceedings?

(5) Was the decision to dismiss unfair?

Mr Casari's command of English

5 Her Honour noted that contrary to what had been advanced in the out of time application dealt with in September 2007, when the substantive case was opened for Mr Casari, the issue going to Mr Casari's command of English and any unfairness in the dismissal process, flowing from the absence of an interpreter, was abandoned. Further, that this course was taken despite Mr Casari’s evidence as to his poor command of English and the fact that this had earlier been claimed to have revealed the unfairness of the dismissal procedure.

6 Despite the appellant abandoning the claim that his poor command of English created unfairness in the dismissal procedure, Schmidt J felt compelled to address the issue. At [44] her Honour stated:

[44] Mr Casari plainly did not require an interpreter during the investigation process, in order to ensure that his ultimate dismissal could have been a fair one. To the contrary, there was not ever any real dispute about what had occurred. Mr Casari well understood what was being raised with him. He never denied having taken the photo in question, could understand the concern which had resulted in the employer investigating what had occurred, indeed it was he who raised that concern with Mr Schembri and Ms Lim, so as to assure them that he had had no indecent intent in taking the photo. That being so, he was convinced that his actions had not been wrong. He accepted that his actions could be misunderstood, but if he had no ill intent towards the child, his view which he has never abandoned, was that he had not engaged in any misconduct.

The fairness of the investigation process

7 Schmidt J noted that what was finally advanced in Mr Casari's case as to the fairness of the investigation process, was 'subtle failures of procedure'. Her Honour rejected the proposition that there was any unfairness in the investigation process. In this respect, her Honour observed that Mr Casari was given an early opportunity to explain his conduct. Then he had the assistance of a union representative during the further investigation and later, that of his solicitor. From the outset, he was given every opportunity to give an explanation for what he had done, as well as later, an opportunity to address the employer on whether or not he ought to be dismissed in the circumstances.

8 As her Honour further observed, the decision to dismiss was made by the Chief Executive Officer of the Hospital after consideration of a report prepared by Mr Alan Schembri, Director, Human Resources at Liverpool Hospital. Schmidt J noted that the report was criticised in two ways in the appellant's case. Firstly, for not making clear Mr Casari's advice that the photo did not depict the child's 'private parts' and secondly, for not referring to Mr Casari's claim that what he had done, had been done in the open. In addressing these criticisms, her Honour stated:

[49] I accept that the report does not expressly refer to either matter, although the report was accompanied by various documents, including the notes of interview which Mr Casari had settled, where he had explained that the photo had not included the child's private parts. That what had been done, had been ‘done in the open’ was never in question, as any reading of the report and attachments, makes clear. There was no question that the photo was taken of a child admitted to the paediatric section of the Emergency Department. The conclusions reached in the report were:

(i) Mr Casari has admitted on two separate occasions (on 6 July 2007, alone and on 13 July 2007, in the presence of his HSU support person) that he took a photograph of a naked 2 year old child without the consent of the parent/carer while he was on duty in the Emergency Department on 6 July 2007.

(ii) In the formal fact finding interview on 13 July 2007, Mr Casari has indicated that he did not believe that he was doing anything wrong and that he felt the child needed to be rewarded for his bravery. However, having been questioned by Hospital management, he understands why there is a concern around his actions.

(iii) Mr Casari has stated that he did not have any intention to use the photograph in an inappropriate manner and had deleted the photograph moments after having taken it.

(iv) Mr Casari signed the NSW Health Code of Conduct Policy in November 1995 when he was first employed.

(v) The reasons given by Mr Casari for taking the photograph of the child are not justified and violate the Code of Conduct Policy PD2005_626 because he has not acted in an appropriate manner (1.2) and the care of a child has been potentially compromised (9.2).

(vi) With the high profile that the Health Service and the public media gives to Child Protection issues it is highly probably that Mr Casari was aware that taking a photograph of a naked child in the Emergency Department without parental consent was inappropriate behaviour.

[50] It was recommended that Mr Casari be dismissed. As conceded for Mr Casari, even if the claimed omissions in the report be accepted as procedural difficulties with the process which led to the decision to dismiss, they do not inevitably lead to the conclusion that the dismissal was unfair.

[51] It is, however, apparent from the process adopted, that all of the relevant information was before the decision maker, Mr Wallace. The letter of dismissal also shows that consideration was given by Mr Wallace to what was said in Mr Casari’s solicitor’s letter of 19 July. That correspondence made Mr Casari's position, as to both issues relied on, quite clear. There was no basis upon which it could be concluded that these ‘subtle failures’ of procedure could lead to the conclusion that the dismissal had been harsh, unreasonable or unjust.

Did the respondent establish that the conduct which led to the dismissal had occurred?

9 Under this heading, her Honour found as follows:

· the evidentiary onus which fell on the respondent to prove the impugned conduct had occurred, was met;

· the appellant was aware that he ought not to have had his phone on while he was working in the Emergency Department;

· the appellant took a photo of an ill, naked, two year old child, admitted to the paediatric section of the emergency department of Liverpool Hospital, without consent. This was a serious breach of the child's privacy and of the duty of care which the respondent had to the child and its parents, a duty which it must observe, through the conduct of its employees;

· despite the fact that the respondent could not establish in its investigation that Mr Casari had any intention of obtaining sexual gratification from the photo, the misconduct which did occur was serious;

· contrary to the appellant's evidence, Ms Kung Lim, Director Nursing and Midwifery Services of Liverpool Hospital, was not in the room where the photo was taken at the time it was taken;

· the child was not being directly attended by an adult when Mr Casari approached and took the photograph;

· Ms Sarah Revis, a Registered Nurse, observed the appellant taking the photo. Ms Revis' evidence was to be preferred to that of the appellant. Contrary to the appellant's evidence he did not see Ms Revis or Ms Lim observe him taking the photo. Contrary to the appellant's evidence the child was not singing and dancing or 'joyous' when approached by Mr Casari;

· The photo in evidence did not corroborate Mr Casari's evidence that he was moved to take the photo because he was so impressed by the child's happy demeanour; he wanted to pay the child some attention and thought that the best way of doing this was to take his photo. There was certainly no suggestion that he tried to show the photo to the child, which might have been expected, if he was truly intending only to pay attention to the child. The upshot of Ms Revis' evidence was that the child smiled at Mr Casari when he motioned him over from where he was playing with the rails of the cot with his back turned to Mr Casari, he was not dancing and singing in the cot, in such a way as to attract Mr Casari’s attention;

· when Mr Casari observed the child and decided to approach to take his photo, he neither sought, nor obtained, the permission of the child's parent, nor did he first ask the nursing staff, who he claimed to have seen on entering the room. On Ms Revis’ evidence, when Mr Casari approached, he did not observe her in the nurses' station and because the doctor and parent were behind the partially closed curtains, attending to the second child, he did not see any adult present;

· wardorderlies had to take particular care with child patients, so that even transferring a child to another ward required the presence of a nurse;

· plain commonsense would have informed anyone that an employee of a hospital taking a photo of a naked, ill child, admitted to the emergency department of a hospital, was entirely inappropriate. That there were other adults in the vicinity and that Mr Casari did not seek to hide what he did, does not alter the fact that to take a photo of any patient, let alone a child, is to take improper advantage of a person admitted to a hospital;

· to take any patient's photo without their prior permission being sought and obtained, is unarguably wrong. A person in that situation is in a particularly vulnerable position, which ought not to be taken advantage of. That is only more so, in the case of a two year old child, who is simply too young to protest, if a stranger seeks to take his or her photograph. The situation is only made worse, when the photo taken is of a naked patient, whether an adult or a child;

· the respondent had signs prominently displayed in the Emergency Department, warning that mobile phones were not to be used. Mr Casari's evidence that he had not seen such signs and that he was not aware that he ought not to have taken photographs with his phone was not accepted. Indeed, finally Mr Casari conceded that he was aware of the policy;

· what Mr Casari did was a serious breach of the child's privacy, as well as the obligation which the respondent had to care for the child, while his father stepped out of the Emergency Department to get a drink. The conduct was never denied and Mr Casari advanced no plausible explanation for what he had done. The photo need not have been taken for sexual gratification, in order for its taking to have involved serious misconduct;

· what Mr Casari did was extraordinary. Even if true, his explanations of his motivation were peculiar and concerned only with himself, not with his work or with the child’s welfare. They could not establish that there had not been serious and wilful misconduct. To the contrary, there was no question that it was as the result of a deliberate decision on Mr Casari’s part, that the photo was taken, even though Mr Casari knew he ought not to have been using his phone in the Emergency Department, let alone for such purpose.

Did Mr Casari establish an innocent motivation for his conduct in these proceedings?

10 Her Honour noted that Mr Casari took the photo, not considering whether his actions were wrong, only because he found the 'joyous' child so fascinating and he wanted to pay it attention. Her Honour stated:

Despite this curious motivation, he left immediately after he had taken the photo, came to the view that he had no use for the photo and deleted it, even before approached by Nurse Revis. When approached by Mr Schembri and Ms Chies, despite his innocent motivation, it then became apparent to him that his motivation could be misunderstood and so he himself raised the issue of child pornography, in order to assure the respondent that this had not been his intent. All he had done was to take a photo of a child who had fascinated him.

11 Schmidt J found this explanation 'rather incredible'. However, her Honour found in any event, even absent an intention of taking the photo for the purpose of sexual gratification, the taking of the photo involved serious misconduct on Mr Casari’s part, which warranted summary dismissal.

Was the decision to dismiss unfair?

12 Schmidt J noted that the appellant's case was that the dismissal was an overreaction by the respondent to a trivial incident, resulting in severe consequences, entirely out of proportion to what had led to the dismissal.

13 Her Honour took into account that the appellant was 64 years old and had been employed for over a decade by the respondent, as a wardorderlie, without real difficulty. Given the nature of the duties he performed with people sick enough to require hospitalisation, her Honour accepted that the appellant had important responsibilities, which he must have performed properly over that time, given that his employment persisted without real difficulty.

14 However, Schmidt J could not accept that the incident leading to the appellant's dismissal was trivial. Nor could her Honour accept that unless it was established that Mr Casari had intended sexual misconduct, in taking the photo in question, the conclusion that the dismissal was harsh and unjust must follow.

15 At [139]-[141] her Honour stated:

[139] Here there is no question that the conduct involved entirely wrong advantage being taken of a vulnerable child, for reasons which were inexplicable, despite the explanation advanced. On any view, what Mr Casari did was entirely for his own purposes. That the child was not harmed, is a pertinent consideration, of course. Yet that does not excuse Mr Casari's conduct, conduct which, in reality, put the respondent in real and serious breach of its obligations to the child and its parents. Given the case advanced and his evidence, Mr Casari still does not accept that conduct for what it was.

[140] The public interest, which must always be considered when the Commission is exercising its discretions under the Act, cannot sensibly permit this conduct being effectively condoned by this Commission, which would unarguably be the result, were the conclusion reached that despite the seriousness of the misconduct, the dismissal was harsh, unjust or unreasonable (see s 146(2) of the Act). I am entirely satisfied that the conduct in question was sufficient to warrant Mr Casari's summary dismissal for misconduct and unable to accept that a basis was established on the evidence, for a finding that the dismissal was harsh, unjust or unreasonable, despite the consequences of the loss of his employment, for Mr Casari.

[141] I finally note that the respondent also addressed submissions going to the impossibility of any order as to reinstatement or re-employment, if I were to come to any contrary view. It is strictly unnecessary for me to consider those submissions, given the conclusions which I have reached. Had I come to any other conclusion, I am satisfied that in the circumstances, there could be no basis upon which it could be concluded that the respondent’s necessary confidence in Mr Casari’s judgment, could be restored. Given his duties with sick patients, who depend on his judgment for their welfare while admitted to the respondent’s hospital, no conclusion other than that an order of either reinstatement or re-employment would not be practicable, is open.

16 Her Honour ordered that the appellant's application for relief be dismissed.

Appeal grounds

17 There were 26 grounds of appeal. Based on how the appellant conducted his case on appeal, the grounds may be grouped as follows, namely, that her Honour erred:

(1) in her findings as to procedural fairness;

(2) in finding that the respondent had established that the conduct complained of had occurred;

(3) in finding that the appellant breached a duty of care owed by the respondent;

(4) in inferring that the appellant had a guilty mind sufficient to establish misconduct; and

(5) in failing to find the appellant's actions were innocent.

Case for the appellant

Procedural fairness

18 The appellant conceded that by reading the documents provided to him, Mr Wallace, the Chief Executive Officer who made the decision to dismiss the appellant, could have discovered that Mr Casari's actions were taken in the open. But it was submitted it was, nevertheless, of significance that the summary of the report given to him by Mr Schembri did not make that point.

19 Mr A G Rogers of counsel for the appellant submitted that it was perfectly probable that Mr Wallace assumed that the appellant's actions were taken surreptitiously and with the worst of intentions. It was asked rhetorically what else would he make of the unqualified proposition in the report supplied to him that:

Mr Casari has admitted on two separate occasions ... that he took a photograph of a naked two year old child without the consent of the parent/carer while he was on duty in the Emergency Department on 6 July 2007.

20 It was submitted that the use of the word 'admitted' coupled with the failure to point out that Mr Casari took the photograph openly and noisily was 'startling'. It was noted that Mr Wallace, without explanation, did not give evidence as to what matters he had regard to in dismissing the appellant.

21 It was further submitted for the appellant that separate findings by her Honour that the photograph was not available to the respondent (and therefore the respondent could not be criticised for not noting that the appellant had not photographed the genitals as he asserted) was not correct. Mr Rogers contended that had the respondent wished to examine the photograph it could easily have done the very thing that was ultimately undertaken - an examination of the mobile telephone of the appellant. The photograph was available to the respondent; it simply did not seek it, according to Mr Rogers.

Whether conduct complained of occurred

22 Schmidt J found that the appellant knew that he should not take photographs. The appellant presumed that was the impugned conduct - taking a photograph knowing that he ought not do so. It was presumed because, according to the appellant, it was not clear from the judgment what the content of the impugned conduct was said to be.

23 Presuming that the impugned conduct was that the appellant knew that he should not take photographs, counsel for the appellant submitted that the problem with that finding was that it was not only contrary to the evidence of the appellant, it was also contrary to the evidence of the respondent's main witness, Ms Revis, who acknowledged that she did not know whether there had been a 'no photographs' policy in existence at the time.

24 It was further submitted that whilst the respondent had tendered evidence of 'no photography' signs, no evidence was led as to when they were erected. The evidence of Mr Casari and Mr Arroyo (another wardorderlie who gave evidence) was that they had no recollection of seeing them. The proper inference was that the signs were not erected at the time.

Breach of duty of care

25 It was submitted her Honour's suggestion that the taking of the photograph constituted a breach of 'the duty of care which the Respondent had to the child and its parents' was a non sequitur; no duty of care was identified. Counsel for the appellant submitted that unless it was said that the duty was a duty not to photograph the child (which would mean that the allegation would prove itself) then no duty of care was anywhere defined.

No guilty mind

26 It was submitted that on no view of the evidence could it be said that Mr Casari had a guilty mind in taking the photograph.

27 Counsel for the appellant submitted that her Honour has approached the matter without regard to strong objective evidence tending to suggest an innocent action by the appellant; that if the appellant's actions were innocent - and the onus lay upon the respondent to establish that they were not - the dismissal was harsh or unfair.

Case for the respondent

No error or failure to give sufficient weight to appellant's alleged innocent motive

28 The respondent identified what it described as two suggestions by counsel for the appellant. First, that Schmidt J failed to properly determine the seriousness of the misconduct by failing to determine the 'mental elements necessary for a finding of serious and wilful misconduct'. Secondly, that a finding of serious and wilful misconduct could only be reached by determining that the appellant had a guilty mind or had a 'sexual motive' in taking the photograph of a naked two year old patient for 'sexual gratification' purposes.

29 In these respects, the respondent submitted that at no material time leading up to the dismissal did it allege that the appellant had a sexual motive for taking the photograph of the naked child patient. On this basis alone, the respondent submitted, it was not necessary for it to seek to prove or for her Honour to conclude, including in her determination of the appellant's claim under s 88 of the Act, whether the appellant took the photograph for the purposes of personal sexual gratification.

30 The respondent noted that in considering what the appellant claimed was his innocent intention, her Honour correctly found 'that the photo need not have been taken for sexual gratification, in order for its taking to have involved serious misconduct.' Further, that her Honour had due regard to objective considerations, including evidence that the appellant's mobile phone should not have been switched on at all, let alone be used to take a photograph to satisfy the appellant's personal interests; that the photograph was taken without consent; and that it was a serious breach of the child's privacy as well as the obligation of the respondent to care for the child. All of these matters, it was submitted, were relevant considerations in assessing the objective seriousness of the misconduct.

31 The respondent further submitted that:

· in rejecting that the appellant had any plausible explanation, her Honour also reasonably concluded that the appellant failed to objectively appreciate the seriousness of his misconduct. This was a relevant consideration in the context of his claim for reinstatement;

· the evidence established that what the appellant did was not for the benefit of the child or in the interests of the respondent. The appellant took the photograph for his own benefit. It was in this context that her Honour determined that the respondent had satisfied the onus of establishing that when it acted to dismiss the appellant, misconduct warranting dismissal had occurred. It was not necessary for her Honour to further determine that the appellant's personal interests in taking the photograph were motivated by 'evil' or 'sexual gratification' purposes;

· the appellant's personal interests in taking the photograph were fundamentally incompatible, or in conflict, with duties owed to his employer and duties of care owed to patients. The appellant's conduct was so inconsistent with these duties and obligations that it destroyed the confidence required to continue the employment relationship.

· the appellant stated that despite the evidence showing his lack of a 'guilty mind' her Honour was 'prepared to infer that there was a mental element sufficient to establish misconduct.' That her Honour so inferred was not correct. This submission of the appellant confuses the notions of motive and wilfulness. To carry out an act deliberately or wilfully is not the same as carrying out an act with an improper motive;

· while it is noted by her Honour that the appellant avoided criminal conviction under the Summary Offences Act 1988 on the charge of filming for indecent purposes, this does not mean that he did not engage in misconduct sufficient to justify summary dismissal. The appellant was not dismissed because of the criminal conduct for which he was charged but because he took a photograph of a naked two year old child without consent. This was serious misconduct not requiring proof of a sexual or indecent intent;

· her Honour correctly took into account the public interest: s 146(2) of the Industrial Relations Act 1996 ('the Act'). It was reasonable for her Honour in the exercise of her discretion to conclude that the Commission could not sensibly permit the appellant's conduct being condoned;

· it would impose an unreasonable burden on employers and the Commission to require proof of an employee's denial of misconduct by any employee merely asserting an innocent state of mind or mens rea not motivated by 'evil' or 'improper purposes';

· it was not the province of the Commission, in the exercise of its broad jurisdiction conferred on it by the Act, to 'take over the functions of the employer in relation to the selection and retention of employees' and the Commission ought 'only intervene when necessary to protect against unjust or unfair exercise of the employer's right of dismissal, a right which is fundamental in the relationship of employer and employee...': In re Barrett and Women's Hospital, Crown Street [1947] AR 565 at 566-567.

Findings as to procedural fairness

32 It was submitted her Honour correctly concluded that on any view the respondent's approach to its investigation was fair:

· her Honour correctly noted that the summary report provided to Mr Wallace was accompanied by more detailed attachments and that these attachments did contain the appellant's explanations that his photograph did not depict the child's 'private parts' and that he took the photo in the open;

· in reaching his decision to terminate the employment of the appellant, Mr Wallace was apprised of all the documents including those where the appellant had asserted that the photograph of the child patient did not include his 'private parts';

· in any event, imperfections in procedure will not necessarily invalidate the respondent's decision to dismiss. It is the seriousness of the allegations, if proven, which will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it;

· the appellant appears to allege that some procedural unfairness arises because '[h]ad the Respondent wished to examine the photograph it could have done the very thing which was ultimately undertaken – an examination of the mobile telephone of the Appellant'. However, the Appellant has conceded by his own admission that he quickly deleted the photograph. The photograph only became available during the first instance proceedings after the conclusion of criminal proceedings and as a result of the NSW Police Service specialist IT forensic experts producing the photograph in the form of the NSW Police Forensic Report. There was no need to examine the mobile telephone as the appellant had disclosed that the photograph was taken. An examination of the telephone would have no bearing on the determination of the appellant's conduct as the act itself was freely admitted by the appellant and witnessed by Ms Sarah Revis;

· it was reasonably open for her Honour to form the view that the photograph did not depict a happy child. Her Honour also appropriately concluded that the photo did not corroborate the appellant's evidence that he was so moved to photograph the child in a state of joy. This after acquired evidence could properly be considered, including in any exercise of discretion to refuse to grant a remedy to the appellant: Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 131 ALR 422 at [434]; Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45 at [75];

· it is entirely reasonable and not an over-reaction for witnesses of the respondent to have been legitimately concerned about the appellant's unauthorised photograph of a naked child patient. Nurse Revis' report of the matter was reasonably noted by her Honour to have been a valid concern responsibly reported by her within her professional duties as a nurse. She was conscious of the Hospital's Code of Conduct and her own responsibilities as a registered nurse with a duty of care to a child.

33 The appellant contended that in relation to determining whether he was afforded procedural fairness when he was dismissed, her Honour erred by having regard to evidence received in the earlier application to extend time. The appellant claimed that this evidence was 'not before the Commission'. However, the respondent submitted there was no error identified by the appellant capable of supporting the allegation that her Honour took into account material not before the Commission. Further, that even if her Honour did have regard to matters before her in the interlocutory proceedings, the evidence was properly before the Commission, within its broad discretion to consider matters within s 88 of the Act, and there was no appealable error.

The conduct found to justify dismissal

34 The respondent referred to the appellant's claim that her Honour's finding that the respondent had established the behaviour complained of had occurred was 'unsatisfactorily vague' and that the judgment did not make clear 'what the content of the impugned conduct was said to be'. In this respect, the respondent submitted:

· the issue that arose in the proceedings was whether the appellant's conduct (which was not in dispute) constituted misconduct, warranting his summary dismissal from the hospital. Her Honour consistently stated her conclusions in clear terms, including for example where Her Honour stated at [129] of the judgment:

I have already explained that in my view, even absent an intention of taking the photo for the purpose of sexual gratification, that involved serious misconduct on Mr Casari's part, which warranted summary dismissal [emphasis added]

and at [136]:

I cannot, however, accept that the incident was trivial, as was argued, for reasons which I have explained. Nor do I accept that unless it is established that Mr Casari had intended sexual misconduct, in taking the photo in question, the conclusion that the dismissal was harsh and unjust must follow.

· It was not the length of time the mobile phone was in use that brought about the complaint the subject of these proceedings. Whether it was only in use for 10 seconds or 2 seconds bore no impact on the fact that the appellant deliberately took a photograph of a sick, naked child was taken without parental consent in circumstances that were inappropriate and fundamentally inconsistent with duties of care and employment obligations;

· the appellant submitted that no evidence was tendered as to when the "no photograph" signs were erected, and that the "proper inference" to be drawn from this is that the signs were not erected at the time the photograph was taken. The fact that the witnesses could not recall the signs does not indicate that the signs were not up at the time the incident occurred. Irrespective of whether or not a "no photograph" sign was in place, the existence of the same does not go to the heart of the issue. Her Honour said in this regard at [110] and [111] of the judgment:

It does not require a written policy to warn employees about every obvious commonsense thing that they should not do, in their employment. In this instance, however, the respondent had signs prominently displayed in the Emergency Department, warning that mobile phones were not to be used

...

Plainly, Mr Casari's phone should not have been switched on while he was at work, because it could interfere with hospital equipment. Further the idea that any hospital employee would take a photo of a naked patient, using a mobile phone, is so unlikely an event, that it cannot have been within the reasonable contemplation of anyone observing Mr Casari's approach to the child.

Findings as to appellant acting contrary to duty of care

35 The respondent submitted that her Honour's finding at [68] that the taking of the photograph constituted a breach of 'the duty of care which the Respondent had to the child and its parents' was reasonably founded, including on settled law that persons engaged in the medical profession owe a duty of care to patients.

36 It was further submitted the appellant's claim that the duty was only sufficiently identified if it was stated to be a 'duty not to photograph the child', was at odds with the courts' broad interpretation of the duty of care owed by hospitals and the medical profession (see Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479; 109 ALR 625) and the recent approach taken by the High Court to take into account a range of factors when considering whether a duty exists, such as the hospital's control over the situation and the corresponding vulnerability of the patient for example: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562.

37 In any event, it was submitted, the case did not turn on whether there was breach of the respondent's duty of care. The case turned on whether the appellant's conduct was misconduct serious enough to warrant summary dismissal.

Costs

38 The respondent reserved its position as to costs if the Full Bench considered, in dismissing the appeal, that the appellant's application was frivolous or vexatious, or was instituted without reasonable cause.

Leave to appeal

39 We have decided to grant leave to appeal in this matter. The issues raised in the appeal are clearly important and it is in the public interest that we deal with them. The appeal raises the question of what constitutes serious and wilful misconduct justifying summary dismissal in the context of child protection.

Consideration

40 Despite what we perceive to have been an undercurrent of suspicion on the part of the respondent that the appellant's motives in taking the photograph of the child were improper, in that there was a sexual element involved, and our view that this suspicion probably contributed to the respondent's decision to summarily dismiss the appellant, the respondent specifically eschewed any reliance on an improper motive on the appellant's part, sexual or otherwise, in taking the decision to dismiss.

41 That then raises the question of what the respondent did rely upon to base its decision to summarily dismiss the appellant. In his Investigation Report dated 19 July 2007, Mr Schembri, the respondent's Acting Director, Human Resources, recommended that the appellant's employment be terminated based on six 'Findings and Conclusions':

(i) Mr Casari has admitted on two separate occasions (on 6 July 2007, alone and on 13 July 2007, in the presence of his HSU support person) that he took a photograph of a naked 2 year old child without the consent of the parent/carer while he was on duty in the Emergency Department on 6 July 2007.

(ii) In the formal fact finding interview on 13 July 2007, Mr Casari has indicated that he did not believe that he was doing anything wrong and that he felt the child needed to be rewarded for his bravery. However, having been questioned by Hospital management, he understands why there is a concern around his actions.

(iii) Mr Casari has stated that he did not have any intention to use the photograph in an inappropriate manner and had deleted the photograph moments after having taken it.

(iv) Mr Casari signed the NSW Health Code of Conduct Policy in November 1995 when he was first employed.

(v) The reasons given by Mr Casari for taking the photograph of the child are not justified and violate the Code of Conduct Policy PD2005_626 because he has not acted in an appropriate manner (1.2) and the care of a child has been potentially compromised (9.2).

(vi) With the high profile that the Health Service and the public media gives to Child Protection issues it is highly probably that Mr Casari was aware that taking a photograph of a naked child in the Emergency Department without parental consent was inappropriate behaviour.

42 The relevant provisions of the Code of Conduct were in the following terms:

1.2 I will undertake all my duties in good faith and in the spirit of honesty, a correct purpose and with the best motives. I will ensure that my actions are appropriate and totally within the area of my authority.

...

9.2 I will follow NSW Health and Health Service policy in relation to the caring treatment of children and young people.

I will report any behaviour or circumstances that leads me to suspect reportable conduct towards a child by another staff member to my supervisor or the designated person within my Health Service.


43 On 30 July 2007, Mr Wallace, the respondent's Chief Executive, wrote to Mr Casari advising him that a recommendation had been received to terminate Mr Casari's employment 'as a result of a serious breach of the NSW Health Code of Conduct'. It was stated by Mr Wallace:

The recommendation was made after an investigation substantiated that you had taken a photograph of a naked 2 year old patient in the Emergency Department, Liverpool Hospital using your mobile phone without consent.

44 Mr Wallace proceeded to advise Mr Casari that his employment was terminated effective from 30 July 2007 'because of serious and wilful misconduct'.

45 In the submissions by the respondent on appeal, the recommendations of Mr Schembri, and the reliance on them by Mr Wallace, were translated as meaning that the respondent dismissed the appellant because he had taken a photograph of a naked two year old child that:

· breached the dignity and privacy of the child,

· was not part of the appellant's duty,

· was done without consent, and

· potentially placed at risk the child's welfare in that the child was sick and vulnerable and was not in the child's interests.

46 Schmidt J understood that the reason for the dismissal was because 'the appellant took a photo of an ill, naked, two year old child, admitted to the paediatric section of the emergency department of Liverpool Hospital, without consent'. Her Honour was satisfied this was a serious breach of the child's privacy and of the duty of care that the respondent had to the child and its parents. Her Honour also found that:

· the appellant knew he should not have had his mobile phone turned on;

· the appellant knew he ought not to have taken the photograph;

· taking such a photo had nothing to do with the appellant's work;

· to take a photo of any patient, let alone a child, is to take improper advantage of a person admitted to a hospital, to take any patient's photo without their prior permission being sought and obtained, is unarguably wrong;

· Mr Casari was aware of the no photographs policy;

· what Mr Casari did was a serious breach of the child's privacy, as well as the obligation which the respondent had to care for the child;

· the evidence shows an inability on Mr Casari's part to accept that what he did was wrong, or even inappropriate;

· even absent an intention of taking the photo for the purpose of sexual gratification, that involved serious misconduct on Mr Casari’s part, which warranted summary dismissal;

· her Honour was unable to come to a positive view as to Mr Casari’s intentions;

· what Mr Casari did was entirely for his own purposes;

· the conduct in question was sufficient to warrant Mr Casari's summary dismissal for misconduct;

· the fact that after the dismissal he was acquitted of a criminal charge in relation to the events here in question, does not establish that the dismissal was 'harsh, unreasonable or unjust';

· subjective considerations did not outweigh the objective seriousness of the misconduct; and

· there could be no basis upon which it could be concluded that the respondent’s necessary confidence in Mr Casari’s judgment, could be restored.

47 It may be distilled from her Honour's reasons that the basis upon which her Honour concluded the dismissal was not harsh, unjust or unreasonable was that:

· the appellant's conduct was a serious breach of the child's privacy;

· the photograph was taken without consent;

· the appellant's conduct was a serious breach of the duty of care that the respondent had to the child and its parents;

· the appellant knew he ought not to have taken the photograph; and

· taking such a photo had nothing to do with the appellant's work.

48 Her Honour said at [129]:

[129] I have already explained that in my view, even absent an intention of taking the photo for the purpose of sexual gratification, that involved serious misconduct on Mr Casari’s part, which warranted summary dismissal. Given the way in which the case was conducted and the difficulties with Mr Casari’s evidence, I find myself unable to come to a positive view as to Mr Casari’s intentions. Nothing finally turns on this because, even were I to accept the view urged for Mr Casari as to his motivation, it could have no impact on the conclusion that there had, in any event, been serious misconduct which entitled the respondent to dismiss Mr Casari as it did.

49 Given that the respondent did not conduct its case on the basis there was any improper motive on the appellant's part in taking the photograph, we consider it was unfair, given it was unnecessary to do so, for her Honour to have left the appellant's intentions to be the subject of speculation. Moreover, for the reasons submitted by the appellant's counsel the weight of the evidence is clearly against the proposition that the appellant was sexually motivated in taking the photograph:

(i) Mr Casari’s photograph of the child was taken in circumstances where Mr Casari was in full view of anybody in the area;

(ii) Mr Casari was obvious in his attempts to attract the attention of the child. Both he and Ms Revis gave evidence that he 'called' the child over to him. He was not surreptitious in attempting to obtain the child's attention. If anyone was around, they were likely to hear him;

(iii) Ms Revis gave evidence that Mr Casari held the mobile telephone prominently in front of him making no effort to hide the fact that he was taking a photograph;

(iv) Mr Casari says that he was aware that he was being observed. Ms Revis, while uncertain whether Mr Casari saw her, gave evidence to say that he did not look around to check if he was being observed, as might a person engaging in misbehaviour;

(v) Ms Revis gave evidence that when taking the photograph Mr Casari did not appear to be hurrying, attempting to get in and get out before he was discovered;

(vi) when first asked if he had taken a photograph, Mr Casari responded in the affirmative and volunteered that 'It was a naked child, he was happy...'

(vii) subsequently, as Mr Schembri accepted in evidence, when interviewed about the matter, Mr Casari was open and of assistance;

(viii) Mr Casari did not attempt to hide or secrete the mobile telephone after the event. He willingly produced it to those investigating the matter; and

(ix) the photograph did not show the child's 'private parts', only the upper half of his body. Much of the discourse in these proceedings and the first instance proceedings involved a reference to the photograph of a 'naked child' which had the real potential to create a wrong impression about the image depicted.

50 It follows, therefore, that the task facing the Full Bench is to determine whether Schmidt J erred in finding that the dismissal was not harsh, unjust or unreasonable in circumstances where, having regard to the respondent's reasons for the dismissal and her Honour's findings in that respect, the basis of the dismissal was that the appellant took a photograph of a naked two year old child patient in a hospital and in doing so:

(i) the child's privacy was breached;

(ii) the photograph was taken without consent;

(iii) the taking of the photograph was outside the scope of the appellant's employment;

(iv) the appellant knew he ought not to have taken the photograph;

(v) it was held at first instance the appellant's conduct was a serious breach of the duty of care that the respondent had to the child and its parents; and

(vi) the taking of the photograph potentially placed at risk the child's welfare in that the child was sick and vulnerable.

51 The Full Bench must also have regard to relevant subjective considerations including that the appellant was 64 years old; the appellant had been employed by the respondent for just under 12 years without any 'real difficulty' ever arising regarding his employment; and that the summary dismissal meant the prospect of the appellant continuing to receive superannuation guarantee contributions from his employer until he chose to retire and any growth in benefits under the terms of the applicable superannuation scheme (First State Super) was peremptorily closed off.

52 Returning to the six matters identified in [50] above and dealing with the sixth matter first, this seemed to be directed to the prospect of the photograph being transmitted by the appellant for improper sexual purposes. However, given the respondent did not rely on any improper motive by the appellant, there was no evidence of the photograph having been transmitted, or any attempt being made to transmit it and the photograph was deleted shortly after it was taken, we do not consider much weight should be placed on this issue. That is not to say we condone the taking of the photograph, as will become clear.

53 The fifth matter concerned her Honour's finding of a duty of care. The respondent submitted in that respect that her Honour's finding was reasonably founded, including on settled law that persons engaged in the medical profession owe a duty of care to patients: Roe v Minister of Health [1954] 2 QB 66; Thomsen v Davison [1975] Qd R 93; Joseph Brant Memorial Hospital v Koziol (1977) 77 DLR (3d) 161; Hotson v Fitzgerald [1985] 1 WLR 1036; Sidaway v Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871; 1 All ER 643.

54 There would not appear to be much doubt that the respondent owed the child a duty of care as its patient in the Liverpool Hospital, and a particular duty of care given the patient was a child: see Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 686-7 per Mason J:

The liability of a hospital arises out of its understanding an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care...

The hospital undertakes the care, supervision or control of patients who are in special need of care. ... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision and control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.

55 The taking of the photograph was not done with any evil or improper intent and no harm was done to the child. It cannot, therefore, be concluded that in those respects there was a breach of the duty of care. However, taking the photograph clearly had the potential to compromise the respondent by leaving it open to the criticism that it failed to ensure the child's welfare was not placed at risk by allowing a situation where an employee of the hospital could take an unauthorised photograph of the child. To this extent it may be concluded that the appellant breached his duty of fidelity to his employer. However, the infringement is not as severe as described in the respondent's submissions.

56 The fourth matter was that the appellant knew he ought not to have taken the photograph. The appellant admitted that he knew that he was not to have his mobile phone on in the area. It is much less clear on the evidence that the appellant knew he was not permitted to take photographs. However, given he was aware that he should not have had his mobile phone on (whether it was on at the time he came into the area where the child was located or whether he switched the phone on in order to take the photograph) the appellant knowingly breached a rule of the hospital. As a single factor, however, this matter fell well short of a failure warranting dismissal.

57 The first, second and third matters identified in [50] above were clearly made out on the evidence and need to be considered in conjunction with the fourth and fifth matters. Having regard to the decision at first instance we will firstly examine whether these factors, when properly analysed, constituted sufficient grounds to summarily dismiss the appellant. In doing so we would emphasise, however, that the statutory test which her Honour was required to apply was not whether the dismissal was lawful but whether the dismissal was harsh, unjust or unreasonable: Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 at 676; 93 IR 1 at 25-26; Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [15] and Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380 at [28].

58 The relevant award governing the appellant's conditions of employment was the Health Employees' Conditions of Employment (State) Award. That Award relevantly provided in cl 20(ii):

For other employees, one week's notice of termination of employment shall be given by the employer or the employee, respectively, but when the conduct of an employee justifies instant dismissal, such notice of termination of employment shall not apply; provided that should an employee fail to give the prescribed notice, such employee shall be liable to the forfeiture of one week's wages. Where the services of an employee are terminated without due notice he/she shall be paid one week's salary in lieu thereof.

59 There is a useful summary of the law relating to summary, or instant, dismissal, and its application, in the Full Bench decision of Budlong at [86] to [103]. In that decision it was stated that:

· To satisfy the Commission that it was justified in summarily dismissing the appellant, the respondent must show that the appellant breached a term of his contract of employment and that that breach was such as to indicate a rejection or repudiation of the contract: see North v Television Corp Ltd (1976) 11 ALR 599 at 609 ([90]).

· There is no fixed rule of law defining the degree of misconduct that will justify summary dismissal ([91]).

· A single act of disobedience or misconduct such as in this case can justify dismissal only if it is of a nature which goes to show (in effect) that the employee is repudiating, or deliberately flouting, the contract or one of its essential conditions ([92]).

· In Adami v Maison De Luxe Limited [1924 HCA 45; (1924) 35 CLR 143 at 155 Gavan Duffy and Starke JJ considered that to justify summary dismissal the disobedience of the employee must be such as to amount to a repudiation, or sufficiently serious to allow discharge of the contract of employment ([94]).

· Kirby J stated in Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 at [51]:

It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily.... ([95]).

60 Other relevant authorities include Bruce v AWB Ltd [2000] FCA 594; (2000) 100 IR 129 at 140 where Sundberg J observed that to stand as a justifiable ground of summary dismissal the conduct of the employee must 'constitute a repudiation of the contract or one of its essential conditions'. Similarly, in Pepper v Webb [1969] 1 WLR 514 at 517 Harman LJ stated, 'Now what will justify an instant dismissal? - something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract.' In Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 411, Einstein J stated at [448]:

Hence at common law a right of summary dismissal will only accrue to an employer in situations wherein the conduct of the employee has been so inconsistent with his or her specific conditions of service that it has become impossible for the relationship to continue upon its former bases. Such impossibility would arise if the employee's conduct has destroyed all the necessary confidence subsisting between the parties to an employment relationship, where the essential conditions of service have been disregarded or where an intention no longer to be bound has been objectively evinced.

61 Relevantly, Einstein J also observed in Randall at [449]:

As noted above, the most important consequence of the modern shift towards the application of general principles of contract law to the summary dismissal context is that the conduct of the employee must be viewed in the context of the employment relationship as a whole. Rather than merely quantify the 'seriousness' or otherwise of the misconduct, the question must be considered in light of the employee's length of service, their demonstrated ability and their standards of prior conduct. Thus in Sheldrick v WT Partnership (Aust) Pty Limited & Ors (1998) 89 IR 206 (FCA), an engineer employed by the respondent broke into a colleagues office by removing a pane of glass and inspected confidential memoranda in the course of an ongoing dispute as to management structures. While Einfeld J was of no compunction (at 235) in deeming such behaviour "thoughtless, immature and unwise", it was "certainly not grounds for the summary dismissal of a dedicated, loyal and longstanding employee who had proved his commitment to his employer by relocating to Asia from Australia with his entire family and agreeing to remain there for a significant period."

62 In Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 Gillard J summarised the law relating to summary dismissal at [250]:

The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.

63 We will apply Budlong but expressly accept what Gillard J said in Rankin. This represents a correct précis of the contemporary law relating to summary dismissal. The first question, in this respect, therefore, is whether the appellant's conduct was a breach of his contract of employment. If so, the second question is whether the breach was of a serious nature involving a repudiation of the essential obligations under the contract or actual conduct that was repugnant to the relationship of employer-employee. The third matter that needs to be considered is the effect of the summary dismissal having regard to such factors as the appellant's age, the likelihood of him gaining other employment, his length of service and his standard of prior conduct.

64 As we earlier found, the conduct that must be examined is constituted by: a breach of the child's privacy; the taking of the photograph of a naked child within the hospital without consent; taking a photograph within the hospital when it was not part of the duties of the appellant; placing the respondent in a position whereby it could be criticised for failing to ensure the child's welfare was not placed at risk by allowing a situation where an employee of the hospital could take an unauthorised photograph of the child; and taking a photograph with a mobile phone in circumstances where the appellant knew he should not have the phone switched on.

65 There was no express term in the appellant's contract of employment prohibiting him from taking a photograph of a patient in the hospital. The common law imposes however, a duty of fidelity and good faith on an employee and this duty is an implied term of the contract: Robb v Green [1895] 2 QB 315 at 317 per Lord Esher MR. The duty would encompass what was described in Blyth Chemicals v Bushnell [1933] HCA 8; (1933) 49 CLR 66 by Dixon and McTiernan JJ at 81-82:

Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.

66 It was not compatible with the appellant's duty to his employer to take the photograph of the child; it was acting outside the scope of what the appellant had been employed to do and was in direct conflict with an undoubted obligation on the appellant's employer to ensure the child's privacy was not invaded and that photographs of the child were not taken without the parent's permission.

67 Whilst the appellant's conduct may, strictly speaking, be regarded, as a failure of the duty of fidelity, absent any improper motive on the appellant's part we have some difficulty in coming to the conclusion that his acts struck at the heart of the employment contract or were so repugnant to his relationship with the respondent that it warranted summary dismissal. The taking of the photograph was a foolish act and deserving of sanction; Ms Revis was entirely correct in reporting the incident. The respondent was also correct in immediately carrying out an investigation of the incident. But on the evidence, whilst relatively serious, it was an isolated incident done with innocent intent that caused no harm to the child or to the respondent, and in those circumstances did not constitute a proper basis for summary dismissal. We should add here that the reason the child was naked was consequential on the treatment he was receiving.

68 We are unable to accept that the appellant engaged in conduct that was 'so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment' (North per Smithers and Evatt JJ), or the conduct of the appellant was such that the respondent was entitled to conclude that the appellant no longer intended to be bound by the provisions of his contract of employment, or that the appellant's conduct may properly be regarded as 'deliberately flouting one of the essential conditions of the contract' (Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 per Lord Evershed MR).

69 Further, summary dismissal for taking the photograph of a naked two year old child, without any further explanation of the circumstances, inevitably carries with it a very damaging stigma. So bad would be the stain on his character it is doubtful the appellant could find reasonable employment of any kind, especially given his age.

70 In this respect, we refer to the observations of the Full Bench in Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [5] as follows:

We were reminded of, and accept as supportive (but not determinative) of leave to appeal, the general industrial principle, as repeated by Dey J in Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 at 1049, "that the interests of employees are an important aspect of public interest". The same point was stated in this way, and with which we agree, by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 84:

As was the case in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, the position here is that the company has made an allegation of misconduct in summarily dismissing Mr Parsonage which could well, if left unproven, nevertheless be a stigma on Mr Parsonage which may well have implications for his future employment prospects. If misconduct indeed not be made out, then, on the approach I take, a very serious allegation against Mr Parsonage has been found to have no substance; if that be the result, then, in my view, that finding should be clearly made and published. So too, it will represent a very compelling consideration for restoring the employment relationship otherwise unlawfully severed.

71 On balance, we find that the dismissal of the appellant was harsh, unjust and unreasonable because the summary dismissal was wrongful and carried with it (in the circumstances of the appellant's removal) an unjustifiable stigma; the seriousness of the conduct engaged in was less than conceptualised by the respondent (or in the first instance decision) and there were significant subjective mitigating factors in favour of the appellant, which indicate that dismissal was too harsh a sanction.

72 The question arises as to what may be an appropriate remedy. Reinstatement is the primary remedy: Burge at [34]; Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [125]; Plummer v Stannard Bros Launch Service [2005] NSWIRComm 301; (2005) 145 IR 111 at [115]. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94].

73 We have given earnest consideration to whether reinstatement is impracticable and, in that respect, to such authorities as Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192, Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 at 341-342, Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 and to the approach taken in Budlong.

74 Whilst we have determined that the appellant's misconduct was not such as to strike at the heart of the employment contract it was, nevertheless, serious. There has been a loss of trust and confidence in the appellant by his employer. By taking the extreme step of summary dismissal the respondent has declared it has no confidence in the appellant's ability to maintain a proper standard of conduct in an environment where the employer has a duty to ensure that hospital staff, including wardorderlies, act with sensitivity and with the utmost respect for the privacy of the sick. Wardorderlies come into daily contact with citizens in a vulnerable state due to their illness or injury. The taking of photographs of such persons without permission, especially sick children, and regardless of motive, is unacceptable conduct and the employer is plainly of the view that it does not have the necessary confidence in the appellant that there will not be a recurrence of the misconduct. We consider that reinstatement for the purpose of future employment with the employer is impracticable.

75 Nevertheless, the appellant has suffered significant humiliation and distress caused by the summary dismissal which, in the circumstances, was not justified. We have decided that the appellant shall be re-employed from the date of this decision in his former position with back payment to the date of his dismissal, but only for the purposes of the appellant affecting a resignation from employment. Thus, the re-employment shall be subject to the appellant resigning from his employment effective from the day immediately following the date of this decision. For the period from 30 July 2007 to the day immediately following the date of this decision, the appellant shall receive wages and other relevant benefits that would have accrued and which he would have received had he not been summarily dismissed on 30 July 2007. We note that Mr Casari has not worked since he was dismissed.

Orders

76 The Full Bench makes the following orders:

(1) Leave to appeal is granted.

(2) The appeal is upheld.

(3) The decision and orders of Schmidt J in Matter No IRC 1449 of 2007 are set aside.

(4) The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions:

(i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision;

(ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed.

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LAST UPDATED:
2 July 2009