DECISION NO:573/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - employee dismissed for gross MISCONDUCT - whether there was evidence of conduct supporting a finding that the employee’s acts or omissions were deliberate - whether there was gross neglect of duty leading to injury to and the loss of experimental animals - EVIDENCE - whether the evidence of the other employees based on their training and experience admissible to establish likely cause of injury to and death of animals
Industrial Relations Act 1988 s 170DE(1)
Prevention of Cruelty to Animals Act 1986
Evidence Act 1995 ss 79, 135
Macken, McCarry & Sappideen, The Law of Employment (3rd Edition, 1990, Law Book Company)
Victoria & Ors v The Commonwealth (1996) 66 IR 392
Schaale v Hoechst Australia Ltd (1993) 47 IR 249
Nicholson v Heaven & Earth Gallery Pty Limited 1 IRCR 199
Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Boland v Maningrida Council Inc. (1996) 66 IR 382
JAMES ROSEBURGH - v - CSL LIMITED
No. VI 1212 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 27 November 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1212 of 1996
B E T W E E N :
JAMES ROSEBURGH
Applicant
A N D
CSL LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 27 November 1996
THE COURT ORDERS THAT:
1. The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1212 of 1996
B E T W E E N :
JAMES ROSEBURGH
Applicant
A N D
CSL LIMITED
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 27 November 1996
REASONS FOR JUDGMENT
In this case the applicant seeks reinstatement to his employment in the respondent’s area of Animal Technical Services. He does so on the basis that he alleges that the termination of his employment by the respondent on 18 January 1996 with the payment of four weeks’ compensation in lieu of notice, contravened Division III Part VIA of the Industrial Relations Act 1988 (the Act). With the advent of the High Court decision in Victoria & Ors v The Commonwealth (1996) 66 IR 392 the applicant’s allegations are confined to a breach of section 170DE(1) of the Act. He makes no allegation pursuant to section 170DC of the Act.
In opening its case the respondent alleged that there was an incident amounting to gross neglect of the applicant’s duties; in other words, he was negligent in the performance of his duties on particularly 21 December 1995, and this justified the termination the respondent effected. As will be seen from the evidence canvassed in these reasons for judgment, the reason for termination was, in fact, gross misconduct referred to in the recommendation to terminate the applicant’s employment given by the Human Resources Manager Pharmaceuticals, Kelvin Peter Milroy (Milroy). It was this recommendation that was adopted by the General Manager of Pharmaceuticals, Stanley McLeish. The distinction between the two grounds of dismissal is an important one because the first refers to accidental conduct, whereas the second, as is apparent from the written recommendation made to terminate, refers to serious misconduct containing as it does an element of deliberate or intentional misconduct on the part of the applicant.
This was a difficult and emotive case because it touches upon the care and treatment of live animals used by the respondent to develop antivenoms and serums. The welfare of the animals used in experiments is a serious matter and one which is the subject of legislation in Victoria; namely, the Prevention of Cruelty to Animals Act 1986. It is also the subject of a Commonwealth Code of Conduct known as the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes.
In accordance with the Victorian legislation the respondent holds a licence to engage in its experimental activities and, as required, has an animal ethics committee to oversee the issues relating to the welfare of the animals used in experiments (see generally Part 3 of the Prevention of Cruelty to Animals Act 1986). Obviously, it is important both to the community and the respondent that the respondent’s employees perform their duties in a manner which maintains a high standard of care in the handling of its animals both because of the consequences suffered by the animals and the respondent should it fail to pursue and enforce appropriate procedures for handling the animals.
To decide this case what I am required to do is to determine whether particularly on 21 December 1995 the applicant’s handling of three rabbits amounted to conduct justifying termination. If I am satisfied on the balance of probabilities that there was at least gross neglect in the way in which the applicant performed his duties, I must also be satisfied that it is probable that this neglect caused or contributed to the injury of all three rabbits and the loss of two of the animals who died allegedly because of the injuries sustained.
BACKGROUND
The respondent is the privatised version of the former Commonwealth Serum Laboratories and conducts scientific procedures involving animals. These animals are used to develop the vaccines and serums human beings require to treat; for instance, poisoning from spider bites.
The respondent is divided into a number of areas of operation, one of which is the Animal Services Area. In turn this area contains an Animal Technical Services Division devoted to both the care of the animals such as feeding, watering and cleaning their cages as well as procedures by the animal technicians to inoculate or dose the animals with amounts of venom and bleed the animals to obtain hyperimmune blood for the manufacture of vaccines and serums.
In this case the Court was only concerned with the bleeding of a group of three rabbits (Group B, rabbits numbered 272, 344 and 345) which were part of a larger group of rabbits referred to as the Funnel Web Rabbits. The Funnel Web Rabbits are used to make an antivenom serum for funnel web spider bites.
A protocol is prepared in respect to the groups of animals used setting out the procedure and the work to be performed. In this instance it was a typed sheet sent to Animal Technical Services and it sets out the procedures to be performed over a forty week period (see Exhibit R1).
The animal technicians treat the protocol as a schedule and they dose with both a freund adjuvant to stimulate the production of anti-bodies and with venom, then bleed and rest the groups of rabbits each week according to the schedule provided. The Group B rabbits were commenced on the particular procedure on 12 October 1995 and were injected with an incomplete freund adjuvant and funnel web venom, rested and bled over the period from that date until 21 December 1995.
The protocol document and the funnel web spider dosing and bleeding record (Exhibit R2) show that each rabbit was bled on two occasions prior to 21 December 1995. The first bleed was a test bleed on 7 December 1995 and it was followed by a bleed on 18 December 1995 which involved collecting in a test tube an amount of blood from each animal and sending that to another department.
Exhibit R13 is a document from the respondent’s Quality Assurance Department which shows that on 18 December 1995 twenty-two, twenty-eight and twenty-nine millilitres respectively of blood were collected from each rabbit and used to produce a batch of serum. The bleed on 21 December 1995 shows the collection of thirty-six, thirty-six and thirty-seven millilitres respectively of blood from each rabbit; although it was agreed that on that date the request for collection of blood had been for forty millilitres of blood from each animal. The applicant who conducted the bleeding did not record, as he was required to, the amount of blood he obtained from each animal. This oversight is just one indication of his failure to follow procedure on that date.
For more than twenty-five years the technique adopted by the respondent to collect blood from rabbits is that involving withdrawal of blood from an ear vein utilising a vacuum flask and centrifuge tube. This practice, it was said, does not endanger the life of the rabbit unless there is excessive exsanguination and, importantly, the procedure can be conducted with little distress to the animal involved. In summary, the procedure requires an operator to restrain the animal in a sawdust bag, smear vaseline on an ear to bring up a vein and to stop clotting, before nicking the vein with a scalpel. The ear is then placed into the vacuum flask and a water tap is turned on to create the necessary vacuum for the flow of blood. The blood flows into the collection test tube and the pressure in the vacuum is read from an attached gauge and maintained by the operator within particular limits marked on the gauge by allowing more or less air into the vacuum flask or varying the flow of water from the tap.
It was agreed that the procedure with rabbits is one which is usually carried out by two operators, however, one operator is permitted to perform the procedure because it is accepted that it can be done safely by one person without risk of causing harm or distress to the animal. The applicant and all the respondent’s witnesses who had performed this procedure before had done so by themselves from time to time. This is the not the case where puppies or dogs are involved because they are less tractable and are likely to struggle during a bleeding procedure where blood is taken from a leg vein. With the rabbits once an amount of blood up to the limit requested is collected, the ear is removed from the vacuum flask and cotton wool is held over the nicked vein for a short period to stem the blood flow. The fact that the applicant was required to perform the procedure on his own on 21 December 1995 indicates that the department was particularly busy that morning and it may also go some way to explaining the failure to record the amounts of blood collected.
At the date of termination of his employment on 18 January 1996 the applicant was employed as an animal technician in the Animal Technical Services Division of the respondent’s operation. He was then an employee of some six years standing who had received warnings both in 1994 and 1995 concerning his conduct and performance. The 1994 warning was in writing and was the second warning given because of his defiance of an instruction not to wear overalls in the canteen. In May 1995 he received a disciplinary warning relating to:
(a) inadequate work performance. This concerned the failure to properly feed, water and clean animal cages on a day when the other two staff in his area were absent;
(b) abusive language. This concerned the use of abusive language towards both his officer-in-charge, Terry Couzens (Couzens), and the manager of animal services, Rodney George Thickins (Thickins), when he was questioned about the failure to properly perform his duties; and
(c) inappropriate and unauthorised work practices. This last matter concerned the bleeding of a puppy without the assistance of another person. It is the respondent’s policy to carry out this procedure with two persons so that the animal is properly restrained and unlikely to suffer distress during the bleeding procedure. This incident allegedly occurred on the same day as the applicant was required to perform the feeding, watering and cleaning duties for the animals on his own and he failed to meet the required standards in performing these duties. Although the applicant denied at hearing that he had been trained to perform this procedure with two people, I am satisfied on the evidence of Couzens that the applicant was in 1995 properly trained in the procedures he was undertaking. His claim that after he bled the first of four puppies by himself without incident, he then went and got assistance from another department to complete the procedure indicates to me that he probably did have difficulty with the first bleeding and clearly understood that it was necessary to obtain assistance.
The disciplinary warning given on 15 May 1995 alerted the applicant to the possibility of demotion or termination should “any further instances” occur (Exhibit R7). At hearing the applicant denied ever receiving a copy of the warning and a letter dated 30 May 1995 from his employer which was a response to an earlier letter from the applicant to Milroy seeking to apologise as well as to challenge the criticisms of his performance. In listening to the applicant’s evidence, it seemed to me that he sought, first, to blame those who worked around him once any problems arose and, secondly, he tended to avoid conceding any matters which might harm his case against the respondent. For instance, the allegation that he did not receive the two correspondences from his employer within two weeks of each other and, particularly, the disciplinary warning, did not strike me as credible evidence in all the circumstances described to the Court. Moreover, at hearing he alleged that on one occasion he had seen Couzens bleed a puppy by himself. This was strongly denied by his supervisor Couzens. When he was disciplined in May 1995 on the bleeding of puppies issue, the applicant “... indicated that he had not seen or been advised by either supervisor or manager that this was acceptable practice (sic)” (see Exhibit R7). His evidence at hearing clearly contradicts the statements he made when he was disciplined and appeared to be an attempt to harm Couzens’ standing by suggesting that he had on at least one occasion ignored ethical practices. I have accepted Couzens’ denial as being truthful.
On 21 December 1995 the applicant and a co-worker, who was on that day the officer-in-charge of the area, Anne Mary Hageman (Hageman), were working in the Animal Technical Services Division. Hageman is an animal technician who holds an Associate Diploma in Animal Technology.
On 21 December 1995 there were three members of the Animal Technical Services Division, with the supervisor Couzens on leave that day. The day’s duties included the bleeding of the Group B rabbits and this was to be done after lunch. However, as a result of a telephone call at approximately 10.30am from the antivenom department seeking the blood immediately, it was agreed the applicant would start the procedure and Hageman would return to help him once she had completed two other tasks she was then required to perform, one of which was to dose some other rabbits and the other was to observe cats with a vet. After dosing the rabbits Hageman attended the surgery area and saw the applicant changing tubes on the flask. She noticed one flask on the desk with blood in it and assumed that the applicant had by then completed the procedure on one rabbit. Hageman did not see the rabbits and she was not addressed by the applicant before she was called away to observe the cats.
When Hageman again returned to the surgery at between approximately 11.40 and 11.50am to assist the applicant, he was gone, the surgery had been cleaned and the blood had been delivered to the department requesting it.
21 December 1995 was a Thursday and that is the day the rabbits were usually weighed. Following lunch between 12.00 and 1.00pm, the applicant and Hageman were involved in weighing rabbits from different groups and recording the weights measured. Group B was included in this process. There is conflict between the evidence of Hageman and the applicant as to whether she handled and observed the rabbits during the weighing process and, further, whether, according to the applicant, during this procedure Dennis Ryan, another animal technician, approached them and told them that one rabbit was looking “a bit seedy”. The applicant claims that he and Hageman looked at the animal and decided it was “still pretty healthy”.
Her evidence is that the applicant was engaged in removing the rabbits from their cages, placing them on the electronic scales, calling out their numbers to Hageman who read the weight measurement and recorded it on Exhibit R2. The rabbits were then returned by the applicant to their cages. During this process Hageman denies having had the opportunity to handle the rabbits or observe their condition because she was busy performing her part of the task.
No evidence was given about Dennis Ryan’s availability to give evidence; nor was any explanation provided by either party as to why he was not called on this issue. The allegations raised by the applicant concerning Ryan’s earlier approach to Hageman were put to her and denied, however, I note from the evidence of the interviews conducted with the applicant following the incident that there was then no mention by him of Ryan’s alleged earlier query about the health of one of the rabbits. This allegation appears to have first emerged at hearing.
There was evidence that when Hageman was in charge the applicant was at times defiant in his behaviour towards her. This led to some tension in their relationship, although I accept her evidence that the relationship was always conducted at a professional level. The applicant’s evidence on these matters seemed to me to be an attempt to both implicate Hageman in any failure to properly care for the animals and shore-up his argument that the animals were “healthy” after the bleeding procedure. On the other hand, Hageman’s evidence that Ryan approached her after the rabbits had been returned to their cages and notified her that the rabbit was dead is more plausible because at the time the rabbits were weighed they were out of their cages, again being handled by the applicant, and there would have been no reason for Dennis Ryan to inspect animals involved in the weighing procedure.
The abovementioned considerations have persuaded me that the failure to call Ryan to give evidence should not be a basis for drawing an adverse inference against the respondent on this particular point.
Where there is conflict between the evidence given by the applicant and that of the respondent’s witnesses on factual issues, I have generally accepted their evidence in preference to that given by the applicant because of the matters I have already canvassed and the overall consistency of their evidence. All the respondent’s witnesses impressed me as being reliable historians who did not appear to seek to embellish their evidence in any way even though it was clear that some felt very strongly about the possibility that the animals may have suffered particularly as a result of any misapplication of the bleeding procedure.
Following the weighing procedure and after Ryan informed her that one of the Group B rabbits was dead Hageman inspected the cage and found the dead rabbit. She observed the second rabbit was low in appearance - she described it as being “a bit wobbly” and it, as well as the third rabbit, had discolouration on one ear. Another witness observed that the third rabbit also had blood on its fur.
Hageman contacted Thickins after she was unable to contact one of the respondent’s vets because she had been instructed by the head of the Antivenoms Department to arrange for a post-mortem of the dead rabbit. Thickins, who had previously performed post-mortems, decided to perform the post-mortem and instructed Hageman to bring the dead animal down to the post-mortem room which she did at about 2.50pm.
At hearing there was dispute about the ability of Thickins to give expert evidence on the cause of injury and the cause of death of each rabbit. When he received the first rabbit (rabbit number 272) he performed a post-mortem examination with the assistance of Hageman. Both Thickins and Hageman observed significant bruising and discolouration to the rabbit’s right ear. Thickins set out his post-mortem findings and results as follows (Exhibit R8):
“PM FINDINGS:
GOOD BODY CONDITION
INTESTINES - NORMAL CONTENTS
LIVER / KIDNEYS NORMAL
- RIGHT EAR - EVIDENCE OF HAEMORRHAGE OVER EAR
SURFACE
- HAEMATOMA AT BASE OF EAR AT SKULL
- EVIDENCE OF BLOOD IN EAR CANAL
POST MORTEM RESULTS:
MASSIVE HAEMATOMA AT BASE OF EAR
MASSIVE TISSUE ENGORGED WITH BLOOD
EAR CANAL FULL OF BLOOD
EVIDENCE OF INNER EAR DAMAGE”
Inasmuch as the findings and results are based on his and Hageman’s visual observations of the animal, they support a conclusion that there was no initial sign of physical trauma to any other part of the animal’s body other than that observed to the right ear and base of the ear. What the applicant challenges is the findings and comments provided in the post-mortem report by Thickins who is not a vet. The challenge is based on Thickins failure, it is alleged, to demonstrate that he was qualified to provide the opinions as to the causes of injury and death the respondent then relied on to terminate the applicant’s employment. The diagnosis and comments were that:
“DIAGNOSIS:
RABBIT DIED THROUGH TRAUMA & SHOCK RESULTING FROM EXCESSIVE USE OF VACUUM (GREATER THAN 125MMHS) CAUSING EXTREME DAMAGE TO INNER & OUTER EAR.
COMMENTS / RECOMMENDATIONS:
INAPPROPRIATE ACTION BY OPERATOR.”
After the first post-mortem Hageman enquired about the health of the second rabbit and was informed that it too had died. The post-mortem was conducted on rabbit numbered 345 by Thickins at approximately 3.45pm in the presence of the union delegate Phil Molins (Molins), who is an animal technician. Molins represented the applicant during the May disciplinary session and had, at that time, been critical of the respondent’s failure to provide back-up staff and assistance on 2 May 1995 to help complete the duties to be performed by the applicant in this department. There were similar post-mortem findings to those made in respect to rabbit numbered 272. The diagnosis and comments made for this second rabbit were as follows:
“DIAGNOSIS:
AS FOR RABBIT NO 272. TRAUMA & SHOCK RESULTING FROM EXCESSIVE USE OF VACUUM - CAUSING DAMAGE TO INNER & OUTER EAR
COMMENTS / RECOMMENDATIONS:
INAPPROPRIATE ACTION BY OPERATOR.”
Section 79 of the Evidence Act 1995 provides as follows:
“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
The effect of this provision is that an expert witness does not necessarily require formal qualifications but may rely on relevant experience. Thickins lacks formal veterinarian qualifications, however, he holds a Certificate of Applied Science in Animal Technology and relied on some twenty-five years of relevant experience. That experience included working with and assisting the veterinary officer to perform regular post-mortems on some twenty rabbits per day, during which time he performed the post-mortems unsupervised and reported his findings to the veterinary officer if he ascertained any abnormality in the appearance of the animal. It also included over twenty-five years experience in using the vacuum flask bleeding procedure on rabbits. It was conceded by Thickins that the post-mortems he had previously done had been mainly to detect evidence of a particular disease the respondent was investigating at that time. He also agreed that when he performed the two post-mortem examinations he did so with the assumption in mind that the animals’ deaths had been caused by the vacuum procedure used on them during the day. Thickins explained to the Court that when he referred to “shock” in his post-mortem findings, he believed that the shock was caused by “... the experience of gross pain, experience from the pressure of the haematoma around the base of the ear. The inner ear damage, which was just shown by blood in the inner ear canal and some particles.” He did not believe that the “shock” was caused by any overall loss of blood by the animals.
Relying on section 79 of the Evidence Act 1995 and the training and experience claimed by the witness, despite the invitation from the applicant’s counsel to exercise my discretion pursuant to section 135 of the Evidence Act 1995 to exclude this evidence on the grounds that it may be misleading, I have concluded that Thickins was in a position to provide an expert opinion on matters relevant to determining the cause of the injuries and death and on at least one possible cause or factor contributing to the injuries and death; namely, the inappropriate application of the vacuum flask procedure. The concern raised by the applicant’s counsel was directed at the witness’ ability to arrive at the conclusion he did that excessive use of the vacuum equipment had caused significant physical damage; the shock and trauma of which caused death. The applicant’s case was that there was conflict between this conclusion and the opinion of the veterinarian witnesses, not to mention a failure of the respondent to investigate other possible causes of injury and death before accepting Thickins’ determination of the likely cause.
Both parties called expert veterinary testimony. The applicant consented to the respondent interposing the evidence of Dr Susan Bennell Peirce (Dr Peirce), who has been employed by the respondent since February 1996. Her area of expertise is laboratory animal medicine. Prior to taking up her position with the respondent she was head of the department of animal studies at the Box Hill TAFE College where she instructed animal technicians and veterinary nurses. One of her current duties is to perform post-mortems on the respondent’s animals. Her evidence was that it is acceptable practice for Thickins to perform post-mortems on rabbits if she is unable to and this is because of his familiarity with the anatomy and physiology of these animals.
Dr Peirce was asked to read the post-mortem notes recording Thickins’ findings and take into account the procedure performed on the animals some hours prior to their deaths. From this she was asked to tell the Court her opinion of the likely cause of death of each animal. In short, she concluded that it was, in each instance, hypovolaemic shock due to loss of blood.
Dr Peirce arrived at her conclusion by taking into account the volume of blood rabbits usually have (approximately 120 millilitres) and the amount each of the rabbits had given on 18 and 21 December 1995. She also pointed to the additional loss of blood into the damaged ear tissue and the haematoma. Dr Peirce stated that the post-mortem results were consistent with the bleeding procedure not being performed with the appropriate degree of skill and to that extent her opinion accords with Thickins’ opinion. This statement seems to cover a failure to either properly adjust the pressure so that injury to the ear is caused by the non-skilful use of the equipment and a failure by the operator to skilfully assess the condition of the animal when blood is taken. On this last point it was agreed by the respondent’s witnesses that a trained operator has a responsibility to watch the animal for any signs of pallor in the animal; for instance, around the orbital membrane of the eye and to cease the bleeding operation regardless of the amount of blood sought by the Antivenom Department where there are clinical signs suggesting that the animal cannot give any further blood or shows signs of distress. The evidence was, and it was the applicant’s evidence too, that the applicant had difficulty in obtaining the maximum amount of blood sought on 21 December 1995, only producing thirty-six, thirty-six and thirty-seven millilitres respectively of blood from the three animals. Couzens’ evidence was that where blood is sought the amount designated is the upper limit sought and it is the operator’s responsibility to cease the procedure if the animal cannot provide the maximum amount asked for.
In giving his own evidence the applicant conceded that he was trained in the bleeding procedures and understood his ethical responsibilities vis-a-vis the animals if there were any signs of distress during the process. He denied ever having any training which would enable him to recognise signs such as the pallor of the animal’s orbital membrane but agreed that one of his duties was to observe the animal during the process and if there were signs of distress or problems in obtaining the blood, he was required to desist from the bleeding procedure. His evidence that his training did not include training to recognise changes in the animal’s orbital membrane is in conflict with that given by Couzens and Exhibit R17 showing, as it does, that the applicant had accreditation and on the job training in the relevant procedures.
The importance of the difference in the evidence given by Thickins and Dr Peirce is that Dr Peirce’s conclusions go further than those reached by Thickins, who confined his conclusions to the misapplication of the equipment and the belief that the shock and trauma of the injury caused death. Dr Peirce’s conclusions suggest the applicant was remiss in the performance of his duties as a trained operator in not observing the animals carefully enough to detect that the animals were not able to provide close to forty millilitres of blood on that occasion. The comments also made by Dr Scott, the applicant’s expert witness, suggest that this is a consideration that should have been kept in mind. The conclusions relating to blood loss also raise an issue as to whether the respondent needs to adopt bleeding procedures which take into account the size of the animals and the regularity of the giving of blood and to monitor more closely the ability of the animals to give blood. To leave it entirely to the operator to exercise a judgment as to when to stop bleeding could increase the risk to the animals through lack of attention if the operator is working under pressure.
As already noted the applicant called expert testimony from Dr Peter Scott who, amongst other things, holds a Veterinary Science Honours Degree and a PhD in Immunology. Dr Scott is currently the managing director of a company which consults in animal and aviarian health. In the last four to five years his dominant area of expertise and practice has been aviarian veterinary medicine.
Dr Scott was critical of the lack of detailed information contained in the post-mortem notes. Unfortunately, his evidence was given after that of Thickins and Dr Peirce and many of the matters of criticism raised in his evidence were not put to these two witnesses. Having read the two post-mortem reports Dr Scott told the Court he could not form any conclusion about the cause of death “... you would obviously have your suspicions that it had something to do with the trauma around the ear, but, the exact sequence of events and why there was an eventual demise of the animals you would not be totally certain because it is obviously very possible to have a large blood blister on you and that does not cause your death.” In other words, at first Dr Scott was not prepared to concede that the injuries were caused or were connected to the deaths.
He did however go on to say that “... you could draw a reasonable conclusion that obviously the physical damage you see there has something to do with the death, but, what the actual demise of the rabbit is you cannot indicate from this result. Something would have to have killed the rabbit.” Dr Scott agreed that there was a causal association between the use of the bleeding apparatus and the haematoma and death. This I understood to be a reference only to the use of the equipment not its misuse. Dr Scott also pointed out that there were other possible causes of death relating to the trauma observed and they include cerebral, epidural or dural haemorrhage or a coagulation of the blood which might come about from an abusive treatment of the rabbit or a coagulation defect.
Because of what he referred to as the cursory nature of the post-mortems performed, Dr Scott took the view that “... I certainly agree that there has been evidence of trauma around the base of the ear and that is invariably most likely associated with - most certainly associated with the vacuum machine. But the actual demise of the rabbit you can’t say. So you can’t draw a conclusion. Invariably the procedure of applying the vacuum to the ear has had something to do with the rabbit’s death, but, the exact mechanism of the rabbit’s death I could not indicate whether it was due to, as I indicated, cerebral oedema, frank blood loss or coagulopathaphy. I don’t know.”
My impression of Dr Scott’s evidence was that the uncertainty he expressed in giving his responses was to do first with his belief that more extensive post-mortem examination and tests should have been conducted and, secondly, his reluctance to exclude other possible causes, no matter how remote, as factors contributing to, particularly, the deaths of the animals.
It has been said that employers are not required to have the skills of police investigators or lawyers (see Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 253 and the observations of Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Limited 1 IRCR 199 at pages 209 to 210). In each case it may be a question of degree as to how far and to what level of sophistication an employer must go to safely say that its conclusions are justified. The risk in this case is that if the applicant’s expert’s testimony is accepted, then the respondent was required to conduct exhaustive tests for any possible cause that came to mind before it could say that it acted reasonably and fairly in concluding that the cause of death was related to the misuse of the procedure and the failure of the operator to act appropriately when dealing with animals in his charge.
Obviously the cause of both the injuries and the deaths are relevant in determining whether the respondent was justified in terminating the applicant’s employment because of what it viewed as his responsibility in bringing about both the injuries suffered and the deaths. However, the standard of proof required is that on the balance of probabilities and because of the seriousness of the allegations made it would be appropriate to consider that standard of proof in the light of the observations made in Briginshaw v Briginshaw and Another (1938) 60 CLR 336 at 362 where Dixon J. said:
“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and the consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
This is a case where by alleging that the applicant deliberately inflicted harm on these animals the respondent exposed the applicant to charges of cruelty under the Prevention of Cruelty to Animals Act 1986 (see Part 2 of the Act generally). The allegation of deliberate infliction of harm and, indeed, any allegation of gross neglect, because they are serious allegations certainly do require that the persuasion of my mind on these matters should reflect the gravity of the allegations made. Nevertheless in reaching that level of persuasion it is not appropriate to raise the standard of proof to such a level that the respondent has to eliminate all other possible causes.
Having considered the evidence of the two veterinarian witnesses I am not satisfied that there was reason for the employer to investigate beyond the obvious causes of injury and death; so that it dealt with the more remote possibilities of injury and death such as those associated with the venom and the incomplete freund adjuvant dosing procedures early in December 1995. Clearly there was scope for more expert pathology to be undertaken, however, this does not in all the circumstances of this case mean that for the respondent to act reasonably in its investigations it was required to exhaust all possible causes of the deaths.
My conclusion from the evidence of the experts, and I have included Thickins in this group because his experience appears to have qualified him to provide the views he provided at least as to the likelihood that there was excessive pressure applied to the rabbits’ ears through the use of the vacuum flask, are as follows:
(a) the probable cause of injury to each rabbit’s ear was the inappropriate use of the vacuum apparatus; and
(b) the probable cause of death was the injury suffered and the loss of blood consequent on both the injury and excessive exsanguination in all the circumstances.
The applicant’s evidence is that as an animal technician he started the appropriate college course but did not finish it. His training in the use of the vacuum apparatus came from Couzens on the job and his description of the procedure was consistent with that described by the respondent’s witnesses. He acknowledged that an animal’s welfare is paramount and, if the animal struggles or is distressed in any way, it is necessary to release the vacuum pressure and desist from the bleeding process. He also appeared to understand the need to be vigilant whilst performing the procedure and to monitor the changes in the animal’s behaviour.
On 21 December 1995 when he was unable to achieve the desired volume of blood from each rabbit he told the Court he “... just stopped and put the rabbit away”. He went further to say that when he returned the rabbits to the cage they were “perfectly alright”. The witnesses, who all had experience in the handling of rabbits during the bleeding procedure (and at least two of them had more than twenty-five years experience), all expressed the view that rabbits are relatively easy to handle but once they are subjected to any excess of vacuum pressure they commonly show some sign of protest or physical discomfort. This is quite apart from the manifestation of other clinical signs indicating that it is not desirable to take more blood.
I am not satisfied that the respondent’s witnesses were, as a result of their on the job experience, able to express views as to the degree of protest or distress manifesting itself if the procedure was not properly applied on this particular occasion. Nevertheless, I am persuaded by their experience of these matters, and their evidence that bruising is apparent fairly early on if there is excessive vacuum pressure, and that some sign of injury and/or discomfort probably manifested itself at the time each animal was subjected to the procedure. This evidence points to a failure on the applicant’s part to be alert to the reactions and needs of the animals he was handling.
According to the applicant the bleeding procedure finished at about 11.50am and he next saw the rabbits at about 1.00pm when he and Hageman commenced the weighing procedure. I have already covered in my earlier comments the weighing procedure which followed the lunch break and the conflict between the evidence of the applicant and Hageman.
The applicant’s evidence is that in the latter part of the day he attended CSIRO and was not around when the post-mortems were conducted; nor did he see any of the animals again before he was called to a meeting arranged by the respondent on 22 December 1995 to obtain an explanation of what happened. Because the applicant is not pursuing any procedural fairness issues, I do not propose to cover the meetings leading up to the termination in any great detail. Suffice to say that on 22 December 1995 the applicant was accompanied by a union representative. The applicant denied that there were any problems with the animals or the procedures on 21 December 1995. He said that when he returned the rabbits to their cages and checked their appearance they were in good health. He could provide no explanation for the extensive injuries to each rabbit’s right ear and the demise of the two rabbits within some hours of the procedure being performed.
At the meeting on 22 December 1995, which was conducted by Thickins, the applicant was invited by Thickins to resign or face a full enquiry. The applicant declined to resign and he was placed on suspension of his work duties with pay pending a full investigation.
The investigation was conducted by Milroy, who interviewed and obtained statements from the witnesses as well as obtaining from Couzens details of the training and accreditation the applicant received from the respondent for the procedures he performed (see Exhibit R17).
A further meeting was conducted with the applicant on 10 January 1996 when the applicant was informed of the results of the enquiry and it was then indicated to him that Milroy would be recommending to the General Manager, termination of the applicant’s employment. The applicant and his union representative were invited to make any verbal or written submissions they desired to the General Manager. On 15 January 1996, through his union representative, the applicant provided a character reference from one of the respondent’s employees stating (Exhibit R21):
“I Stasia Kurpiewski have known Jim Roseburgh for 8 years. In that time I have never witnessed Jim to be crew (sic) or mistreat any animal.
He was always caring, nuturing (sic) and concerned about the animal’s (sic) and living conditions.”
The material upon which the recommendation to terminate was based is contained in an extensive report and attachments put together by Milroy and sent to the respondent’s General Manager on 11 January 1996. The character reference was also provided before the recommendation was adopted and the applicant was, on 16 January 1996, given written notice of termination from 18 January 1996 (Exhibit R23).
On the oral evidence and the material before the Court, I am satisfied that the respondent conducted an extensive enquiry which covered the post-mortems, interviewing witnesses and also checking whether there was any malfunction in the equipment used by the applicant on 21 December 1995 by obtaining a report on the calibration of the gauge. It appears from other evidence given by the respondent’s witnesses that the gauge and the apparatus used on the date of the incident have been used since then without any problems.
As a result of the comments of the animal technicians’ made to him during their interviews, it is apparent that Milroy arrived at particular conclusions about the circumstances leading up to the injuries to the animals and the death of two of those animals. At page two and three of his report (Exhibit R22) he makes the following comment:
“The process itself meant that one animal needed to be bled and returned to the cage before a second animal could be started. Therefore Mr Roseburgh would have been aware of the injury his application of the process was inflicting before he started on the second animal, and again on the third animal.”
• Failure to Report
Two animals died with obvious physical injuries. A third animal was still showing signs of injury which 3 experienced technicians suggest would have been immediately obvious (blue ear from bruising) six days after the event. Despite this, no report was made on the day by Mr Roseburgh and these animals were left to be discovered by co-workers. Again it should be noted that all animal technicians interviewed acknowledge that the infliction of these injuries would have been immediately obvious through physical signs and animal protests.”
In arriving at his recommendation that the applicant’s employment be terminated, Milroy set out the following matters which he considered relevant at page four of his report:
“- the assumption on my part is that Mr Roseburgh’s original action was not deliberate or mischievous
- despite his training and stated knowledge of procedure, he did apply the procedure incorrectly causing immediate and demonstrable injury
- his continuation of the process onto a second and third animal despite knowingly inflicting injury was deliberate
- his failure to inform anyone of the injuries inflicted, thereby not allowing any assistance to be given to the animals was deliberate
- his failure to acknowledge in any way, his part in inflicting these injuries, despite acknowledgment of the consistency of the injuries with the inappropriate application of the process, was deliberate.”
Because of the abovementioned matters Milroy concluded that the applicant was guilty of gross misconduct and should be terminated “with notice paid in lieu”.
It is obvious from Milroy’s conclusions that he and the respondent’s witnesses who, apart from Milroy, all relied on their experience of rabbit reactions to the use of the vacuum apparatus, all felt that some of the applicant’s actions must have been deliberate.
Couzens was the applicant’s immediate supervisor and was in a good position to describe the applicant’s general work performance and practices. Despite the incident in May 1995 the applicant was prepared to concede that Couzens was a fair and reasonable supervisor. When Couzens was asked he described the applicant as being an employee who was at times defiant in responding to instructions, whose work habits were untidy and who suffered from lapses of concentration. In cross-examination Couzens’ reaction was sought to the proposition that the applicant knowingly and deliberately harmed the three animals. His answer was “I can’t imagine he’d do that, but on the other hand, as I mentioned earlier on, he is inclined to lapse in concentration”. Further he agreed that his principal criticisms of the applicant’s work were essentially carelessness and defiance.
This is a case where the applicant has obviously been distressed by the allegations that he deliberately harmed the animals he bled on 21 December 1995. There is evidence that at times the applicant may not have performed his duties to the standard required in order to properly care for animal needs. This evidence is consistent with carelessness or a neglect of his duties. However, there is no direct evidence of deliberate cruelty to the animals he handled and, more particularly, deliberate cruelty towards the rabbits on 21 December 1995. In making these observations I am attempting to redress the unfairness of the conclusions drawn by some of the respondent’s witnesses about the purposefulness of the applicant’s conduct. However, my observations should not be taken as condonement of carelessness in the handling of live animals. The community permits experimentation with live animals in circumstances where high standards of conduct vis-a-vis the animals are required. In this context carelessness in the performance of duties designed to minimise the risk to the animals and protect their welfare is an extremely serious matter.
It is apparent from the recommendations to terminate that the respondent made its decision to terminate because it not only believed that the neglect of the applicant’s duties caused or contributed to the injuries and death of the animals, but that there was an element of deliberateness in the applicant’s acts or omissions. That belief was fostered by the assumptions its witnesses made about the reactions of the animals and the extent to which the injuries manifested themselves in the period during which the applicant handled the animals.
In this case the evidence does establish a causal link between the use of the equipment on the rabbits and the injuries to their ears. In contrast, in his decision in Boland v Maningrida Council Inc. (1996) 66 IR 382 Chief Justice Wilcox had occasion to consider the question of gross neglect of duties where it was not alleged that the employee had stolen the missing money, only that the money had been lost because he had neglected his responsibilities. At page 388 to 389 of the decision His Honour said:
“But, even if it is not possible to say that a particular neglect of duty caused the loss, it is not unfair to conclude that the loss was caused by some act of neglect. There is no suggestion in the evidence of an act outside Mr Boland’s control, such as a robbery or burglary. There seem to be only three possibilities: loss or theft of the money when it was taken out of the bank by Mr Boland, embezzlement by someone on the Friday afternoon or a theft over the weekend by someone who took the keys from Mr Boland’s kitchen. If the loss occurred by reason of either the first or third possibility, it is reasonable to hold Mr Boland directly responsible. On the second possibility, it might not be reasonable to say that Mr Boland was directly to blame but it would certainly be fair to say that the failure to conduct a Friday afternoon cash count, before the staff left the bank, prejudiced the chance of detecting the embezzlement and recovery of the money.”
The only explanation offered by any of the witnesses for the injury to the rabbits’ ears was that it arose out of the vacuum procedure and some misapplication of that procedure. As the person with the responsibility for performing that procedure the applicant must be held responsible for the injury to the rabbits’ ears. The applicant was also responsible for determining as he went how much blood should be taken from each animal without risking their health and monitoring their welfare on each occasion he handled them on that day. If the rabbits suffered injury and died as a result of an excessive bleeding procedure, then the applicant must accept some responsibility for what happened whilst the animals were in his care.
In determining the applicant’s fate as an employee the respondent was entitled to take into account its responsibility for the welfare of a large range of animals and its own interests in protecting its credibility as a body licenced to perform experimentation on live animals. In this Court it is often said that in order to act fairly an employer must look to the whole of the employee’s work record before dismissing the employee. In this case the applicant’s history shows that he was not a model employee and there was already some question mark over his attention to the standard of performance of his duties. In the text The Law of Employment (Macken, McCarry & Sappideen, 3rd Edition, Law Book Company, 1990) the learned authors at page 205 of that text make the following observation:
“Generally, summary dismissal will only be justified if there has been a course of negligent conduct although in some circumstances a single negligent act may be sufficiently serious to warrant dismissal. In determining the seriousness of an act of negligence regard must be had, not to the consequences of the act, but to its nature. Naturally the seriousness of consequences likely to result from an act of neglect have a bearing on the characterisation of the neglect as trivial or substantial. Conduct likely to seriously endanger the lives of others or cause very extensive damage to property will, it is submitted, rarely be trivial.”
Having considered all the evidence I have formed the view that at the date of termination there was a valid reason and that was the neglect of the applicant’s duties which neglect was linked to the injury and loss of experimental animals. The seriousness of the applicant’s failure to perform his duties skilfully and the consequences of this failure are such that, in all the circumstances, the employer was justified in bringing the employee’s employment to an end on notice; although the evidence does not support a finding that the employee’s conduct was deliberate. Accordingly, the order I propose to make is that the applicant’s application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding twenty-five (25) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 27 November 1996
Solicitors for the Applicant: Slater & Gordon
Counsel for the Applicant: Ms M. Richards
Solicitors for the Respondent: Freehill Hollingdale & Page
Appearing for the Respondent: Mr M. Rinaldi
Date of hearing: 12 & 15 July 1996
15 August 1996
Date of judgment: 27 November 1996
