White v Queensland[2017] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

The application

1. [1]
   Mr Allan Alfred White ("the applicant") was employed by the State of Queensland (Central Queensland Hospital and Health Service) ("the respondent") from 17 July 2003 initially as a casual employee and later as an Enrolled Nurse in the Surgical Unit at the Rockhampton Hospital.

2. [2]
   The applicant's employment was regulated by the Nurses and Midwives (Queensland Health) Certified Agreement (EB 8) 2012, the Queensland Health Nurses and Midwives Award - State 2011 and the Public Service Act 2008 (Qld).

3. [3]
   On 27 June 2016 the applicant's employment was terminated without notice for misconduct.

4. [4]
   On 13 July 2016 an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the "IR Act") was filed by the applicant seeking the following orders:

1. (A)
   Reinstatement of the Employee in his former position (or as nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 28/06/2016 and the date of reinstatement; or

2. (B)
   Re-employment in another position that the employer has available and that the Commission considers suitable.

3. (C)
   However, if the Commission considers re-instatement or re-employment would be impractical, the Applicant seeks that the Commission make an order that the employer pay the Employee an amount of compensation the Commission considers appropriate.

4. (D)
   The Respondent backpay the employee from the date of his termination 28 June 2016.

5. (E)
   The Employee does not lose continuity of his employment.

6. (F)
   That the decision to terminate the Employee's employment be stayed until such time that the appeal is heard.

7. (G)
   The Employee continue to be suspended on pay until such time that the appeal is heard.

Onus of proof

5. [5]
   Prima facie, it is accepted that an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.^[1] However, when considering the appropriate onus of proof to be applied in cases involving a dismissal on grounds which allege serious or criminal misconduct, the onus of proof shifts from the applicant employee to the respondent employer.

6. [6]
   In considering the appropriate standard of proof to be applied, Chief Commissioner Hall (as his Honour then was) in Stark v P & O Resorts (Heron Island) wrote:

  "For myself, I would add, though it is not a proposition which is necessary to the decision in this matter, that whomsoever it is who the ultimate onus of proof in an unfair dismissal case, on a grave allegation of criminal misconduct the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and M v M (1988) 166 CLR 69 at 76 to 77 must be applied, compare Byrne and Another v Australian Airlines Ltd. (1992)192 per Hill J."^[2]

7. [7]
   Earlier in the same decision, Chief Commissioner Hall stated:

  "Where, as here, an application under s. 174 is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission; Compare Hooper v Bi - Lo Pty Ltd (1992) 59 SAIR 342 at 349 to 354."^[3]

 Background to the termination

8. [8]
   On 28 October 2015, the applicant was working in the surgical ward of the Rockhampton Hospital. A patient had not long returned to the surgical ward post-washout of his knee. The applicant performed post-operative checks and observations. As part of the post-operative care, the patient's VAC dressing, Belovac drain and Richards Splint required checking. The applicant's evidence was that he would ordinarily check the VAC dressing by running his fingers and hand along the tube from the point of attachment of the patient to the machine.^[4] In checking the Belovac drain, the applicant would run his fingers and hand along the tubing, using a closed hand with thumb and forefinger guiding along the tube from the point of attachment to the patient to the machine.^[5] The Richards Splint was also visually checked from the top of the leg or thigh due to this being the thickest area of the leg and prone to movement. The patient's calf is moved to make any adjustments to the straps that may be required.^[6]

9. [9]
   The applicants approach to the post-operative checks and observations was not challenged.

10. [10]
    The patient approached Ms Catherine Jacques (RN Jacques), a Registered Nurse in the Surgical Ward of the Rockhampton Hospital and said words to the effect of: "…has anyone else complained about that nurse who was just in here?".^[7]  Ms Jacques said that the patient "…felt that he was fiddling with the drainage tubs in the groin area for a bit longer than he felt was necessary."^[8]

11. [11]
    RN Jacques formed the view that the patient had lost confidence in the applicant and she determined that he ought to be removed from directly caring for him.^[9]

12. [12]
    At no time during the remainder of the shift did the patient continue any conversation about the applicant. Ms Jacques did not feel it necessary to record or escalate the matter as the information provided by the patient did not cause her concerns about the manner in which the applicant provided care to him.^[10]

13. [13]
    On 30 November 2015 Dr Lynette Jamieson, a Nurse Unit Manager at Rockhampton Hospital received a copy of an anonymous complaint concerning the applicant. The complaint was in the form of a word-processed letter and was unsigned left in a feedback box at the hospital. Later that day a meeting was held between Dr Jamieson, Mr Andrew Jarvis, the Hospital's Nursing Director, Mr Daniel Bergin, the Executive Director of the Hospital, and Ms Cheryl Ireland, the Senior Workplace Relations Advisor, to discuss how to deal with the complaint. It was agreed that Dr Jamieson would undertake post discharge calls to patients of the Surgical Unit around the relevant date of 28 October 2015 to ascertain if any issues were raised consistent with the anonymous complaint. ^[11]

14. [14]
    On 4 December 2015, Dr Jamieson telephoned a patient who had been in the surgical unit on 28 October 2015. In the course of the telephone conversation the patient raised some issues which corresponded with the anonymous complaint. The patient confirmed to Dr Jamieson that he was the anonymous complainant. Whilst the patient agreed to be identified as the complainant he advised that he did not want to be contacted directly about the investigation or outcome.^[12]

15. [15]
    On 7 December 2015 the applicant was suspended from duty on full pay, at that time he was informed that an allegation had been made against him but the nature of the allegations were not outlined.

16. [16]
    Mr Daniel Bergin, Acting Executive Director Rockhampton Hospital, considered that there may be grounds on which the applicant could be disciplined.^[13]  By letter dated 21 December 2015 the applicant was required to show cause in relation to the following allegation:

"It is alleged that on the afternoon of 28 October 2015 you inappropriately touched patient UR 165423"

17. [17]
    The applicant was allowed a 14 calendar day window in which to respond to the allegation and show cause as to why he should not be disciplined in relation the allegation.

18. [18]
    The particulars of the allegation were as follows:

1.  On 19 November 2015 an email was sent to the general Practice Liaison Officer, Ms Hannah Nugent that a patient of the practice had revealed being "inappropriately handled (touched) by a staff member in the surgical ward".

2.      On the 30 November 2015 an anonymous complaint dated 26 November 2015 was received which states that you proceeded to run your hand up the inside of a patient's leg and touched the patient "in an inappropriate place"

3. Within the anonymous complaint the patient advises that he "alerted another nurse of what had happened".

4. On 4 December 2015 during a post  discharge phone call to patient UR 165423, the patient advised that they had been inappropriate touched by a male nurse providing care on 28 October 2015. During this telephone discussion, Patient UR 165423 further advised that he had submitted an anonymous complaint dated 26 November 2015 regarding the incident of inappropriate touching.

5. Having review the patient allocation for 28 October 2015, it was identified that Registered Nurse (RN) Catherine Jacques was the nurse to whom patient UR 165423 had alerted to the incident at the time.

6. RN Jacques was interviewed by Nurse Unit Manager Dr Lyn Jamieson on 10 December 2015

7. RN Jacques advised that patient UR 165423 made a complaint to her on 28 October 2015, outlining that EN Alan White "had inappropriately touched his [the patient's] genitals" when EN White had been "fiddling with the VAC tubing" when in relation to the complaint and stated on duty assigned to patient UR 165423)^[14]  [All errors in original]

19. [19]
    In a letter dated 25 January 2016 the Queensland Nurses' Union ("the QNU") responded on the applicant's behalf. The applicant, in that letter, denied that he had inappropriately touched the patient. The applicant's response was in the following terms:

1. I deny that I inappropriately touched this patient in attending to his cares, as alleged.

2. I have some recollection of this patient. I recall that in attending to this patient, I had performed general post-operative checks and observations (blood pressure, pulse, respiration rate, oxygen saturation, temperature, etc.) as the patient had not long returned to ward post wash out of his knee at 1245hrs on 28/10/15.

3. This patient was slightly Tachycardic at 100, as per my progress notes, 28/10/15 @ 2210hrs, nil concerns voiced.

4. In this process of post-operative checks, I would have also checked that the Vac dressing was patent and working, no kinks or obstructions in the line etc.; and that the dressing was well sealed, to ensure that there were no problems with the Vac suction line.

5. I followed the line from the machine back to the dressing site across this patient's thighs as documented in the statement from Cath Jacques RN.

6. As stated in the File note provided of a conversation between Dr Lynn Jamieson and Ms Cath Jacques RN, I was tracing the Vac tubing which had run across the patient's thighs.

7. The checking of Vac tubing, Vac canister, and wound ensure that the machine is working correctly to enhance patient wound healing outcomes.

8. As this patient also had a Belovac drain and Richards splint, I also would have also checked these to ensure that they were p, volume of blood loss etc., and correctly placed.

9. In the process of checking the Richards splint I would also have been checking the splint high in the thigh area of the patient as these splints sit from the high thigh area to lower calf area to ensure knee stability.

10. At no time was any inappropriate contact intended with this patient, I was simply attending to the basic requirement of this patient post operatively as any good thorough nurse would do.

11. I never attend this patient again for this shift as my co-worker, Cath Jacques had spoken with me in the treatment room, stating that this patient had spoken with her and had complained about my cares.

12. I do not recall Cath saying to me that the patient had stated that I had inappropriately touched him, however I do recall Cath saying to me that he was a strange fellow, or words to that effect, and that Cath would attend to him for this shift. I do recall Cath saying that she had told the patient that I was a good nurse.

13. At no time did the patient express any concerns to myself per cares given.^[15]

20. [20]
    Mr Bergin, responded to the applicant's letter on 11 April 2016. In that letter he included additional information provided by the patient and then afforded the applicant an opportunity to respond to the further information collected by the respondent:

"On 07 March 2016, Ms Lynn Jamieson, Nurse Unit Manager, Surgical Ward, spoke to the patient. During this discussion the patient advised that "the tubing from his operated knee went across the other knee to the machine on the side of the bed (opposite to his operated knee)". The patient also advised that you "used an open hand (palm of hand facing down) to brush against his penis and testicles." The patient further advised that "your hand was under the purple hospital gown he was wearing" and that "the gown was not moved aside to allow the nurse to make a visual check of the upper thigh/groin area". A record of this discussion with the patient is attached.

  The patient's account is inconsistent with your version of events, in particular:

• The patient maintains you inappropriately touched his genitals;
• The patient confirms (consistent with his complaint of 26-11-15) that the VAC tubing was across his knees, and nowhere near his groin area;
• You explain that you "would also have been checking the splint high in the thigh area of the patient, however the patient says his gown was not moved aside for the purpose of any visual check; and
• The patient says your hand was under the gown he was wearing."^[16]

21. [21]
    The QNU responded to Mr Bergin's letter on 22 April 2016. In their letter, the QNU drew Mr Bergin's attention to Briginshaw v Briginshaw^[17] and flagged that it was:

"…concerned that it appears that in your consideration of issues arising from Mr White's response, you are drawing conclusions that are inconsistent with the standard of proof required to meet the reasonably high degree of probability to substantiate an allegation of this nature."^[18]

22. [22]
    On 24 May 2016, Ms Jo Whitehead, Acting Health Service Chief Executive, wrote to Mr White informing him that the allegation against him had been substantiated, that he was guilty of misconduct and that the proposed penalty was the termination of his employment. In her correspondence, Ms Whitehead relatively states:

"In all the circumstances, I find the patient's version of events to be credible taking into account that your interaction with him was of such great concern that he immediately informed RN Jacques. At a later date the patient raised concerns with the Nurse providing post-operative care through the office of his general practitioner, and also lodged an anonymous complaint with the Hospital. The patient grasped how serious the allegation was and at no time wavered in his statement or the information provided surrounding his concerns. The patient sought no outcome, other than to ensure the matter was dealt with correctly so it would not happen to others. 

…

Further, I have some concerns about the credibility of your version of events. As a Nurse you have a responsibility to promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care. Whilst you say you do not recall RN Jacques telling you that the patient had raised specific concerns, you do recall the patient "complained about my cares". It is therefore unclear to me why you did not hesitate relinquishing the care of the patient to RN Jacques, as opposed to seeking to resolve the issues at the time. This would have been in line with your responsibility to maintain and build on the community's trust and confidence in the nursing profession…. I have not been provided any information or record of any discussion you had with your Line Manager attempting to resolve the issues raised by the patient as communicated to you by RN Jacques at the time they were raised. If, as she recalls, RN Jacques did inform you of the nature of the patient's complaint, I do not find it credible that you would fail to recall such a serious allegation. Alternatively, if she did not inform you of the nature of the complaint, I find it improbable that you would not have enquired about this.

…

I am aware also that four similar allegations were made against you in 2008. Whilst, as I understand it, those allegations were ultimately found to be unsubstantiated and no disciplinary action was taken, the similar nature of those allegations is of great concern to me and potentially relevant to the disciplinary outcome in this case. Your response is sought in that regard. "^[19]

23. [23]
    The QNU responded to Ms Whitehead's letter on 7 June 2016. The QNU response relevantly states as follows:

"In your correspondence, the QNU notes that you have entirely rejected Mr White's response to the allegation and instead, accepted the complainant as a credible witness. The QNU submits that it remains [sic] there is no objective to substantiate the allegation made against MR White and it is unfair that this subjective finding is now the basis for the proposed penalty of termination.

The impact of this allegation made against Mr White in the small community of Rockhampton has been extremely stressful. Mr White advises he had experienced ongoing adverse treatment as a result of his sexual orientation and that homophobia is still an ongoing contentious concern in the community. Mr White is concerned that the complaint has arise in this context, which is completely out of his control.

Nevertheless, Mr White has reflected on the complaint and is remorseful that the complainant has perceived his actioned within his cares provided to be misconstrued. …. Mr White advised he would also be more mindful that nursing remains an industry that is predominately female and there still remains differing perceptions and views on male nurses."^[20]

24. [24]
    The QNU also outlined that terminating the applicant's employment would have a significant impact on his dependant family.

25. [25]
    On 27 June 2016, Ms Whitehead again wrote to the applicant and informed him that his employment would be terminated with immediate effect.

Statutory Provisions

26. [26]
    Section 73 of the Act relevantly provides:

  "73  When is a dismissal unfair

1. (1)
   A dismissal is unfair if it is–

    (a)  harsh, unjust or unreasonable; …"^[21]

27. [27]
    Section 77 of the IR Act provides that the Commission must consider certain matters in deciding on an application such as this:

"77  Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

1. (a)
   whether the employee was notified of the reason for dismissal; and

2. (b)
   whether the dismissal related to -

1. (i)
   the operational requirements of the employer's undertaking, establishment or service; or

2. (ii)
   the employee's conduct, capacity or performance; and

3. (c)
   if the dismissal relates to the employee's conduct, capacity or performance -

1. (i)
   whether the employee had been warned about the conduct, capacity or performance; or

2. (ii)
   whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and

4. (d)
   any other matters the commission considers relevant."

 Was the Dismissal Unfair?

28. [28]
    The phrase 'harsh, unjust or unreasonable' was considered by the High Court in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd ^[22] ('Byrne') where McHugh and Gummow JJ wrote:

"In Bostik (Aust) Pty Ltd v Gorgevski (No 1), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

'These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive.'"^[23][Citation omitted]

29. [29]
    In Byrne, McHugh and Gummow JJ also observed:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employer or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."^[24]

30. [30]
    Having weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the IR Act, I have, for the reasons which follow, come to the conclusion that the applicant's dismissal was harsh, unjust or unreasonable.  The dismissal was therefore "unfair" within the meaning of s 73 of the IR Act.

 Matters to be considered in deciding an application

31. [31]
    Section 77 of the IR Act provides that the Commission must consider certain matters when determining an application such as this:

1. (a)
   Was the applicant notified of the reason for his dismissal?

32. [32]
    In considering the totality of the evidence before the Commission, in particular the termination letter of 27 June 2016 as to the reason for the applicant's dismissal, the answer to the question "Was the applicant notified of the reason for his dismissal?" must be "No."

33. [33]
    The termination letter of 27 June 2016 under the hand of Ms Whitehead concludes that the allegation that the applicant inappropriately touched the patient on the afternoon of 28 October 2015 was proved.

34. [34]
    I accept the submissions of the applicant that Ms Whitehead's letter is inadequate bearing in mind that the two show cause letters differed in their particulars to support the allegation.

35. [35]
    Ms Whitehead does not articulate the basis upon which she concluded that the applicant was guilty of misconduct under s 187(1)(b) of the Public Service Act 2008. In that regard, at the very least, Ms Whitehead should have given a brief overview of the conduct which supported her conclusion that the applicant engaged in inappropriate or improper conduct in an official capacity.

36. [36]
    Section 188 of the Public Service Act 2008 affords the decision maker, in disciplining a public service employee a range of disciplinary options, one of which is dismissal. Ms Whitehead advised the applicant that:

"…I have decided the appropriate disciplinary action to impose in the circumstances is the termination of your employment with immediate effect. You will be paid your outstanding industrial entitlements to the date of this letter."

37. [37]
    Whilst Ms Whitehead acknowledged that termination would have serious consequences for the applicant and rejected the submissions of the QNU regarding penalty, she did not, in my view, adequately address the other penalty options and outline why she choose termination as the appropriate outcome. In that respect, the reasons for dismissal were also inadequate.

2. (b)
   Did the dismissal relate to operational requirements or the applicant's conduct, capacity or performance?

38. [38]
    It is not in dispute between the parties that the dismissal did not relate to operational requirements of the respondent but rather to the applicant's conduct, capacity or performance.  I must therefore consider the matters identified in s 77(c) of the Act.

3. (c)
   Had the applicant been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance?

39. [39]
    The applicant submitted that the show cause process was procedurally deficient. It was contended that the process was deficient in that:

1. When Dr Jamieson contacted the patient on 4 December 2015 she did so under the guise of a post-discharge phone call rather than advising the patient that she had been tasked with the role of investigating his complaint;
2. When Dr Jamieson spoke to the patient on 4 December 2015 she did not take a fulsome and detailed statement from the patient;
3. Dr Jamieson did not provide a copy of the file note to the patient for him to confirm its accuracy or otherwise;
4. Dr Jamieson spoke to RN Jacques on 10 December 2015 for the purpose of discussing the patient "complaint" without providing her with a copy of the patient notes and did not subsequently provide her with a copy of the file note taken to confirm its accuracy or otherwise;
5. Dr Jamieson contacted the patient, against his wishes, some three months later, on 7 March 2016 to "ask some very personal questions" and it was in this environment that the patient provided additional evidence that he had not previously provided;
6. Dr Jamieson did not speak to the applicant in the course of the "investigation" nor seek his response to the matters raised by other "witnesses";
7. Dr Jamieson did not speak to RN Jacques following the conversation with the patient on 7 March 2016 to seek her response to inconsistencies with the account given by the patient;
8. Dr Jamieson did not analyse the inconsistencies in the information provided by the various complainants in written form;
9. Dr Jamieson did not produce a written investigation report, findings or any written document which analysed the information that she gathered in the course of the "investigation".

40. [40]
    The evidence before the Commission was that no formal investigation had been commenced and indeed no investigation report was produced.^[25] Further, the applicant was suspended and the show cause process commenced prior to the gathering of all the relevant information.

41. [41]
    The evidence of Dr Jamieson was that the file notes were taken for the purpose of conducting a post-discharge follow-up and not taken or produced for the purpose of a formal disciplinary investigation. In cross-examination, Dr Jamieson was asked:

MS HARTIGAN: Dr Jamieson, you stated in your affidavit that you’re not a trained investigator?

DR JAMIESON: No.  That’s right.

MS HARTIGAN: But you say that during the course of your employment you’ve had experience in investigating and dealing with patient complaints?

DR JAMIESON: Yes.

MS HARTIGAN: And with respect to this matter, is that what you were doing?  You were investigating a patient complaint that had been received by the hospital?

DR JAMIESON: I wasn’t investigating.  I was asking a number of questions.  Firstly, I was doing a post-discharge phone call.  That wasn’t an investigation of a complaint at all.

MS HARTIGAN: All right. Well, I’ll stop you there.  So your evidence is that you weren’t investigating the matter?

DR JAMIESON: No.

42. [42]
    It is clear from the evidence of Dr Jamieson that at the time of taking the notes from the complainant, Dr Jamieson was not doing this for the purpose of conducting a formal investigation and, as a consequence, her mind would not have been turned to the exercise of gathering information for the purpose of a disciplinary proceeding.  

43. [43]
    Dr Jamieson accepted under cross-examination that the file notes did not contain all of the matters that were raised during the conversation with the patient and were therefore not a fulsome and detailed account of what had taken place.

44. [44]
    As noted elsewhere, Dr Jamieson did not provide RN Jacques with a copy of the file note of their discussions regarding the incident to confirm its accuracy.

45. [45]
    The file note taken by Dr Jamieson on 10 December 2015 records the following:

Cath recalls [name redacted] asking her if anyone had complained about "the nurse" (referring to EN Allan White who had just been giving him cares). Cath remembers telling [name redacted] that Allan is a very good nurse. Cath also recalls that [name redacted] then went on to tell Cath that the nurse (Allan White) had been fiddling with the VAC tubing and in the process of 'making out' that he was tracing the tubing, had inappropriately touched his genitals."^[26]

46. [46]
    In re-examination, counsel for the applicant asked RM Jacques the following:

MS HARTIGAN: Ms Jacques, did the patient tell you that he – that Mr White had inappropriately touched his genitals?

MS JACQUES: He didn’t say that in – in – in those words.  I believe he said something like, he was fiddling with the tubing for a bit too much longer than he thought was necessary in the groin area and I’m not sure exactly of what words he said.

MS HARTIGAN: All right.  Did you use the words to Ms – sorry, I withdraw that – to Dr Jamieson that the patient had reported that Mr White had inappropriately touched his genitals?

MS JACQUES: I don’t believe I did.^[27]

47. [47]
    To further illustrate the point, Dr Jamieson was asked in cross-examination:

MS HARTIGAN: In relation to the matters that have been raised, you accept that not all of the conversation that you had with Ms Jacques is recorded in this, but I put to you that when she did describe the conversation she had with the patient, I put to you that she didn’t use the words:

In the process of making out that he was tracing the tubing.

MS HARTIGAN: Do you accept that those words may not have necessarily been used?

DR JAMIESON: I documented in these notes, that were done straight away, inverted commas, so I’m presuming, I can’t recall exactly what was said, but by my notes that were – were written straight away I believe that it – that’s exactly what she said.

MS HARTIGAN: And, similarly, I put to you – and these aren’t in inverted commas, that she didn’t use the words:

Had inappropriately touched his genitals.

MS HARTIGAN: Do you accept that?

DR JAMIESON:  She may not have used those words.

  MS HARTIGAN: Right?  

  DR JAMIESON: If I haven’t put them in.^[28]

48. [48]
    Ms Whitehead told the Commission that she relied upon the file notes prepared by Dr Jamieson to substantiate the allegations against the applicant including making findings of credit. Ms Whitehead deposed^[29] that she proceeded on the basis that the information contained in the file notes of Dr Jamieson accurately recorded the discussions she had with both RN Jacques and the patient.  As the following exchange confirms, the file note was not taken by Dr Jamieson for the purposes of an investigation. More importantly, it demonstrates that the patient was not asked to confirm that the file note represented an accurate record of the conversation:

MS HARTIGAN: Following that conversation you, despite him – despite him saying he didn’t want to be contacted with – any further, you didn’t then subsequently say, "Look, this – I’ve taken a file note of our conversation.  Can you verify for our records that that’s an accurate representation of the conversation and you agreed with it", you didn’t – you didn’t do that, did you?

DR JAMIESON:  No. I didn’t because it was a file note and I consider my file notes as notes to myself.

 MS HARTIGAN: Right?

 DR JAMIESON:  Yes.

MS HARTIGAN: And that’s an important distinction to make.  So from your perspective what you thought you were doing was making a record of a conversation for your purpose, for your records?

DR JAMIESON:  That’s right.

MS HARTIGAN: You didn’t think it would be necessarily a matter that would be before this Industrial Relations Commission…

DR JAMIESON:  No.

MS HARTIGAN: …looking at information that was conveyed by this patient to you on that day?

DR JAMIESON:  Not at all.^[30]

49. [49]
    The failure of the respondent to call the patient prevents the Commission from determining the accuracy or otherwise of the file note.

50. [50]
    It was contended by the applicant that any determination made by Ms Whitehead having regard to the unreliability of the evidence, including that contained in the file notes, cannot be said to have been based on the principle in Briginshaw v Briginshaw. 

51. [51]
    The Briginshaw Principle was explained by Dixon J where his Honour wrote:

"…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a result of a mere mechanical comparison of probabilities."

52. [52]
    His Honour went on to express the standard as one of "reasonable satisfaction". He observed:

"…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences 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… In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

53. [53]
    I accept the submission that the matter before the Commission was one where the evidence was deficient. The applicant argued that the case was "…based on inexact proof, indefinite testimony and indirect inferences". I agree.

54. [54]
    I also accept that the information gathering process was uncontrolled and ad hoc and the "investigation", such as it was, lacked rigour and the degree of objective analysis necessary when considering whether an employee's employment should be terminated.

55. [55]
    I prefer the direct evidence of the applicant and RN Jacques over the indirect evidence of the patient.

56. [56]
    An employer who undertakes a full and extensive investigation; gives the employee a reasonable opportunity to respond to allegations; and makes an honest decision that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission.^[31] However, this is not such a case.

57. [57]
    Having regard to the seriousness of the allegations and the significant consequences for the applicant's employment, the more anxious the decision maker should have been to ensure she attained the necessary standard of satisfaction that the facts in dispute were more probable than not to exist. The evidence before the primary decision maker was of such a kind that the standard of "reasonable satisfaction" could not be reached.

 (d) any other matters the commission considers relevant.

 Unrelated and unsubstantiated allegations

58. [58]
    It was submitted by the applicant that the respondent considered unrelated and unsubstantiated allegations dating back to 2008.

59. [59]
    In the letter dated 24 May 2016 Ms Whitehead writes as follows:

"I am aware also that four similar allegations were made against you in 2008. Whilst, as I understand it, those allegations were ultimately found to be unsubstantiated and no disciplinary action was taken, the similar nature of those allegations is of great concern to me and potentially relevant to the disciplinary outcome in this case. Your response is sought in that regard."

60. [60]
    The QNU on behalf of the applicant replied by letter dated 7 June 2016 expressing concern that Ms Whitehouse considered the 2008 allegations "potentially relevant" notwithstanding the allegations were unsubstantiated and no disciplinary action taken.

61. [61]
    Ms Beth Mohle, Secretary of the QNU wrote:

"The allegations against Mr White in 2008 are irrelevant to this matter on the basis that they were not substantiated and Mr White had no disciplinary action taken against him. As you would be aware, the subject matter of the allegations against Mr White in 2008 were tested in a jurisdiction with more rigorous evidentiary requirements than that of civil matters, and before a jury of his peers Mr White was cleared of all matters.

Your expression of "great concern" that the allegations in 2008 were of a similar nature to the current subject matter indicates that extraneous and historic information that was dealt with and should have been closed, has unduly influenced your considerations in this matter.

The QNU submits the current disciplinary process in this regard is procedurally flawed, has inherently biased the outcome and should be discontinued immediately."^[32]

62. [62]
    Ms Whitehouse rejected the submissions of the QNU that reference to the 2008 allegations had unduly influenced her considerations. The prior allegations were raised, it was said, for completeness in the context of a proposed disciplinary outcome and to give the applicant an opportunity to respond.^[33]

63. [63]
    During cross-examination, Ms Whitehead was asked:

MS HARTIGAN: And your evidence – sorry.  Your statement here is that the fact that they were similar – of a similar nature, was of a great concern to you?

MS WHITEHEAD: Yes.

MS HARTIGAN:  And why was that?

MS WHITEHEAD: I was worried that they could represent a pattern of behaviour.

MS HARTIGAN:  And that’s despite not knowing how they’d been dealt with by the hospital system previously?

MS WHITEHEAD: Well, as I said, I was worried that they could represent.

MS HARTIGAN:  And so from that perspective you thought that they may possibly be relevant to the present proceeding?

MS WHITEHEAD: Given that I had been told the information by Ms Ireland, I did want Mr White to know that I did know that, to be fair and transparent and to give him an opportunity to respond to those issues.

MS HARTIGAN:  Well, because you say they were of great concern to you, so you considered them to be relevant?

MS WHITEHEAD: I considered them to be of a concern, yes.

MS HARTIGAN:  Yes.  And relevant?

MS WHITEHEAD: Potentially, yes.  They could.^[34]

64. [64]
    The respondent submitted that the decision maker was entitled to consider the applicant's employment record in arriving at the decision on penalty. In making that submission, the respondent relied upon Licastro v Brisbane City Council.^[35] As a matter of general principle that may be so. But in this case, the applicant had no adverse finding against him. The allegations were tested and found to be unsubstantiated and involved no disciplinary outcome.

65. [65]
    I agree with the contention of the applicant that the consideration by Ms Whitehouse of the unsubstantiated allegations raised the issue of bias or, at least, the appearance of bias.

66. [66]
    In Ebner v Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ wrote:

"Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. …It is fundamental to the Australian judicial system."^[36]

67. [67]
    Their Honours went on to note:

"The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making."

68. [68]
    Those differences were that administrative decision makers would still be subject to the rules of natural justice unless the statue under which the decision maker exercises his or her power expressly excludes those rules;^[37] and, that few administrative decision makers enjoy the same level of impendence and security of tenure as judges. Their Honours then went on to say:

"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial."^[38] [Citations omitted]

69. [69]
    In British American Tobacco Australia Services Limited v Laurie, Heydon, Kiefel and Bell JJ expressed the principle in the following way:

"The rule requires that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. The apprehension here raised is of pre-judgment; it is an apprehension that, having determined the existence of the policy in the earlier proceeding, Judge Curtis might not be open to persuasion towards a different conclusion in Mrs Laurie's proceeding."^[39]

70. [70]
    Their Honours went on to say that "[i]n Livesay^[40] it was recognised that the lay observer may reasonably apprehend that the decision maker having formed a particular view or found a particular state of affairs to exist may be disinclined to depart from that view."^[41] It was, as their Honours expressed it "… a recognition of human nature."^[42]

71. [71]
    The evidence of Ms Whitehead demonstrates to me that she was influenced by Ms Ireland's advice regarding the previous allegations; that they were a great concern to her; and that she "… was worried that they could represent a pattern of behaviour."^[43] For Ms Whitehead the allegations were potentially relevant.^[44]

72. [72]
    In my view, a fair-minded lay observer might reasonably apprehend that Ms Whitehead might not bring an impartial mind to the resolution of the question that she was required to decide. As the decision maker, Ms Whitehead was obligated to ensure that justice should be done and be seen to be done.

Jones v Dunkel Inference

73. [73]
    The applicant submits that the drawing of a Jones v Dunkel inference is open to the Commission in relation to the respondent choosing not to call the patient.^[45] In Shane Joseph Farrell AND Q-COMP^[46] I addressed another situation in which a Jones v Dunkel inference might arise:

"The principle in Jones v Dunkel^[47] at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.

Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:

   "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."

In Manly Council v Byrne & Anor,^[48] Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot^[49] to support the proposition that:

    "Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia . . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:

   "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.""

74. [74]
    In RHG Mortgage Ltd v Ianni the New South Wales Court of Appeal reiterated that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party.^[50] The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her existence would elucidate the matter; thirdly, whether his or her absence is unexplained.^[51]

75. [75]
    I have little doubt that it would have been expected that the respondent would have called the patient and that his evidence would have been of a kind which would put a "…true complexion on the facts relied on" by the respondent.

76. [76]
    In terms of whether his absence was explained, the evidence of Ms Whitehead^[52] was that she was concerned for the patient's mental health and was not prepared to authorise any steps on behalf of the Health Service to compel the patient to give evidence.  However, as she admitted in cross-examination, there was no medical evidence to support that conclusion and it was merely her own personal belief. As exhibit JW-11 to her affidavit makes clear, the patient advised the respondent that "… he did not wish to take the matter any further and that he was not willing to be involved any further in relation to this matter."^[53]

77. [77]
    Owen J in The Bell Group Ltd v Westpac Banking Corporation wrote:

"At an early stage in the proceedings, I made it clear that I intended to apply the rule in Jones v Dunkel in a realistic way. So far as I am concerned, the rule in Jones v Dunkel is grounded in commonsense. It falls to be applied in accordance with the circumstances of the case. The trier of fact is the person in the best position to assess the importance that the testimony of a witness would play, or would likely have played, in relation to the issue concerned."^[54]  

78. [78]
    Whilst the applicant does not submit that an inference can be drawn in relation to the failure to call Mr Dan Bergin, the Executive Director of the Rockhampton Hospital or Toni Clark the GP Practice Manager, the same does not apply to the failure to call the patient. The patient was contactable, compellable and the respondent's failure to call him has, as a consequence, left a number of substantial matters unaddressed. I can only conclude that, if the patient was called, he could not have assisted the respondent.

Remedies

79. [79]
    Section 78 of the Act gives the Commission the power to reinstate an employee in circumstances where their termination has been found to be unfair.

80. [80]
    Section 78 of the IR Act provides as follows:

 "78Remedies - reinstatement or re-employment

3. (1)
   This section applies if the commission is satisfied an employee was unfairly dismissed.

3. (2)
   The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

  (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.

  (4) The commission may also -

1. (a)
   make an order it considers necessary to maintain the continuity of the employee's employment or service; and

2. (b)
   order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and

3. (c)
   order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.

 (5) This section does not limit the commission's power to make an interim or interlocutory order."

81. [81]
    The applicant seeks reinstatement. 

82. [82]
    Reinstatement is the primary remedy under the IR Act and s 79, the provision relating to compensation, is only enlivened "If, and only if, the commission considers reinstatement or re-employment would be impracticable."

83. [83]
    It was contended by the respondent that it was impractical to reinstate the applicant.  In support of that contention, the respondent submits that "… the nature of the misconduct engaged in by the applicant, being a serious breach of trust going to the heart of his position as an Enrolled Nurse entrusted with the care of patients of the Hospital."

84. [84]
    Dr Jamieson's stated in her evidence that the applicant could not return to work in the Surgical Unit without posing a risk to patients.^[55] 

85. [85]
    Ms Whitehead's evidence as to the impracticability of the applicant returning to his former position is set out in paragraph 25 of her affidavit.^[56]  Essentially, her evidence concerns the applicant's fitness to undertake his duties and the hospital's ability to provide continuous supervision of the applicant or to assign to him duties that do not include the care of patients.

86. [86]
    The respondent drew the Commission's attention to the decision of Wilcox J in Nicolson v Heaven and Earth Gallery where his Honour wrote:

"The word "impracticable" requires and permits the Court to take into account all of the circumstance of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement; notwithstanding that the job remains available."^[57]

87. [87]
    There is no evidence before the Commission to support a conclusion that it would be "impracticable" to reinstate the applicant in the sense that such an order would impose "unacceptable problems or embarrassment or seriously affect productivity, or harmony".

88. [88]
    The applicant referred the Commission to Perkins v Grace Worldwide (Aust) Pty Ltd where the Full Bench of the Fair Work Commission wrote:

"Trust and confidence are concepts of degree.  It is rare for any human being to have total trust in another.  What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.  Whether that standard is reached in any particular case must depend upon the circumstances of the particular case.  And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing.  The requirement may cause inconvenience to the employer.  But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee.  The problems will be of the employer’s own making.  If the employer is of even average fair-mindedness, they are likely to prove short-lived.  Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."^[58]

89. [89]
    Whilst I accept that it may be inconvenient or difficult for the respondent to reinstate the applicant, it is nevertheless, in my view, not impracticable for them to do so.  In Auto Logistics Pty Ltd v Kovacs de Jersey P considered the meaning of word "impracticable".  His Honour concluded:

 "That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."^[59]

90. [90]
    The evidence before the Commission does not support a conclusion that it would be impracticable to reinstate the applicant.  It must therefore follow that the applicant ought to be reinstated to his former position.

Conclusion

91. [91]
    In cases such as this involving a dismissal on grounds alleging serious or criminal misconduct, the onus of proof to be applied by the Commission shifts from the applicant to the respondent employer.

92. [92]
    I have not been persuaded by the evidence before the Commission that the respondent has discharged the necessary onus of proof. For the reasons outlined above, I am of the view that the applicant's dismissal was harsh, unjust or unreasonable. The dismissal was therefore "unfair" within the meaning of s 73 of the IR Act.

93. [93]
    Accordingly I allow the application for reinstatement.

Orders

94. [94]
    For the reasons advanced above I make the following orders:

1. (i)
   The application is granted;

2. (ii)
   That the applicant be reinstated to his former position with the respondent;

3. (iii)
   The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and

4. (iv)
   The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission.