Bowen Old People’s Home Society v Dicker [2002] ICQ 41 (2002) 171 QGIG 51

20 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 51 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – Act 1999 – s. 341(1) –appeal against decision of industrial commission Bowen Old People’s Home Society AND Kenneth Howard Dicker (No. C49 of 2002) PRESIDENT HALL 6 September 2002 DECISION The respondent commenced employment with the appellant on or about 12 July 1999. On or about 26 June 2001 a staff member of the appellant subordinate to the respondent made a complaint about the respondent’s treatment of her. The complaint triggered enquiries and meetings which led to the dismissal of the respondent on 30 July 2001. -- 1 of 2 -- 52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 September, 2002 On 13 August 2001 the respondent filed an application for relief under the provisions of the Industrial Relations Act 1999. He was partially successful. The Queensland Industrial Relations Commission found that the respondent’s dismissal had been harsh, unjust and unreasonable, found that reinstatement would be impracticable and ordered payment to the respondent of a sum of money equivalent to three months’ salary by way of compensation. The decision of the Commission is reported at 170 QGIG 311. Essentially, the Commission found that the dismissal was harsh, unjust and unreasonable because of the inadequacies and unfairness of the appellant’s investigation and determination of the complaint against the respondent. The appellant does not, on the appeal, attack the findings of the Commission adverse to it upon the matter of process. Rather, it attacks the decision of the Commission on the basis that the Commission gave inadequate consideration and weight to the gravity of the respondent’s conduct. Such an attack on a decision about the harshness, justness and reasonableness of a dismissal is entirely consistent with principle. The processes followed by an employer leading up to a decision to dismiss and in determining to dismiss are relevant to the harshness, justness and reasonableness of a dismissal, but are not decisive of it. Many are the reported cases in which the substance of fairness of a decision to dismiss has prevailed over shortcomings in process, see e.g. Byrne v. Australian Airlines Limited (1995) 185 CLR 410 (misconduct) and Alamzeb v. Education Queensland (No. 2) (2002) 170 QGIG 190 (competence). The difficulty with the appellant’s case lies in the detail. In short form, it seems to me that the relevant evidence to which the Commission is said not to have referred was in fact taken into account, and the view of the transaction involving the complainant and the respondent pressed upon the Court (and the Commission below) seems to me not to have been reasonably open on the evidence. The appellant’s first complaint is that the Commission did not take into account the allegations and/or the nature of the allegations made by the complainant about the respondent. In fact, the Commission found that “so be it, the manner in which the applicant spoke to [the complainant] was not a manner, which is in accordance with contemporary industrial relations”. The only basis on which the Commission might have made such a finding was by accepting the truth of the allegations made by the complainant and acting upon them. The second complaint is that the Commission “failed to consider the similar nature of the events which took place between Mr Dicker and [another subordinate] in January 2000”. I would like to think that the Commission did fail to take that evidence into account. The incident was so far removed in time and circumstance from the allegations made against the respondent in June 2001 as to lack all cogency. Howsoever that may be, if the Commission did make use of the evidence it might have made use of the evidence only to support its acceptance of the allegations made against the respondent in June 2001. As noted above, the Commission did accept and act upon those allegations. The third complaint is that the Commission failed to take into account that the exchange between the complainant and the respondent occurred in a nursing home. It is plain that the Commission was aware that the incident occurred in a nursing home. The Commission expressly refers to the nature of the appellant’s undertaking at a number of points in its decision. It seems to me not to be legitimate to proceed on the view that the Commission was unaware of the materiality of the nature of the appellant’s activities. It is notoriously the case that interactions between staff members which fall short of best practice may be pardonable when they occur only in the presence of other staff and unforgivable when they occur in the presence of clients. Indeed, in the case of hospitals there is clear authority (of this Court) that fighting “in the corridor leading to the public ward of a hospital” which “caused significant distress to patients and nursing staff” justifies dismissal and will operate to defeat a claim that the dismissal was harsh, unjust and unreasonable, see Queensland Health v. Gary Robinson and Brian Grimley (1990) 160 QGIG 194. However, it is not every snub, snide word or angry exchange in a hospital or nursing home which will justify dismissal. It was necessary for the Commission to make findings about where the conduct occurred relative to patients, the audibility of the incident, the acuity of the patients, the actuality (or likelihood) of distress being caused to the patients and the likelihood that in the absence of termination of the respondent’s employment similar or more aggravated conduct might occur in the future. There was a paucity of evidence on those matters. On the critical issue of audibility the best evidence was that Mr Dicker could “clearly be heard outside the closed door”. On that evidence it is entirely speculative whether the words were audible or merely the voice (and perhaps the tone). On the materials before the Commission a finding about the gravity of the respondent’s conduct in situ was not reasonably open and it is not surprising that such a finding was not made. Some attack unrelated to the gravity of the respondent’s conduct was made upon the decision of the Commission. First, it was contended that the respondent was given money in lieu of notice pursuant to a contract voluntarily entered into. Assuming that to be so, the respondent had no civil action in contract, but it is a principal purpose of chapter 3, part 2 of the Industrial Relations Act 1999 to confer remedies where perfectly lawful dismissals are unfair. Second, the appellant complains of the generosity of the emoluments and conditions made available to the respondent under the terms of his engagement. It is not immediately apparent whether the submission is that the generosity of the contract requires greater fidelity on the part of the employee or the submission is that the generosity of a contract gives the employer greater liberty in determining whether to bring the contract to an end. As a matter of first impression I should have thought that save for the exclusion from chapter 3 part 2 of employees whose annual wages immediately before the dismissal exceed a prescribed amount, see s. 72(1)(e)(iii), the munificence of a contract of employment is irrelevant to the harshness, justness or reasonableness of its termination. However, no argument should be condemned for its novelty, and in a proper case where the issue is ventilated in the Commission on proper notice all parties have had an opportunity to call evidence upon the matter I should be disposed to consider the argument. But that is not this case. Because of the way the matter has been conducted, the respondent has not had the opportunity to lead what might well be very material evidence. The Commission did not err in law. I dismiss the appeal. I notice that by his written submissions the respondent seeks both reinstatement and an increase in the amount of compensation which the Commission ordered to be paid. In the case of a lay respondent, the absence of a cross appeal and the circumstance that an issue is raised in submissions after the time for a cross appeal has expired may perhaps be excused. Here, however, nothing put by the respondent suggests that there was an error of law by the Commission. The submissions were really about the way in which the Commission assessed and resolved conflicting evidence. Such matters are entirely for the Commission. The respondent also seeks costs. It is not immediately apparent to me what costs have been incurred by the respondent, who acted for himself. In any event, there has been no unreasonable act or omission on the part of the appellant which would trigger the power at s. 335(1)(b). Neither am I prepared to conclude that the appeal was made “vexatiously or without reasonable cause”. In dealing with cases under chapter 3 part 2 the Queensland Industrial Relations Commission is in something of a difficult situation. It has a duty to fully expose the reasons for its decision. It also has a responsibility to be cautious about making and recording for posterity findings about conduct and credibility. The exercise of such tact may on occasion cause an unsuccessful litigant to be concerned that material matters have been overlooked. This seems to me to be such a case. I can understand why the appellant decided to test the decision. I refuse the application for costs. Dated 6 September 2002. D.R. HALL, President. Released: 6 September 2002 Appearances: Mr P. Norman of Groves and Clark, Solicitors, for the appellant. The respondent in person. -- 2 of 2 --