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New South Wales Industrial

Relations Commission
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HREA on behalf of Robert Drinan v Hunter Area
Health Service [2002] NSWIRComm 270 (18 October
2002)
Last Updated: 1 November 2002

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : HREA on behalf of Robert Drinan v Hunter Area Health Service [2002]
NSWIRComm 270

FILE NUMBER(S): IRC 4434

HEARING DATE(S): 26/09/2002, 27/09/2002

DECISION DATE: 18/10/2002

PARTIES:

APPLICANT:

The Health & Research Employees' Association of NSW on behalf of Robert John
Drinan

RESPONDENT:

Hunter Area Health Service

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT:

Mr R Hull

Health & Research Employee's Association of NSW

15 April 1996 (1996) 65 IR 253. 18 October 2002 . Industrial Relations Court of Australia. Eon Robinson v Northern Sydney Area Health Service (970220). February 1992 Muncaster and Hunter Area Health Service .A. Locke JR. in matter no IRC 11 of 1991. W. Government & Related Employees Appeal Tribunal. Industrial Relations Court of Australia. 20 December 1995 Wyndham Lodge Nursing Home Inc. 11 November 1998. Stewart & Hunter Area Health Service . Wallace v Grace McKellar Centre. 23 February 1995. 30 June 1997.RESPONDENT: Mr R De Meyrick of Counsel SOLICITOR: Mr J Pomeroy Sparke Helmore Solicitors CASES CITED: Samad v Public Service Board. 5 November 1982. Federated Miscellaneous Workers’ Union of Australia. Ryan and North JJ). LEGISLATION CITED: Industrial Relations Act 1996 Mental Health Act 1990 JUDGMENT: -9- INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday. Branch v Board of Management Narambeen District Hospital. v Reader (960131) Full Bench of the Industrial Relations Court of Australia (Wilcox CJ. Supreme Court of Western Australia Industrial Appeal Court. Harrison DP Matter No IRC 5299 of 1998. Matter No IRC 2589 of 1994. (960615) Murphy JR. Appeal No 1395 of 1982. Harrison CC.

the respondent employer. and Mr Paul Moore. employed by the respondent as Nurse Manager Level 2. Mr R De Meyrick of counsel. employed by the respondent as a Registered Nurse. employed by the respondent as a casual Registered Nurse. and Ms Karen Wales. Mr Hull also produced an affidavit from Mr Raymond Marsh. THE EVIDENCE 5 The applicant commenced employment with the respondent on 26 September 1994 as a Cook. After Hours Supervisor. 2 On hearing Mr R Hull of Health and Research Employees' Association of New South Wales (HAREA) appeared on behalf of Mr Robert Drinan. Greater Newcastle Sector. the applicant. employed by the respondent as a Security Officer. which I set out below: · 1987 . who was not required for cross examination. solicitor of Sparke Helmore. employed by the respondent as a Human Resources Consultant. employed by the respondent as Assistant Manager Security. and as such the applicant’s supervisor. Ms Jacqueline Causer.Matter No IRC 4434 of 2002 The Health and Research Employees' Association of New South Wales (On Behalf of Robert John Drinan) and Hunter Area Health Service Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 270 1 This matter was subject to arbitration on 26 and 27 September 2002 following unsuccessful attempts at conciliation. appeared on behalf of the Hunter Area Health Service . Mr Rodney Prouse. a position he occupied until 1999 when he was redeployed into the position of Security Officer as part of a restructure of the respondent’s organisation. Morisset Hospital. and the applicant. 3 Mr Hull brought evidence from Ms Pamela Borthwick.Applicant obtained Security licence pursuant to the relevant legislation . 4 Mr De Meyrick brought evidence from Dr Colin Kable. The applicant’s employment was terminated on 4 August 2002. instructed by Mr J Pomeroy. employed by the respondent in his capacity as a Psychiatrist. 6 A useful chronology of relevant events emerges from the evidence. who was not required for cross examination.

aggressive. 7 There is no dispute between the parties that the applicant’s employment had been incident free.Fact finding interview conduced by respondent · 18/7/02 . conducted by Websters Training Academy.Further interview by the respondent concerning events of 17/6/02 · 29/7/02 .Memorandum issued to the applicant advising of his enrolment in an aggression minimisation course to be conducted on 26 and 27 September 2002. · November 1999 .Applicant attained Certificate 2 in Security on completion of an eight day course conducted by Websters Training Academy. On one other occasion I was bitten by a female patient. Belmont. 10.Termination of the applicant’s employment effected on the basis of a finding by the respondent that the applicant had slapped a patient on the side of the face in an instantaneous response to her spitting in his face. effective 4 August 2002. Wallsend. During the time I have been employed as a Security Officer I have encountered many incidents that were violent.Applicant suspended from duties by the respondent · 3/7/02 .Applicant completed the Safety and Survival Skills . James Fletcher and John Hunter on a relieving basis. On one occasion I was hit over the head with a bottle at the John Hunter Hospital when two other Security Officers and myself were involved in an incident involving approximately 60 youths who were clearly affected by alcohol. · 17/6/02 . Since October 1999 I have worked as a Security Officer at various hospitals within the Newcastle area including Royal Newcastle. .· October 1999 . Costs associated therewith paid by the applicant. The respondent considered this a breach of the standards expected of a Security Officer. dangerous and hazardous to the health and safety of staff. · 1/8/02 .Written advice to the applicant of termination of his employment. Morisset. 8 The applicant’s unchallenged evidence is: 9. The cost of the course and licence fee was paid by the respondent. The majority of my shifts were worked at the John Hunter Hospital and for a period of approximately 3 months in the year 2000 I worked continuously at Morisset.Incident giving rise to termination of applicant’s employment · 27/6/02 . · 4/8/02 .Level 1 Course. without warning or reprimand prior to the events of 27 June 2002. patients. visitors and myself.

9 The evidence of Ms Borthwick is that the applicant had carried out his duties in a diligent and professional manner. pursuant to the Mental Health Act 1990.00 am to 7. 14 The evidence is that on the afternoon of 27 June 2002 both patients ran away from the ward and that the security officers were required to locate and return them. 16 The security officers and nursing staff were informed by Dr Kable that Miss “B” was to be “scheduled”. and that he had been called to Ward J2 on two occasions earlier on the 27 June 2002 to assist staff who were having problems with the two patients. Miss “B”. 15 During the course of return to the ward. running through the corridors and hiding in a stairwell. had been admitted suffering from manic depressive disorder. the patients again absconded. and that none of the other participants in those courses were engaged in health care. The patients were found in the vicinity of a bus stop. On that day the applicant was rostered to work from 7. The security officers were requested to remain until the patients “settled down”. aged 14 years. the nursing staff and Security Officer Prouse were also present in the ward. trying to obtain cigarettes from members of the public. and relocated to James Fletcher Hospital. The security officers successfully persuaded the patients to return to the ward without incident. Dr Kable. Miss “A” was to be discharged and her family would collect her. undertaking security duties at John Hunter Hospital as required. The second patient. Upon arrival at the ward the applicant found that the patients had returned thereto. Potentially violent incidents also occur on a regular basis within the hospital environments and on many occasions myself and other Security Officers are able to defuse these situations by talking and reasoning with the person or persons acting aggressively.00 pm. 13 The evidence of the applicant is that he was familiar with Miss “B” as she had been involved in events in the hospital over the previous 2 days. had been admitted as a result of alcohol abuse and had been identified as suffering from unspecified mental health problems. . 11 There is little conjecture between the parties concerning the broader circumstances of 27 June 2002. During the course of his shift the applicant and a fellow Security Officer Rodney Prouse (‘the security officers”) were requested to assist medical staff in Ward J2 who were experiencing difficulty with two female juvenile patients. 10 The evidence is that none of the training or accreditation courses attended by the applicant were specific to health care security. aged 12 years. The security officers separated to conduct a search. 12 The first patient Miss “A”.11. and that officers of the NSW Police service had been called to undertake that task. despite being met with abuse and an initial refusal by the patients to return to the ward.

19 Dr Kable’s evidence is that he recognised the situation as volatile and potentially dangerous. however was of the opinion that separating the patients may inflame the situation. His evidence is that he used his right hand in a back-handed motion. 21 The evidence is that the security officers requested Miss “A” to leave the room. . subsequently concurring with the separation. then slipping up to the side of her face. and throwing lollies and other small objects at staff. round arm motion. whereupon she verbally abused the applicant and spontaneously spat in his face. causing an audible slapping sound. The applicant informed Miss “A” that she could not return to the room with Miss “B”. fending off Miss “A” without force. or malice. the applicant remained with Miss “A”. The security officers were aware that the patients had a cigarette lighter and were concerned at the potential for greater harm and damage. open handed. There was no use of force and there was no significant resistance. The applicant’s evidence is that he reacted by reaching out to push her away so that she was no longer facing him. however he retained control. 22 Once Miss “A” was out of the room Security Officer Prouse returned to Miss “B”. playing with the tap of an oxygen bottle. The patients were observed destroying furnishings and fittings within the room. first making contact with the patient’s right shoulder. 18 The security officers suggested to Dr Kable that the patients be separated. 24 The evidence of Nurse Karen Wales is consistent with the description given by Nurse Causer. The applicant’s evidence is that his reaction was an instantaneous reaction. in an attempt to prevent her from spitting in his face again. The applicant concedes that at this time he uttered the words “you bitch”. Dr Kable later learned that Miss “A’s” parents had left the hospital and would be some time in returning.17 The uncontroverted evidence is that both patients continued to be aggressive and abusive towards the security officers. thus providing an effective catalyst for separation. Dr Kable deposed that he believed that Miss”A’s” parents had remained at the hospital and would collect her very soon. however Miss “A” questioned their right to do so and was told that authority had been given by Dr Kable. Dr Kable’s first response was “to leave them together for the time being”. turning it on and off. 20 Dr Kable’s evidence is that he did not object or intervene when the security officers decided to separate the two patients as any display undermining authority of hospital staff would certainly worsen the situation. 23 The evidence of Nurse Jacqueline Causer is that the applicant struck the patient with his right hand in a forward. pulling the nurses’ call buzzer from the wall thereby activating an alarm which could be heard throughout the ward.

CAUSER: I think he knew the moment it happened that he had slipped up. 26 All witnesses observed the applicant clean a large amount of spital from his face and glasses. 30 The information given by Nurse Causer to the fact finding enquiry conducted by the respondent is particularly incisive. he then. and he was there at the time.- J. WILKINSON: No. The applicant held the patient’s arms to prevent her further punching him. Constable Davies’ notes are tendered within the applicant’s affidavit (Ex 4). and again spat on his chest.. wherein the following exchanges are recorded: I. I. he was really upset. The applicant reported the circumstances of the exchange between himself and Miss “A” to Constable Davies of Waratah Command. WILKINSON: So he voluntarily. because they were taking the other girl. Constable Davies was not called to give evidence. and on departure again spat at the applicant’s head and neck. offered further abuse. and the security guard. in what is probably best described as a cuff across the side of the head. but from your perspective she (Miss “A”) was in control of her behaviour? J. . The applicant made no response to this attack. her affidavit. CAUSER: Yes.25 Dr Kable deposed that he observed the applicant make an open handed swing with his right arm. . . 28 Shortly after this incident Miss “A’s” parents arrived and sought permission from Dr Kable for her to say goodbye to Miss “B”. 27 The patient then launched into a further tirade of abuse. catching the patient on the side of the head above the ear. This is found in Attachment B to Ex 7. her father subsequently returned to the ward and apologised for his daughter’s behaviour. because I think she felt she had won the game.and he talked to the police officer and told him what had happened. Miss “A” was then taken from the ward by her parents. to which Dr Kable agreed.you know . threatened to have the applicant charged with assault. because I think he knew he had . When Miss “A” was subsequently leaving Miss “B’s” room with her parents she stopped in front of the applicant. and she was excited when he hit her. and commenced punching him in the stomach and chest.. to which he made no response.. The patient was then taken by nursing staff. 29 Some little time later Police Officers arrived to execute the scheduling and transport of Miss “B”. you know what I mean? But the police arrived soon after that.. when he realised what had happened.

really. a Decision of Locke JR of the Industrial Relations Court of Australia. and it's often like that. because we often call security on J2. February 1992 Muncaster and Hunter Area Health Service . WILKINSON: We need to look at that. and I’m not quite sure they know what we want them to do. I. Government & Related Employees Appeal Tribunal. WILKINSON: I'm sorry that you had to get involved.A. I. CAUSER: There weren’t. But there wasn't really. Were you aware of any specific instructions given to the security people on how to handle this particular situation? Were any precise instructions given? J. in matter no IRC 11 of 1991. v Reader ( 960131) a Decision of a Full Bench of the Industrial Relations Court of Australia (Wilcox CJ. and it has obviously been very stressful and a very unpleasant event. 30 June 1997. (960615) a Decision of Murphy JR of the Industrial Relations Court of Australia. it’s nice to have big blokes there. 5 November 1982. Appeal No 1395 of 1982. I think. SUBMISSIONS 31 Both Mr Hull and Mr De Meryck referred me to a number of decided cases in which the appropriate principles are set out and discussed: Samad v Public Service Board. and I think Dr Kable had asked. I’m not sure that they know quite what we want them to do. W. a Decision of the Supreme Court of Western Australia Industrial Appeal Court. When they came . as I then was. "The other girl is getting scheduled. I'm not quite sure. But sometimes.they ran off and they went and found them and brought them back. 20 December 1995 Wyndham Lodge Nursing Home Inc. Wallace v Grace McKellar Centre. but it is good to get your side of the story. 15 April 1996 (1996) 65 IR 253. Ryan and North JJ). obviously you were on the spot and you could see what happened. .I. the security guards can restrain them when someone is being scheduled. WILKINSON: Just as a back up sort of thing? J. that’s for sure. be there. Eon Robinson v Northern Sydney Area Health Service (970220). a decision of Harrison CC. in Matter No IRC 2589 of 1994. CAUSER: Yes. 23 February 1995. Federated Miscellaneous Workers’ Union of Australia. and then they stayed because they were so excitable and sort of could become violent." I think there is different rules. Branch v Board of Management Narambeen District Hospital.

Mr Hull made the distinction that the security officers had not been adequately trained or equipped to deal with the circumstances confronting them on the afternoon of 27 June 2002. expressed by the Tribunal in the following terms: “ The community looks to the respondent employer to ensure that persons under institutional psychiatric care are not subjected to assault by those whose duty it is to care for them. This Judgement commences with the statement: “It is a fundamental rule of psychiatric nursing that patients must not be subjected to violent treatment or violent correction by the nursing staff.89 of 29 November 1968. 32 Mr De Meryck relied heavily upon the principles established in Samad’s case.” 34 Mr De Meryck further relied upon the application of these principles in Stewart’s case. . If I accept the applicant’s contention that she struck the patient in an uncontrollable instinctive reaction. that fault is not moved from her to the patient. The mitigating circumstances put go to the events surrounding that act. brought to the attention of all nursing staff in Circular 68/P. 36 Mr Hull did not resile from the principles of conduct earlier relied upon by Mr De Meryck. a comprehension that he had misconducted himself. wherein the Commission as presently constituted held: “It is not disputed that the applicant struck a patient. “you bitch”.” 35 Mr De Meryck submitted that the applicant’s utterance of the exclamation.Stewart & Hunter Area Health Service . It expects that employees who breach this requirement will not be retained in that employment. 11 November 1998.H. a Decision of the Commission as presently constituted in Matter No IRC 5299 of 1998.” 33 These principles were applied in a Judgment of the Crown Employees Apeal Board. at the time of the event and the subsequent failure to include that aspect in a description when he was asked for all particulars. 37 Mr Hull submitted that the applicants in all matters earlier referred to were trained medical or nursing staff with appropriate qualifications to deal with psychiatric patients. The Tribunal considers the circumstances of this case do not permit any result other than one which demonstrates that assault by employees of persons resident in State institutions will not be tolerated. contributed to by the events of the day commencing with the punch to her face compounded by the injury to her wrists and triggered by the spit in her face. and an exercise in deceit. are indicative of a violent disposition by the applicant. specifically whether he had said anything.

42 I find on the evidence of the applicant. the applicant was punched and spat on a number of times by the patient and exhibited appropriate restraint. in a forward thrust rather than swinging arm motion. however. 44 Mr Drinan’s action was wrong. 45 At the time the applicant struck at the patient. This did not occur on any account of the event. given the differences in size. leading to the view that the applicant’s action was a restrained and defensive response to the provocation and surprise of the patient spitting in his face. supported by Dr Kable. CONSIDERATION 40 There is no dispute between the parties that the action of the applicant was an instantaneous response to the patient spitting in his face. 46 Within the high standards of conduct required of health care professionals there must be an acceptance that actions in self defence are permissible in a measured and controlled manner. who readily conceded when put to him in cross examination. Mr De Meyrick put that I should regard this simultaneous comment as evidence of personal affront and retribution. He acknowledges that in these proceedings and by his subsequent conduct at the time of the event. that the action of the applicant is properly described as a cuff across the side of the head. There is no doubt that whilst the two patients were together the situation was deteriorating. 39 Mr Hull submitted that. . Subsequent to being spat on. rather than self defence. it is in my view more indicative of surprise. in all of the circumstances. which was the reason security officers were present. round arm motion. he uttered the expletive “you bitch”. There is some conjecture as to whether separating the two patients at the time was appropriate. the applicant being a large man and Miss “A” a slight girl. had the applicant hit her with a forceful.38 Mr Hull further submitted that the actions of the applicant in this matter are properly distinguished from those in the cases cited by characterisation of the actions of the applicant as defensive as opposed to retaliatory and correctional. above the hairline. The fact that this comment was not mentioned in earlier interviews is not properly held against the applicant. 41 On the evidence before me I find that the actions of Security Officer Drinan was not a slap on the side of the face of the patient. as found by the fact finding inquiry conducted by the respondent. the blow would have moved Miss “A” across the room or off her feet. 43 On the evidence of Dr Kable all staff were dealing with a risky and potentially violent situation. This interpretation is open. which had little if any physical effect.

47 Having regard to the lack of specific training. The termination of the applicant’s employment does nothing to maintain the high standards required of health care professionals. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday. 18 October 2002 Matter No IRC 4434 of 2002 The Health and Research Employees' Association of New South Wales (On Behalf of Robert John Drinan) and Hunter Area Health Service Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 270 . 52 Matter No IRC 4434 of 2002 is so concluded. I conclude that termination of the applicant’s employment was harsh. and security officers be put in place in order that security staff. the applicant’s good employment record. and that a clear protocol of communication between medical practitioners. nursing staff. in my view. 48 Termination of employment should not be considered as the only alternative open to an employer. are left in no doubt as to what is required of them by medical and nursing staff. in terms no less favourable than that occupied at the time of his termination. Whilst this experience has been unpleasant and harrowing. unreasonable and unjust. 50 I order reinstatement of the applicant to his former position. it adds to the experience of the applicant which need not be lost to the employer. 51 I order compensation of an amount equal to the ordinary time earnings from the date of the applicant’s dismissal to the date of reinstatement to employment. appropriate that specific education and training be developed for security officers engaged in the health care industry. and the defensive nature of his actions. when called to assist. 49 It is. without loss of wages or continuity of employment.

on terms no less favourable than those applicable had he not been dismissed.1. 3. Pursuant to s89(3) of the Industrial Relations Act 1996 I order Hunter Area Health Service to pay Mr Robert John Drinan an amount equal to the ordinary time earnings from the date of his dismissal to the date of reinstatement to employment. I so order. 2. Pursuant to s89(4) of the Industrial Relations Act 1996 the employment of Mr Robert John Drinan shall be regarded as unbroken by the dismissal. Pursuant to s89(1) of the Industrial Relations Act 1996 Hunter Area Health Service is ordered to reinstate Mr Robert John Drinan to his former position. The Hon R W Harrison Deputy President LAST UPDATED: 24/10/2002 .