Private out of hours conduct and unfair dismissal

The New South Wales Industrial Relations Commission has upheld the dismissal of a paramedic you attended an anti lockdown Covid protest in her own time because inter alia she livestreamed and was held to have been responsible for damaging and offensive commentary which she published on social media including about the role of the police in the event on the basis that her comments about the police “might make it difficult for police officers to feel comfortable working with her in the future”. The Commission accepted that “[i]t is difficult to imagine a more serious case of misuse of social media”.

Here is an extract from the decision.

Legislation and legal principles

  1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is “harsh, unreasonable or unjust”. It is now well accepted that each of the words “harsh”, “unreasonable” and “unjust” requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61:

“21.   …It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a ‘tautological trinity’. As it was stated in Byrne:

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 employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

  1. While my consideration of this matter is informed by the above passage, I find the following observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 to be instructive:

“6.   The meaning of the words ‘harsh, unreasonable or unjust’ has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd’s Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465.”

  1. Section 88 of the Act sets out matters which the Commission may, in determining a claim, take into account. It is not necessary that the provision be reproduced.
  2. To be entitled to any remedy under the Act, the onus is on Ms John to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
  3. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, as is the case here, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. The misconduct must be established on the balance of probabilities.

Consideration

  1. Ms John admits that she engaged in the conduct alleged against her. She accepts that her conduct amounted to misconduct.
  2. In her submissions in chief, Ms John made a number of criticisms of the investigation conducted by NSW Ambulance. She was taken to this in cross-examination and by me. She accepted that the matters she had raised did not change the outcome of the investigation, namely the finding that she had engaged in the conduct and that it was in breach of her obligations as an employee. I note, in any event, that a number of the criticisms fall away in light of Ms John’s admissions in respect of her conduct. For example, at par 17 of her submissions she contested the use of any witness statements in which her voice was identified. She submitted that the witnesses are “educated paramedics and had no education, training or qualifications in voice expertise”. However, she accepted in the proceedings today that it was her voice on the recordings.
  3. NSW Ambulance submitted that Ms John’s challenges to the investigation process called into question the extent to which the Commission could accept her assertions that she accepts full responsibility for her conduct. To my mind, they are more reflective of an individual who is not familiar with an adversarial litigation process and finds it necessary to put forward any arguments that she identified, rather than considering how they fit within the broader case theory that she was advancing.
  4. While it was not expressly couched in these terms, Ms John’s case really comes down to a question of whether her dismissal was harsh. This is a matter I put to her while she was giving evidence.
  5. As to her state of mind as at July 2021, Ms John relied on a number of factors. First, she had been suffering from the effects of a serious back injury in 2016, which had necessitated ongoing medical treatment and resulted in her being off work. She had only recently returned to work in June 2021.
  6. Second, in the beginning of 2021 she began to cope with the symptoms of menopause. Further, she had an adverse reaction to medication which had been prescribed for her, although I observe that the evidence as to that factor, including the impact that it was having on her as at July 2021, is almost non-existent.
  7. Third, she had to care for her brother who had become unable to live by himself due to end-stage chronic obstructive pulmonary disease.
  8. Fourth, a business which her husband had established in 2016 began to suffer during COVID, placing financial pressure on the family.
  9. The essence of Ms John’s case can be seen in the following extracts from her written submissions filed on 29 May 2023:

“In determining my appeal against my dismissal, I would ask the commission to consider the following. Whether my misconduct could be satisfactorily explained as an error of judgement rather than a defect of my character. The intrinsic seriousness of the misconduct in terms of the fitness to practice as there is no evidence to suggest that I cannot perform my duties. My conduct on the day was spontaneous (not pre-planned as suggested by the decision maker) and I had no intention of being identified as a paramedic nor any intent to cause harm.

Whether my misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of my normal qualities or character. The motivation which may have given rise to the proven episode of misconduct. I have repeatedly expressed remorse and have acknowledged the unacceptable nature of my conduct.

The suspension of my registration has had a significant impact and my conduct has been a source of significant embarrassment and shame for myself and my family. I have been without pay for a considerable period of time and have taken on much more menial employment at a significantly reduced income. I have for the first time in my 53 years lost my independence as a woman, having to rely on my husband for financial support which I have never had to do in my life. I plead guilty to the criminal charges, demonstrating a level of remorse and which also constitutes public denunciation of my conduct.

I sincerely apologise to the Police and the public for the inappropriate language I used during the TikTok live stream. It was very uncharacteristic of me as I have always had the utmost respect for the Police and the work they do for our community. I also sincerely apologise to NSWA for bringing the profession into disrepute. I attended the protest as a private citizen and had no intentions whatsoever to broadcast my role as a paramedic. My lack of judgment has resulted in negative exposure for NSWA, and I am profusely apologetic for my actions. I am extremely regretful of my conduct and will never repeat such actions again. It was a very turbulent period globally in the months leading up to July 2021 due to the plight of COVID- 19, which prompted me to attend the anti-lockdown protest after witnessing the impact of the lockdown on the community and my family. Personally, it was very challenging as our family business suffered tremendously due to the lockdown, and this was compounded by the health issues that are detailed above. I make no excuses for my unacceptable conduct, however, note that these are several factors which clouded my judgment and contributed towards my decision to attend the protest. Overarchingly, I am very ashamed of my conduct on 24th July 2021. It was out of character for me to behave in such an inappropriate manner.”

  1. In considering the seriousness of Ms John’s misconduct, I note the following considerations in particular.
  2. First, at the time she attended the protest, Ms John was required to self-isolate under the Self-Isolation Order. The evidence is clear that she was aware of this obligation but chose to ignore it.
  3. Second, the matters that I have just referred to which Ms John pleads in mitigation do not exonerate her from her conduct. They may help to explain why she felt it necessary to support her husband by attending the protest on 24 July 2021; they do not explain her decision to livestream the event, much less the damaging and offensive commentary which she offered to accompany it.
  4. Third, Ms John was identifiable and identified as a paramedic whilst the livestream was occurring. In the extract that I have already referred to, setting out comments that Ms John made during the livestream, the words from and after “And no we will not go home” appear to be in response to comments that were appearing on Ms John’s feed at the time. She can be heard calling into question not only the efficacy but the legitimacy of COVID vaccines. She accepted under cross-examination that these comments were made after she had been identified as a paramedic. Her response that she had stopped talking a few minutes later is simply not good enough.
  5. Fourth, NSW Ambulance read a statement of Wayne McKenna, the Director, Clinical Operations Metropolitan Operations at NSW Ambulance. Mr McKenna deposed that as at July 2021 paramedics were essential workers and so were allowed to leave their homes, but only to attend work or for other approved purposes. He stated that at that time paramedics such as Ms John were routinely exposed to COVID-19 in the course of their duties and so it was critical that procedures, including mandatory isolation, were maintained, so that the risk of paramedics spreading the disease was minimised. That is a further factor weighing in the consideration of the seriousness of Ms John’s misconduct.
  6. Fifth, Ms John accepted that her commentary was offensive towards police officers and, indeed, went so far as to incite violence against them. Mr McKenna gave evidence as to the significance of the working relationship between NSW Ambulance and NSW Police, which Ms John appeared to have accepted in her evidence, referring to having attended incidents with police on many, many occasions.
  7. There is no evidence before me from either Ms John or NSW Ambulance from NSW Police as to how that agency views the comments that Ms John made. I am prepared to infer, however, that the language adopted by Ms John and the incitement of violence might make it difficult for police officers to feel comfortable working with her in the future.
  8. Sixth, Ms John accepted under cross-examination that it was a requirement of both NSW Ambulance and AHPRA that she not engage in conduct, including via social media, that may undermine the national immunisation program. While the direct impact of Ms John’s conduct on vaccination efforts cannot be quantified, there was a considerable public reaction to it, including in the form of media attention and complaints to NSW Ambulance and the police.
  9. Seventh, and as NSW Ambulance submitted, you do not need a policy to know that what Ms John did was wrong. NSW Ambulance submitted, with some justification, that “[i]t is difficult to imagine a more serious case of misuse of social media”.
  10. Eighth, Ms John had previously received a warning and been subjected to other disciplinary action as a result of a breach of the NSW Ambulance Social Media Policy. While Ms John offered evidence to place this warning into context, it is not the place of the Commission in these proceedings to conduct a review to determine whether the disciplinary action taken in 2014 was justified or appropriate.
  11. Finally, there is the question of Ms John’s failure to report the suspension of her registration. This is not a matter that NSW Ambulance strenuously pressed during the course of the hearing and I think it is appropriate that it did not do so. Ms John admits that she failed to notify NSW Ambulance of the suspension of her registration. I accept that this was a breach of her obligations to NSW Ambulance. However, that breach has to be considered in light of the fact that, at the same time, Ms John’s employment had been suspended and further be tempered having regard to all else that was going on in her life at the time, including the significant public backlash against her behaviour.
  12. For all of these reasons, and to the extent that it is necessary to do so on the case presented by Ms John, I find that the dismissal was not unjust.
  13. As to the process culminating in her dismissal, Ms John was informed of the allegations against her and had every opportunity to respond to them. She was also given the opportunity to make submissions in relation to the disciplinary action that NSW Ambulance was considering taking against her. Again, to the extent necessary to do so, I find that the dismissal was not unreasonable.
  14. This leaves the question of harshness.
  15. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed:

“156.   I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee’s dismissal was ‘harsh, unreasonable or unjust’ as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be ‘harsh’, (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee’s part said to have justified the termination, but also to ‘weigh in the balance any “mitigating circumstances”…including length of prior employment, the employment record and favourable character considerations’.”

(Footnotes omitted)

  1. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench referred at [35] to the requirement to “consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances” or, in other words, to the necessity “to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the [applicant]”.
  2. I accept that Ms John has expressed remorse and contrition, including from the day of the protest itself. That is in her favour. However, it is qualified, to some extent, by the following submissions she made in reply in these proceedings:

“Management goes on and on about policies and procedures, all neatly tied up in a bow and emailed to the masses who are burnt out and not only during the pandemic. The problem with large organisations, the bigger they get the more policies and procedures and then throw in all the policies and procedures from all the linked organisations and you’re under a pile of red tape and paper. Only a robot would be able to decipher and take in all this information WHILST working a 4 x 12+ hr shifts per week. Do you really think an on-road paramedic who is up at 5am in the morning, works a 12 + hr shift has the time to read all the emails, policies, and procedures[?] …The majority of us working paramedics are out there just earning a living luckily doing something we love and are good at in order to put food on the table for our family whilst helping out community when they need us. Not the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them. Those in management and leadership roles often lose sight of the fact that people are not machines, systems or projects and cannot be ‘managed’ as if they are inanimate objects incapable of thought and emotion. When do you consider the ‘human factor’[?]”

  1. These submissions contain some echo of the comments made by Ms John during her livestream on 24 July 2021. Her reference to the “the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them” echoes the comments she made on 24 July 2021 to people “sitting on your arse there in front of your computer”.
  2. The submissions also call into question the extent to which I could have confidence that Ms John would abide by NSW Ambulance policies and procedures were she to be reinstated. There is more to being a paramedic than clinical, on-the-road skills.
  3. Ms John tendered a significant number of references or testimonials, attesting to her good character, going back over a number of years. Indeed, one goes back to Year 10 in high school. I have taken them into account.
  4. Ms John is 53 years of age. She described the “profound effect” that the dismissal has had on her, both financially and psychologically. In her submissions in-chief, she stated that the dismissal had significantly impacted her and her family, financially and emotionally. She described having faced widespread public scrutiny which had been tremendously difficult for her and her family. Whilst she acknowledged that these are the consequences of her actions and of which she holds herself solely responsible, she stated that, nonetheless, the backlash had severely impacted her across all aspects of her wellbeing. Ms John further stated that she is mentally, physically and emotionally drained, that she has lost approximately $120,000 since July 2021 and her family has suffered through her lack of income.
  5. In her oral submissions, Ms John referred to the loss of 18 years of employment as a result of the actions of one day. However, she acknowledged that “you cannot change what you have done but you have got to accept responsibility for what you have done and move on from it”.
  6. For its part, NSW Ambulance did not dispute Ms John’s evidence as to the financial, psychological or emotional harm that she has experienced as a result of being dismissed. It contends, though, in effect, that she is the author of her own misfortune and that is the consequence of her having engaged in this conduct in the first place.
  7. In “weighing these matters in the balance”, I am not persuaded that Ms John’s dismissal was disproportionate to the gravity of the misconduct in which she engaged. I have given careful consideration to Ms John’s expressions of remorse and contrition. However, the question is not whether the Commission ought to give Ms John another chance, but whether it was harsh for NSW Ambulance not to have done so.
  8. I find that the dismissal was not harsh.
  9. Having found that the dismissal was neither harsh, unreasonable nor unjust, the only appropriate order is that the application be dismissed. I so order.”

 

 

 

John v Health Secretary in respect of the Ambulance Service of NSW [2023] NSWIRComm 1073 per Sloan C delivered 26 July 2023