An appeal decision in June 2007, from the Full Bench of the New South Wales Industrial Relations Commission, New South Wales Nurses’ Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 highlights the need for employers to be aware that if they are looking to terminate an employee, many factors such as; previous employment history, training provided to the employee, and potential provocation should be examined.
Colin Prior (the ‘employee’) a registered nurse at Garrawarra Centre (the ‘employer’), applied to the Full Bench for relief against his instant dismissal for serious misconduct. The employer had dismissed the employee due to alleged violence towards a resident.
The resident, to whom the alleged assault occurred, was prone to aggressive and violent behaviour and was seriously restricted by a security chair.
The assault involved an altercation in which the resident allegedly lashed out at the employee. The employee reacted by allegedly twisting the residents arm, making contact on the residents head with his hand, and punching the resident.
The employee appealed a previous decision and on review, the Full Bench considered the evidence of the employee and a number of witnesses, and also took into account the following factors:
- the employees six years unblemished employment record;
- the implications of the dismissal on the employees future employment;
- the fact that the aggressive behaviour of the resident provoked a response from the employee, and;
- the resident was not injured in any way (suggesting that the employee’s reaction and response was at an appropriate level).
The Full Bench, on the basis of all evidence considered, concluded that the dismissal of the employee was harsh, unjust and unreasonable in all circumstances. The Full Bench commented that even though the employer failed to provide the 16 hours of mandatory training in the management of difficult and aggressive behaviour (as required by the Department of Health), their view was that nursing staff, teachers, police and prison officers do not need a structured training course to educate them not to assault a person in their care or under their control. It was their belief that this should be self evident and not require formal training.
Although this behaviour is deemed to be self evident by the Full Court, employers, particularly in the Health industry, should provide structured training to all employees on issues such as the management of difficult staff and aggressive behaviour. It may not be enough in other situations to rely on the common sense of an individual.
Occupational Health and Safety Legislation also requires employers to provide their employees with information, instruction and training necessary to ensure their health and safety requirements are met.
This decision serves as a reminder to all employers to consider all factors when terminating for serious misconduct.