YOUNG & ALHMWU v METROPOLITAN AMBULANCE SERVICE [1997] IRCA 81

DECISION NO:81/97 CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - OPERATIONAL REQUIREMENTS - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - ambulance officer convicted and sentenced for sexual offences - convictions appealed - whether reasonable to proceed to dismiss while employee in prison.

Workplace Relations Act 1996 (Cth) ss170DC, 170DE, 170EA

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Walton v Mermaid Dry Cleaners Pty Ltd (unreported, IRCA, Moore J, 24 October 1996); HEF of Australia v Western Hospital (1991) 4 VIR 310; Wadey v Y.W.C.A Canberra (unreported, IRCA, Moore J, 12 November 1996); Puccio v Catholic Education Office (1996) 68 IR 407; Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996).

YOUNG & ALHMWU v METROPOLITAN AMBULANCE SERVICE VI96/2425

Before: MURPHY JR Place: MELBOURNE Date: 18 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/2425

BETWEEN:

LESLIE ARTHUR YOUNG Applicant

AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION - AMBULANCE SECTION Applicant

AND METROPOLITAN AMBULANCE SERVICE Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 18 MARCH 1997 MINUTES OF ORDERS

THE COURT ORDERS THAT: [1] The application is dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/2425

BETWEEN:

LESLIE ARTHUR YOUNG Applicant

AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION - AMBULANCE SECTION Applicant

AND METROPOLITAN AMBULANCE SERVICE Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 18 MARCH 1997 REASONS FOR DECISION

The first applicant ("the applicant") seeks a remedy under s170EA of the Workplace Relations Act 1996 (Cth) (formerly the Industrial Relations Act 1988 (Cth))("the Act"). He alleges that on 3 September 1996 his employment was terminated without valid reason and without giving him the opportunity to respond to the reasons for the termination: ss170DE(1) and 170DC of the Act. The respondent contended that it had terminated the applicant's services lawfully for the reason that it regarded him, as a result of certain criminal proceedings against him, as unfit to perform the duties of an ambulance officer. The applicant is charged with criminal offences. The applicant joined the respondent in 1983 as an ambulance officer. He subsequently successfully completed a number of certificated courses relevant to his occupation. In late 1994 officers of the Victoria Police Child Exploitation Unit executed a search warrant at the applicant's house. The police later obtained statements from a number of under-age boys and the applicant was charged with a number of sexual and firearms offences. When the police inquiries were brought to the respondent's attention the applicant was placed on a period of special leave and subsequently taken off operational duties. He was placed on the reserve roster and then assigned to the respondent's South Melbourne workshops. His duties over the period late 1994 to June 1996 involved him mainly ferrying equipment and vehicles around various locations within the respondent's operations. He was under the supervision of the Business Manager of the Eastern Region, Mr Bartram. There was no formal job specification for the position, and although at one stage the applicant prepared a duty statement, it was common ground that it was not a substantive or long term position within the respondent's operations. The applicant is found guilty and dismissed. The applicant stood two trials before the County Court of Victoria. In April 1996 he was charged with three counts of indecent assault on two boys. He was found guilty on two counts and not guilty on a third. On 24 June he was found guilty on two further indecent assault counts of another boy, and not guilty on a third count. The applicant took leave for the duration of each trial. After the second trial he took annual leave. He was granted bail pending sentencing, and the court ordered a pre-sentence report. After the applicant's second trial, Mr Ryan, the respondent's Manager Emergency Operations, became aware of the matter as a result of a communication from Det. Cowden, the informant in the criminal proceedings. The information from Det. Cowden detailed the results of the two trials, the fact that some firearms offences were still outstanding, and that the applicant had prior convictions for sexual assaults on boys in the Northern Territory. Upon receipt of this information (Exhibit R1) Mr Ryan formed the view that the nature of the charges against the applicant was inconsistent with what the community expected of professional ambulance officers. He had knowledge of two previous cases involving ambulance officers found guilty of sexual offences and both had been dismissed. He therefore suggested to his superiors that the respondent terminate the applicant's employment. Ms Susan Smith, the respondent's Manager Organisational Development, investigated the applicant's recent employment history with the respondent. She checked his original employment application form. On it the applicant had been asked about "civil convictions" and had replied affirmatively. No follow-up had occurred. She sought advice from Ms Amanda McKenzie, the Manager Employee Relations, and wrote a memorandum to the Chief Executive Officer (CEO), recommending the applicant's dismissal. On 9th July the applicant was advised by the CEO that he had been given one month's notice (Exhibit R2). The letter read: "I wish to advise that as a result of the nature of your criminal convictions and impending sentencing the Metropolitan Ambulance Service has no option but to terminate your employment effective from 11 August 1996 providing one months notice." The applicant seeks reinstatement. The applicant brought the respondent's letter to the attention of the second applicant ("the union"). On 13 July Mr Steve McGhie, the Assistant General Secretary of the union, replied (Exhibit R20) noting that the applicant at that stage had not been convicted, but had been found guilty and was awaiting sentencing. He noted that the process was incomplete, and sought a retraction of the termination. On 8 August the CEO replied to the union (Exhibit R3) as follows: "I refer to your letter to me of 17 July 1996 concerning the termination of employment of Les Young. The Service is aware of criminal convictions for sexual assault by Les Young in 1978 and his being found guilty of fresh charges of indecent assault on 22 April 1996 and on 24 June 1996. As you are aware, the work of an ambulance officer involves attending to and transporting minors in vulnerable situations. Continuation of Mr Young's services given his convictions and being found guilty of fresh charges of indecent assault, would compromise the reputation and standards of the Service as well the Service's duty of care to its clients. While, it is considered the Service is unable to continue Mr Young's services we are prepared to meet with Mr Young and his representatives in order for him to provide a further response and to show cause why his services should not be dispensed with as previously advised. ...." A meeting was arranged. Before it Mr McGhie again wrote to the respondent (Exhibit R4) noting that the applicant had not been involved in operational duties for some considerable time and that he had an unblemished record at the respondent. He further noted that he was astounded that the respondent employed the applicant if it was true that he had criminal convictions for sexual assault. The termination decision is rescinded. On 8 August 1996 a meeting was held attended by the applicant and a personal friend, Mr McGhie, and from the respondent, Ms Smith and Ms McKenzie. There was some contention as to what, if anything, was agreed. The respondent's witnesses were adamant that they merely sought to listen to what the applicant and his representative had to say and made no commitments. The applicants were pressing for the termination to be reversed pending the sentencing decision and the outcome of any appeal. Mr McGhie accepted that the representatives of the respondent gave no undertakings. The applicant admitted that options were discussed and that there was no promise that in the event that he was eventually found not guilty, he would get his job back. He conceded that at one stage Ms McKenzie asked him whether, if at the end of the criminal process he was still found guilty, he would accept the decision and resign. He said he would. At the meeting the applicant advised that he intended to appeal the jury verdicts and expected the process to take two or three months. The applicant said that he was advised at the meeting to use whatever leave he had and the respondent would come back to him as to how he was to utilise the leave. The respondent's representatives did not accept that this occurred at the meeting. After the meeting Mr Roy, the respondent's Manager Corporate Services, wrote to the applicant as follows (Exhibit R5): "I am writing to advise you that your termination will be withdrawn by agreement effective 11 August 1996 as advised in the letter of 9 July 1996. This withdrawal is "without prejudice" and is subject to your pending conviction, sentencing and any potential appeal outcomes. Withdrawal of your termination is also subject to any further investigation that MAS may wish to undertake. This letter also serves to put you on notice that if you are convicted and any appeal is dismissed you will be asked to show cause why termination of your services should not proceed giving effect from date of conviction. Post your meeting with Amanda McKenzie and Susan Smith on 8 August 1996 MAS has no difficulty in you continuing on recreation or other approved leave until the court processes are resolved or until further notice. Prior to expiration of leave entitlements please advise MAS of your intentions." Although dated 9 August, the letter was not posted until 12 August. Mr McGhie received a draft of the letter and discussed its contents with Ms McKenzie. Following this conversation, on 10 August the applicant had a telephone conversation with Mr McGhie. Mr McGhie said that both he and the applicant had an understanding that the applicant would receive some correspondence from the respondent regarding "the way he would take his leave configuration". He told the applicant "to advise the (respondent) on a daily basis.... on how he was to take his time off." After receiving the withdrawal letter (Exhibit R5) Mr McGhie wrote to the respondent (Exhibit R6): "(The union) acknowledges that MAS have withdrawn the termination notice on a "without prejudice" basis, and MAS reserves its rights pending any potential appeal outcomes. The (union) also reserves its rights on any future appeal outcomes and actions. While Mr Young has sufficient leave entitlements he will continue to use them. If Mr Young's leave entitlements expire prior to the Court process completion, then the (union) expect that MAS would provide Mr Young with suitable and meaningful employment. I suggest that this issue be regularly reviewed between the parties to avoid any potential conflict." Neither Mr McGhie nor the applicant had any further discussion or communication with the respondent regarding leave pending the outcome of the appeal. The applicant is sentenced and asked to show cause. On 12 August the annual leave that the applicant had taken after the second trial was due to conclude. On 13 August the applicant was sentenced to four months imprisonment. He instructed his lawyers to appeal. Also on 13 August Ms McKenzie sought details from Mr Bartram, the applicant's manager at the respondent, of what discussions he had had with the applicant in relation to the charges against him (Exhibit R18). Mr Bartram replied (Exhibit R19) that he had informally discussed the outcomes and consequences that "might arise if the allegations proved correct and he was gaoled as a result". He advised that the applicant "understood that the worst case scenario was that his job could be on the line". On 21 August Mr McGhie had a conversation with Ms McKenzie during which she said he advised her that the applicant was out on bail. Mr McGhie denied he said this. He said he understood that because the applicant intended to appeal and seek bail, he thought he would only be in prison for a day or so. Ms. McKenzie telephoned Det. Cowden and ascertained that the applicant had been sentenced to and was serving a term of imprisonment. She also sought further details of the nature of the charges. She was advised that they related to sniffing of young boys. Det. Cowden also advised that another minor had made a statement regarding anal penetration but his evidence had not been allowed to be adduced at the trial. Upon receipt of this information there was a discussion between Ms McKenzie, Mr Roy, the CEO, and Ms Smith. The matter was also raised at a weekly industrial relations meeting. A decision was taken to require the applicant to show cause why his employment should not be terminated. On 23 August a letter was sent to him from Mr Roy (Exhibit R9) ("the show cause letter"). It read: "Further to my letter 9 August 1996 and following upon my further enquiries, and having regard to the nature of the convictions, and the outstanding charges pending against you, I have grave concerns for MAS and it's (sic) liabilities, should it continue to employ you. In view of the seriousness of your offences and our concerns about your conduct during working hours it is proposed to terminate your service unless you are able to provide us with a satisfactory reason for not doing so. The allegations made against you are that: 1. You stood trial for Indecent Assaults on two boys in the Melbourne County Court on 22 April 1996. You were found guilty of these offences. 2. You again stood trial in the Melbourne County Court on 24 June 1996. This was for further Indecent Assaults on another boy. You were found guilty of these offences also. 3. There are firearm offences still pending against you. 4. On Tuesday 13th August 1996, you were convicted and sentenced at the Melbourne County Court on four counts of indecent assaults. 5. You have been sentenced to a total of four months imprisonment for these matters. In view of the foregoing matters you are considered an unfit person for employment as an Ambulance Officer in Metropolitan Ambulance Service (MAS). Unless you can provide a good reason for continuing your employment MAS proposes to terminate your services. Any written submission you wish to make in relation to the above matters should reach me on or before 5.00 pm Monday 2 September 1996. In the absence of any response by you, your employment will be terminated." Mr Roy gave evidence that at the time that the respondent wrote the show cause letter it considered whether the applicant could be placed elsewhere within the organisation and found that no position was available where he would not have access to the respondent's identification and uniform. Mr Roy's reason for the decision to ask the applicant to show cause was that the public was entitled to some assurance that the respondent had ways and means of protecting it from the type of things that the applicant was alleged to have done. The respondent, he said, had a reputation to protect and he mentioned that parents trust ambulance officers with their children. He rejected the view that the respondent should have waited until the resolution of the appeal procedures. He had discussed the matter with Mr McGhie who said, in effect, that the appeal process could go on forever. Mr Roy said that the sentencing of the applicant to four months imprisonment was the turning point and the respondent had to act. The respondent sent the show cause letter by certified mail to the applicant at his father's address at Maryborough. At that stage the applicant was in Pentridge Prison. On 26 August a copy was sent to Mr McGhie. Mr McGhie said that he referred the correspondence to Messrs Phillips Fox, the solicitors who were acting for the applicant in the criminal proceedings. On 30 August the solicitors advised Mr Roy (Exhibit R11) that they did not act for the applicant in the matter of his employment. They noted that an appeal against the conviction and sentence had been filed and requested that the termination be deferred until the applicant was able to gain adequate advice or representation. On 30 August Ms McKenzie sought from the solicitors (Exhibit R22) a copy of the grounds of appeal to confirm whether "the applicant was denying the conduct which he had been charged and convicted of", to allow further consideration. No reply was received. On 3 September 1996 the applicant was advised by Mr Roy as follows (Exhibit R13): "Further to my letters dated 9 July, 9 and 23 August 1996 and following upon further enquiries I note that at no stage have you or your representative provided MAS with a satisfactory reason not to terminate your services. Since the 9 August 1996 MAS has given you the opportunity of applying for either approved leave or leave without pay which you have sought not to take up. In view of the seriousness of your offences and the subsequent conviction and sentencing MAS is not prepared to provide you with paid leave. Due to the absence of any application for leave without pay or any explanation satisfactory or otherwise, MAS has no other option but to terminate your services forthwith. A statement of your legal and statutory entitlements will be provided at a later date." Findings: Reason for the termination. There is no real challenge to the respondent's evidence as to the reason for the termination. The respondent's evidence satisfies me that based on the applicant's conviction and sentence the respondent reached the conclusion that its corporate interests were incompatible with the continued employment of the applicant. Mr Roy was quite frank in his evidence when he said: "my decision in this was to protect the reputation of (the respondent) and other ambulance officers, (and to) minimise the risk....". The reputation was that "the public needed to be given some assurance that we had means and ways of protecting them.". The risk he was referring to was the risk of the applicant having access to ambulance identification, and thus having the opportunity to abuse the public trust accorded to ambulance officers. In reaching the conclusion that he did, Mr Roy said he relied on the opinion of a number of managers who spoke to him, as well as the briefings he had been provided by Mr David Ryan, Ms Smith and Ms McKenzie. Issues for determination. The central issue is whether the "judgment" made by Mr Roy that it was no longer viable to have the applicant as an ambulance officer and the path that led to that outcome, contravened the Act. Thus the real contest went to the manner, timing and validity of the termination. The applicant argued that the manner in which the termination was effected contravened s170DC of the Act because the applicant was in prison and could not respond to the allegations. Further, it was argued that its timing was premature because it occurred contrary to an agreement that it would not occur before the resolution of the criminal charges. It was argued that the applicant should have been placed on leave or allowed to remain in his duties at South Melbourne until then. It was submitted that proceeding in the face of the agreement and the alternatives destroyed the validity of the reason for termination and thus was contrary to s170DE of the Act. Did the respondent agree to stay its hand? The argument in relation to the manner of the termination requires a finding as to the meeting of 8 August. I accept the respondent's version of that meeting over that advanced by the applicant. In particular I am satisfied that there was no agreement or undertaking given by the respondent in relation to the future of the applicant's employment at that meeting. As the applicant himself conceded, the meeting was to explore options. Mr McGhie, on behalf of the applicant, was seeking to have the original termination rescinded pending the sentencing and conclusion of the criminal proceedings. It was the applicant's evidence that as a result of this meeting he was waiting for the respondent to revert to him about a "process" for him to apply for or be granted leave pending the resolution of the criminal proceedings. I am unable to accept that this was the upshot of the meeting. I accept the evidence of Ms Smith and Ms McKenzie that no undertakings were given at that meeting. In particular, I am satisfied that the respondent gave no undertaking that it would grant the applicant leave pending complete resolution of the criminal charges, or that it was for the respondent to take the next step in relation to the applicant's leave status. I am therefore satisfied that the letter dated 9 August (Exhibit R5), which was forwarded to the applicant on 12 August, represented the respondent's position following that meeting. The applicant was reinstated but it was "without prejudice". Further, it was for the applicant to apply for any leave that he may require. This is confirmed by Mr McGhie who gave evidence he advised the applicant "to advise (the respondent of his position regarding leave) on a daily basis". It was also confirmed, to some extent, in Mr McGhie's letter to the respondent of 12 August (Exhibit R6), copied to the applicant, that "while (the applicant) has sufficient leave entitlements he will continue to use them up." In evidence the applicant confirmed that he had been told to "take a day by day basis (sic) of my leave entitlements". The applicant said he did not receive the respondent's letter to him of 9 August until he was released from prison in September. The applicant was on annual leave until 12 August. At that time he had vacated his flat in Melbourne in case the court decision went against him. He left Maryborough on 12 August to attend the County Court for sentence on 13 August. He did not indicate whether he received a copy of Mr McGhie's letter dated 12 August. It was the applicant's evidence that he had no contact or communication with the respondent after the meeting on 8 August until he was released from prison on 19 September. He said that at that stage he was advised by his father that there were three letters waiting for him at Maryborough. He said these were the respondent's letters dated 9 August, 23 August and the termination letter dated 3 September. He said when he was in prison he was visited by a friend but not by his father. The respondent cannot be criticised for the failure of the applicant to receive the letter of 9 August. It forwarded it to the applicant at the only address it had for him. It also forwarded it to Mr McGhie who had been representing the applicant throughout. I am satisfied that the respondent was entitled to proceed on the basis that the applicant had notice of the contents of that letter. Was the respondent entitled to shift its position after sentence? In its letter after the meeting of 8 August the respondent reserved its right to undertake further investigations of the matter. The letter also states that the respondent was prepared to grant leave "until the court processes are resolved or further notice". The letter thus places on the applicant an obligation to apply for leave, and reserves the respondent's right to approve that leave or take further action in relation to the applicant's employment. Mr McGhie's letter in response (Exhibit R6) does not fully reflect the respondent's position when it states that "MAS reserves its rights pending any potential appeal outcomes". The respondent shifted its position in relation to the applicant after he was sentenced to a term of imprisonment. Mr Roy saw the sentence as crossing a threshold and proceeded to require the applicant to show cause. At that stage Ms McKenzie had undertaken further enquiries into the details of the offences by contacting Det. Cowden. The matter was then discussed within the respondent and it then sent the show cause letter. The question is whether the respondent was entitled to alter its position and to proceed in the way it did? I am satisfied that it was. That the respondent was entitled to alter its position as events unfolded follows from my finding that there was no agreement by the respondent at the meeting of 8 August that it stay its hand. The respondent was also entitled to proceed to do so because of my finding that the applicant had notice of the contents of the letter of 9 August. The next issue that must be determined is whether the respondent in reaching the conclusion that the applicant's services be terminated, accorded him an opportunity to respond to the reasons for his termination. Was the applicant given an opportunity to respond to the allegations? The respondent contended that the applicant was given an opportunity to respond to the allegations before he was terminated. Counsel referred to the show cause letter of 23 August, which was copied to the union. The applicant maintained that the Act had not been complied with because he had never received the show cause letter, and he was in any event in prison. Mr McGhie said he did not see it as appropriate for the union to respond to the show cause letter. He referred it to the solicitors although they were not acting for the applicant in relation to his employment. In scrutinising the actions of the various players here it should be recalled that it has been authoritatively stated on many occasions in the court that the provisions of the Act are to be applied in a practical manner in actual work places where each party has rights, duties and responsibilities: see, eg. Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. Here the duty of the respondent was to act in the manner expected of a reasonable employer. The corresponding duty of the applicant was to act reasonably and with his own interests within the employment relationship in mind. It is now necessary to consider the communications between the parties from the time the applicant was reinstated until he was dismissed. From 9 July the applicant knew that his employment had been terminated unless the respondent reversed the position. At the meeting of 8 August no agreement or undertaking was made that the termination decision would in fact be reversed. I am satisfied that the applicant was told at that meeting that if the decision was reversed it would be "without prejudice" to any further action the respondent might choose to take. The position thenceforth was set out in the letter of 9 August. It was for the applicant to apply for any leave necessary to maintain that his employment. It is a reasonable inference that the applicant, who had been employed for over twelve years, knew that he had to approach the respondent to obtain leave after his annual leave expired on 12 August. From that date he was expected to attend for duties. It follows that I regard the applicant's failure to approach the respondent, his solicitors in the criminal proceedings, or Mr McGhie, in the period between 10 August and 9 September to apply for leave, as inexplicable. While clearly prison would have been an unfamiliar experience for him, I am surprised he took no action to contact the respondent. He made no telephone call. It is mystifying that he took no action at all to ensure that correspondence was brought to his attention. Similarly I find it surprising that the union took no initiative to contact the applicant to ascertain whether he had received the show cause letter and what if any assistance he needed in relation to it. Mr McGhie gave evidence that he had a heated telephone call with Ms McKenzie after he received a show cause letter, expressing surprise that the show cause letter had been sent while the applicant was in prison. Ms McKenzie denied that this conversation occurred at that stage and maintained that the conversation occurred after the actual termination on 3 September. On this matter I accept Ms McKenzie's evidence. I do so on the basis that she stated that in the conversation Mr McGhie said that the union would take an unfair dismissal case. I find it unlikely that he would have made that statement when the dismissal had not occurred at that point. Even if I am wrong on this point, it is to be noted that Mr Roy gave evidence that he discussed with Mr McGhie the fact that the applicant thought the appeal process could take several months. Mr Roy's evidence was that when Mr McGhie conceded this, he then said "well the risk is too high for us". It was soon after this conversation that the respondent then proceeded to dismiss the applicant. Mr Roy also gave evidence of a conversation with another union official at this time, Ms Forbath. In considering whether there has been an opportunity to respond here, all the events, commencing with the original letter of termination of 9 July (Exhibit R2), must be considered. The matters of concern to the respondent were put in that letter, in the letter to the union of 8 August (Exhibit R3), and the show cause letter. The union was involved at all stages. The applicant denied himself the opportunity to put any matters to the respondent after 8 August by his failure from that time to make any contact with the respondent, or to direct others to make contact with it on his behalf. Next it is reasonable to conclude that the union was acting on his behalf in relation to this matter. Mr McGhie was aware of the respondent's position. He had been at the meeting of 8 August and had a conversation with Ms McKenzie subsequent to that to discuss the wording of the retraction letter of 9 August. Mr McGhie also received a copy of the show cause letter. In response to that letter he had a discussion with Mr Roy. Mr McGhie's evidence was that he referred the matter to the solicitors for a response. I am satisfied that he could have discussed it with the applicant but took no steps to do so. It should be noted that the show cause letter essentially set out the same reasons for the respondent's decision as those contained in the original termination letter of 9 July (Exhibit R2). Mr McGhie had responded to those matters in his letter of 17 July (Exhibit R20), and at the meeting of 8 August. Here the substantive but not necessarily formal requirements of s170DC of the Act have been complied with. The respondent took reasonable actions in the way it sought to communicate with the applicant. It communicated with the union. To the extent that the applicant failed to receive the actual letters, he has himself to blame due to his failure to make even a modicum of an effort to communicate with the respondent or to direct others to do so on his behalf. At the time the applicant alleges the respondent failed to give him an opportunity to respond, he was serving a four month prison sentence, had made no application for leave of any sort, and had not made any effort to establish lines of communication with his employer. He received a "fair go" from the respondent. If it was necessary to do so, I would find that the respondent was, in the circumstances, entitled to be relieved of its obligations and to rely on the provisions of s170DC(b). The applicant has not made out a breach of s170DC of the Act. Valid reason - was the termination justified? The respondent carries the onus of proof that it had a valid reason to terminate the applicant's employment. The thrust of the applicant's attack on the validity of the respondent's decision was the timing. I have earlier stated that at the time the respondent terminated the employment it had received no application for leave from the applicant. It had also not received any substantive response to its provisional conclusion that based on the convictions and sentence the applicant was unfit to be an ambulance officer. What it had received was advice from the applicant, and later his solicitors, that he would appeal the convictions and sentence, and was intending at some undefined date to make a bail application. Further, at that time the respondent had concluded that the resolution of the criminal proceedings might take many months. It is in these circumstances that the issue is whether the respondent's decision at the time can be characterised as valid, justified or defensible. I have already referred to the evidence on the reason for the termination. The respondent concluded that the retention of the applicant, given the criminal proceedings, was incompatible with its reputation and its proper operations. It was not prepared to risk its reputation by having the applicant as its employee. It could not find a suitable position for him where that risk was not present. The applicant's position was that the respondent should have stayed its hand on the termination by granting the applicant leave, or allowing him to continue with his duties at the South Melbourne workshops pending the resolution of the criminal proceedings. The applicant's evidence was that he had indicated that if at the end of the process the convictions remained, then he would resign. If he was successful in his appeal then he would negotiate a return to duties. The Court not in managerial chair. The reasoning process of the respondent here must be considered at the time, rather than with the benefit of hindsight. It is the respondent's decision on the material before it that must be valid. The applicant is not entitled to rely in these proceedings on the fact that he was released from prison in September following a successful bail application, and that in December the Court of Criminal Appeal quashed the convictions and ordered a retrial. This is confirmed by these comments in Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996): "An employer of a health worker or child care provider against who was made an allegation of serious physical abuse that threatened the health and safety of those in that person's care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator's employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?" In Walton v Mermaid Dry Cleaners Pty Ltd (unreported, IRCA, Moore J, 24 October 1996), Moore J said: "....it is not the Court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee's capacity or conduct, ..." In Wadey v Y.W.C.A. Canberra (unreported, IRCA, Moore J, 12 November 1996), which dealt with a termination on the grounds of misconduct, Moore J said: "It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s170DE(1)." In Puccio v Catholic Education Office (1996) 68 IR 407 at 417 von Doussa J said: "On the other hand the care, safety and well-being of students is a matter also entitled to great weight. Where a teacher commits a clear breach of a direction squarely related to safety and welfare issues after due warning, the school, generally speaking, will be left with no option but to terminate the services of the teacher. To allow the teacher to continue would be to allow a foreseeable risk of further transgression by the teacher to occur. The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee's capacity or conduct within the meaning of s170DE of the Act to dismiss an employee even where reported misconduct is disputed by the employee: see Sangwin v Imogen (unreported, Industrial Relations Court of Australia, von Doussa J, 8 March 1996)." I intend to apply these authorities. Here the key decision maker was Mr Roy. I accept his evidence of his discussions with Mr McGhie after the show cause letter. At that point Mr McGhie accepted that the outcome of the appeal process could be many months and that in any event the outcome was uncertain. I also accept the respondent's evidence as to its response to those events. It put the need to protect its reputation ahead of the interests of the applicant remaining within its employment. It did this in circumstances where there was no position available which would, in the respondent's view, sufficiently protect the public against the possibility that the applicant may commit an offence. This was despite the fact that in connection with his duties as an ambulance officer, the applicant had an unblemished record during his period of service. That was a matter of judgment that was open to the respondent. In characterising the respondent's conclusion the verdicts and sentence cannot be ignored. The respondent had only cursory details of the minutiae of the alleged offences but it was entitled to rely on the fact that a higher court had seen fit to sentence the applicant to a term of imprisonment for those offences. Although the offences had apparently not occurred during working hours, the respondent legitimately concluded, as set out in its letter to the union on 8 August 1996 (Exhibit R3) that the fact of those offences compromised its reputation and created a need for it to take action. The legal test is whether the actions of the employee had "any relevant connection to the performance of the duties" : HEF of Australia v Western Hospital (1991) 4 VIR 310 at 324. I am satisfied that it was open to Mr Roy to conclude that the conviction and sentence of the applicant did "compromise the reputation and standards of the Service as well as the Service's duty of care to its clients" (Exhibit R3). Next the applicant had at no stage put to the respondent anything that would allow it to place the matter in any different light than the convictions and sentence. The applicant had indicated that he intended to appeal the verdicts. That was always to be a lengthy process and the convictions and sentence stood until that process was concluded. Again, the decision to proceed before the conclusion of the criminal proceedings, absent an agreement to the contrary, was a matter of judgment that, given the events that occurred, was open to the respondent. It is not for the Court to sit in the managerial chair on the issue. I am satisfied that the decision to dismiss the applicant was reached after a considered process that involved the applicant in an opportunity to respond to the reasons for his termination. It was a logical response to the conduct of the applicant and was based on the respondent's operational requirements. The decision of the respondent was sound, defensible and well founded. The respondent has not breached s170DE(1) of the Act. The application is dismissed. I certify that the preceding twenty (20) pages are a true copy of the reasons for decision of Murphy JR.

Associate: KAREN HALSE Dated: 18 March 1997

APPEARANCES

Counsel appearing for the applicant: MR C F THOMSON Applicant's representative ALHMWU

Counsel appearing for the respondent: MR B LACY Respondent's representative: METROPOLITAN AMBULANCE SERVICE

Date of Hearing: 7 & 10 FEBRUARY 1997 Date of Judgment 18 MARCH 1997