On 26 September 2014 the Industrial Relations Commission handed down its decision in the matter of Dr A v Health District (2)  NSWIRComn 50.
The matter related to an application by a doctor for an order under section 89(7) of the Industrial Relations Act 1996 (the IR Act) that the employer not dismiss him from his employment in accordance with its threat to do so. It was alleged that the doctor had, on two occasions, forcefully applied a pillow to a patient’s face placing the patient at risk of serious harm.
The doctor maintained that he merely used the pillow as a spit shield when a patient starting spitting at him and denied that the pillow had been pressed against the patient’s face. Clinicians that were present at the time gave evidence that the pillow had been used inappropriately on two occasions and pressed firmly onto the patient’s face for a period of time ranging from estimates of four seconds up to two minutes.
An internal investigation was conducted by the hospital and the investigation concluded as a preliminary finding that the doctor had forcefully applied a pillow to the face of a patient in response to the patient spitting at the doctor. The doctor responded to the preliminary findings and strenuously denied the allegation. The doctor provided detailed submissions in response as to why the evidence did not support the allegation.
On 14 August 2013 however, the chief executive of the hospital confirmed the preliminary findings after responding to the doctor’s submissions and indicated that a recommendation had been made that the doctor’s employment be terminated. The doctor commenced proceedings pursuant to section 84 of the IR Act asserting that the chief executive’s letter was a threat to terminate his employment and that such threat and termination would be ‘harsh, unreasonable and unjust’. The doctor filed a notice of motion seeking an injunction restraining the threatened termination of his employment.
At an interlocutory hearing on 28 August 2013 the hospital indicated that it was prepared to give an undertaking that it would not take any steps to terminate the doctor’s employment unless it provided seven (7) days’ notice of such an intention. On 10 September 2013 a conciliation conference was held but it was unsuccessful in resolving the matter. On 6 November 2013 the chief executive of the hospital made a decision to terminate the doctor’s employment but execution of that decision was put on hold pending determination of the unfair dismissal proceedings. Whilst this decision was outstanding the doctor was suspended without pay.
The Commission held that the doctor bears the onus of establishing that the threatened dismissal is harsh, unreasonable or unjust. The hospital however, bears the onus of proving its allegations of misconduct on the part of the doctor. The standard of proof required was the balance of probabilities according to the Briginshaw Standard. The standard must however, be satisfied to a degree that is appropriate to 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.
The central issue that required determination in these proceedings was whether the doctor forcefully applied a pillow to the face of the patient. If this was found to be the case then the Commission found that there would be no basis upon which they could make an order preventing the hospital from implementing a decision to terminate the doctor’s employment. If however, this was not found to be the case then an order would be appropriate and the other reasons relied upon by the hospital to justify the decision to terminate the doctor would fall away.
The Commission was unable to find that the doctor was a completely credible or reliable witness. As a result the Commission approached the critical question with a greater degree of scepticism about the doctor’s version of events. In relation to whether the pillow was forcefully applied to the patient’s face, the Commission took the approach that the onus falls upon the hospital to prove this and it is not upon the doctor to disprove it.
The Commission found that it needed to be reasonably satisfied beyond ‘inexact proofs, indefinite testimony or indirect inferences’ that the doctor forcefully applied the pillow. If such an allegation were proven it would be tantamount to assault and the consequences against the doctor would in all likelihood spell the end of his career in emergency medicine.
Despite the troubling aspect of the doctor’s evidence, the Commission concluded that it was ultimately unable to find that the doctor forcefully applied the pillow to the patient’s face. The reason for this conclusion was that not all witnesses saw the pillow come into contact with the patient’s face, there was no evidence of any harm to the patient, the lighting where the incident occurred was dim, the doctor’s use of the pillow happened so quickly and the pillow may have come into contact with the patient’s face due to him thrashing about. In addition to this in the days after the event and following an internal investigation the head of the emergency department concluded that the incident could be managed internally and did not warrant termination of employment. Further, it was noted that following review by the Medical Council of NSW it determined that there were no ongoing concerns about the doctor’s professional conduct.
Given that the Commission was not satisfied that the hospital had discharged its onus of proving the allegations it considered it unreasonable for the hospital to threaten to dismiss the doctor. The Commission considered the use of the pillow to be ‘inappropriate and an affront to the patient’s dignity’ however, the hospital did not prove that the patient’s safety was in jeopardy and whilst the doctor engaged in poor decision making these matters did not justify a threat to dismiss. The appropriate course was counselling and monitoring of conduct as proposed by the head of the department.
In considering whether an alleged event occurred as a basis for terminating an employee’s employment it is important to be aware that should the matter proceed to a hearing before the Commission the employer will bear the onus to prove the allegations. The employee will not be required to disprove the allegations of misconduct.