Mr Gaite is a senior firefighter with Fire and Rescue NSW who paid a high price for ‘hands-on’ first aid training – Gaite v Commissioner of Fire and Rescue NSW [2019] NSWIRComm 1070.
As well as being an employed firefighter, Mr Gaite was also a combat medic with the Australian Army reserve. He provided basic life support (BLS) training as part of his army duties. On 4 April 2018 Mr Gaite was asked to assist with the training of some recruit firefighters. He was asked to deliver some BLS training. Mr Gaite was a Fire and Rescue trainer but he was not ‘validated’ as a BLS instructor. Even so he was asked to assist in this training because of his experience in providing BLS training with the Australian Defence Forces (ADF) ([20]-[22]). There were six recruits in the class, 4 women; 2 men.
In the Industrial Relations Commission Commissioner Sloan set out his findings as to what happened at [25]):
- Mr Gaite informed the recruits that during the session there would be some physical contact.
- During the course of the lesson Andrew Day was asked to lie on the floor to play the part of a “model patient”.
- Mr Gaite spoke to the recruits about how to determine the level of consciousness of a person, which included a discussion of the acronym “AVPU”. That acronym stands for: Alert (where the patient can open their eyes and is aware of their surroundings); Verbal (where the patient responds to verbal stimuli); Pain (where the patient responds only to painful stimuli); and, Unresponsive/Unconscious (where the patient does not respond to either verbal or painful stimuli).
- Mr Gaite asked the recruits to provide examples of pain stimuli that would be used on a patient. He claimed that their answers were incorrect and he decided to demonstrate techniques on some of them. He walked to Ms Matuzelis and without warning pinched her left triceps. He did the same to Ms Tight. He also demonstrated on Ms Tight and on Ms Hyslop a pain stimulus in which he pressed down on the nail bed of their thumbnails until it hurt and the recruit recoiled.
- In each instance the demonstration elicited a strong pain response – that is, the jerking of the arm away. It is this pain response which the technique aims to produce, as it is indicative of a level of consciousness. It was indeed Mr Gaite’s intention in demonstrating the pain stimuli to elicit a pain response.
- Each of Ms Matuzelis, Ms Tight and Ms Hyslop claim to have suffered significant pain as a consequence of the demonstration. In the case of Ms Matuzelis and Ms Tight, the incident led to them having bruises on their arms.
- Ms Seamer asked Mr Gaite if she could demonstrate a pain stimulus on him, to which he agreed. It involved pressure being applied by Ms Seamer to Mr Gaite’s trapezius muscle, which provoked a pain response.
- Mr Gaite did not tell the recruits that he might inflict pain on them. He did not seek consent from any of the recruits to him touching them or inflicting pain on them.
Another instructor (not the students) raised a question about the appropriateness of Mr Gaite’s training methods. Ultimately Mr Gaite was asked to respond to allegations (at [29]) that he:
“… engaged in misconduct by:
- Intimidating and/or threatening recruit firefighters prior to the commencement of training by saying words to the effect of ‘You had better be nice to me as I may be your assessor during the Qualified Firefighter Program.’
- Victimising, humiliating, intimidating or threatening recruit firefighters by:
- pinching Lisa Matuzelis on the underside of her arm;
- pinching Alana Tight on the underside of the arm and also her fingernail.
- pinching Nadine Hyslop on the finger.
- Sexually harassing and/or targeting a female recruit firefighter by walking past two male recruits in order to pinch female recruit Lisa Matuzelis on the underside of her arm.” (Emphasis in original)”
After an investigation the Fire and Rescue Commissioner (at [34])
…made a preliminary decision pursuant to reg 35(1)(i) of the Fire Brigade Regulation 2014 (NSW) (“Regulation”) in these terms:
“I find that allegations 2-3 are sustained. These allegations are very serious in nature and I am considering that misconduct has occurred and that disciplinary action up to dismissal is warranted.”
Then (at [38]) ‘By letter dated 15 January 2019 Commissioner Baxter informed Mr Gaite that his employment was to be terminated “effective with the delivery of this letter to you”.
Mr Gaite commenced proceedings alleging that the dismissal was ‘unfair’. It was that application that had to be determined by the Industrial Relations Commission. The Commission said:
There was no contest between the parties that AVPU is an appropriate means by which to assess the level of a patient’s consciousness, and that training in AVPU is properly a matter to be included in BLS instruction. Similarly, there was no dispute that the techniques demonstrated by Mr Gaite on 5 April 2018 are legitimate means by which to provoke a pain response in an apparently unconscious patient.
The question is whether there was a justifiable basis for Mr Gaite to have demonstrated those techniques on Ms Matuzelis, Ms Hyslop and Ms Tight (particularly without warning or consent) and, if not, whether in doing so Mr Gaite was guilty of misconduct warranting the immediate termination of his employment.
Critical to the Commission’s decision was the fact that Mr Gaite was not a Fire and Rescue BLS instructor, he was an ADF BLS instructor and he was asked to assist with this training because his ADF experience meant he could step in and help when Fire and Rescue was ‘short one trainer’ ([21]). In evidence ([54]) Mr Gaite said:
I don’t know exactly how other validated Fire [&] Rescue BLS instructors taught lessons and what the correct methodology of teaching BLS in Fire [&] Rescue is, because I am not a validated Fire [&] Rescue BLS instructor. My skill and experience in teaching first aid comes from the Australian Army. Comes from the documents on courses such as the combat first aid course that I have put in my submissions. My experience in teaching BLS is several years’ worth of Army training and teaching lessons to soldiers in the Australian Army.
Dr Chambers, an experienced Army reserve medical officer who had acted as Chief Instructor for Combat First Aid Courses conducted for the 1st Commando Regiment and who had observed Mr Gaite’s work with the Army, gave evidence ([55]) that the methods adopted by Mr Gaite were both ‘valid’ and ‘reasonable’.
He did give further evidence ([56]) that
… attendees at the Army training would know that pain techniques would be demonstrated on them and that they were likely to hurt. Secondly, the method adopted is to apply a gradually increasing level of force on the student until such time as the pain response is demonstrated. Thirdly, Dr Chambers would expect that the techniques would be demonstrated on all attendees at the training, not just isolated individuals.
Commissioner Sloan noted (at [57] and [59]) that:
Mr Gaite’s conduct on 5 April 2018 was not in keeping with this description. Mr Gaite did not seek the consent of the recruits to conduct the demonstration on them or advise them that it would hurt. He appears to have applied an immediate, significant level of force on the recruits rather than gradually increasing the force until a pain response was achieved. This caused the recruits to suffer significant pain and in two cases bruising. He did not demonstrate on all of the recruits…
The fact remains, however, that there was uncontroverted evidence that through the Australian Army Reserve Mr Gaite had attended and conducted BLS training in which pain stimuli were demonstrated on the attendees. It was this experience which he brought to, and applied at, the training on 5 April 2018.
With respect to allegation 3 (sexual harassment) the Commission found that complaint could not be made out. There was no evidence of any sexual element in Mr Gaite’s conduct. At [112]:
Obviously, Mr Gaite demonstrated some form of selection in deciding who he would demonstrate the pain stimuli on. It is not clear why he chose the three recruits he did, although the evidence tends to suggest proximity more than any other factor. The fact that they were all female is not of itself enough to demonstrate gender-based discrimination. The witnesses offered an alternative rationale based on size rather than gender. There is no sufficient basis on which to conclude that Mr Gaite’s selection of Ms Matuzelis, Ms Tight and Ms Hyslop was motivated by gender-based discrimination.
With respect to the other allegations Commissioner Sloan said ([125]-[130]):
I am satisfied that on 5 April 2018 Mr Gaite inappropriately inflicted pain on Ms Matuzelis, Ms Tight and Ms Hyslop through the demonstration of pain stimuli on them. I do not consider that he deliberately sought to cause harm or injury to them, or derived any form of improper enjoyment from doing so. I also do not accept that his behaviour amounted to the reckless infliction of injury on the recruits.
Mr Gaite’s conduct on 5 April 2019 was certainly ill-advised, and reflects poorly on his judgment. It is difficult to comprehend how he could have considered it sensible, let alone appropriate, to inflict pain on the recruits without warning or consent. The evidence of the recruits as to the pain that they felt and the bruising they sustained, suggests that Mr Gaite applied a significant amount of force in the demonstration.
However, the conduct must be considered in the context in which it occurred, namely a lesson which was interactive in nature. Mr Day had been required to assume the position of a “model patient” and he was used to demonstrate certain techniques (although I accept that no pain stimuli were demonstrated on him). Ms Seamer demonstrated a pain stimulus on Mr Gaite, albeit with permission. However misguided he may have been Mr Gaite was seeking to demonstrate techniques which arose directly out of the lesson he had been asked to deliver…
In the absence of evidence which demonstrated that Mr Gaite intentionally or recklessly inflicted harm or injury on the recruits, or was guided by unlawful or improper motivations, I do not accept that Mr Gaite’s behaviour is misconduct of a kind which would justify his dismissal at common law.
I accept that Mr Gaite’s conduct was in breach of the terms of the policies and procedures referred to at [15]-[18] [relating to delivering training with safety] above. The conduct was also contrary to regs 16(a), (c) and (e) [regarding a firefighter’s ‘Duty to obey orders and act fairly and responsibly’] and 17(1)(h) [‘Unacceptable behaviour’] of the Regulation. It would follow that the behaviour would be “misconduct” as defined by reg 33 of the [Fire Brigade] Regulation [2014 (NSW)].
Was the dismissal harsh, unreasonable or unjust? Commissioner Sloan said it was. At [137] he said:
Mr Gaite is 51 years old. He has more than 20 years of largely unblemished service with FRNSW. He tendered unopposed into evidence statements from colleagues at FRNSW attesting to his good character. Weighing these matters in the balance against the misconduct in which Mr Gaite engaged supports the conclusion that the dismissal was harsh. Further, I consider that the dismissal was disproportionate to the gravity of the conduct in which Mr Gaite engaged. I find that the dismissal was harsh.
The Commission made an order that Mr Gaite is to be reinstated to the position he held with Fire and Rescue NSW with effect from Tuesday, 8 October 2019. The period between 15 January 2019 and 8 October 2019 is not to count as service but, even so, his employment is to be considered as continuous. In effect he loses 9 months service and presumably seniority.
Lessons learned
In other posts I have quoted Collins v Wilcock [1984] 3 All ER 374 where Goff LJ said (at p. 378):
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected.
In this case the issue was touching students and inflicting pain without warning them (or at least the first of them) and obtaining their consent to touching. It doesn’t matter that the lesson being delivered may be useful, touching without consent is unlawful.
Further even though Mr Gaite was not validated as a Fire and Rescue BLS instructor he was a Fire and Rescue instructor and was familiar with and should have had greater regard to Fire and Rescue procedures. As he himself said (at [115]) ‘I can see that’s not right in today’s world. Need to be more conscious of how other people think about things.’
And the outcome was expensive. Mr Gaite may have been supported by the Fire Brigade Employees Union but even so there was no doubt significant costs, both financial and emotional, in being sacked and losing one’s employment for 9 months and having to go through these proceedings to obtain a remedy (and then having details published on this blog!) And I imagine it will take significant work by both Mr Gaite and Fire and Rescue NSW to restore a relationship of trust and respect.
Whilst it may be hard to see one’s story on this blog, the lesson is however important, not just for firefighters but for anyone involved in training and first aid training in particular. First aid training necessarily involves physical contact and it is important to make sure that students know what is going to happen before they are touched either by instructors or other students and that training does not lead to injury.
Australian Emergency Law 
Although not detailed in your response, was there any sanction against the person who requested that he assist in the training? I can’t see any where that it indicates who the person was that requested his assistance, or what authority over Gaite that person may have held and if they ought to have known better?
This regularly comes up in FRNSW training, for instance where Ambulance officers (who are also FRNSW) may be asked to conduct training, although not recognised as Brigade BLS instructors. Take away the physical contact aspect of this case, I took the view if they were not trained and recognised by FRNSW as an instructor in a certain discipline, then they should not be held out to be, or used, as a trainer.
Sent from my iPad
>
This was a case about Mr Gaite’s application for a remedy for unfair dismissal. It was not a review of the process. This tribunal would have had no cause to consider, and therefore discuss, whether there was ‘any sanction against the person who requested that he assist in the training’. There may have been, there may not have been, it was not relevant to the issue before the Commission.
With respect to validation (at [62]) ‘…FRNSW submitted that its processes did not require Mr Gaite to be validated to conduct the training, on the basis that the session was only a BLS “refresher”…’
Wow, I am even careful when teaching ‘putting the patient into the side position’ that nobody has sharp objects in their pockets. Doing physical harm to students without informed consent. Mind blown!!!
As an instructor of some 25 years, training has become increasingly harder to deliver hands on training within the current and evolving climate. With the litigious environment that we are in, it seems that it is easier to conduct on line training with several pages of disclaimers.
Get permission first, let people know what you are going to do, and don’t hurt them.
I am not an instructor or trainer but another aleatory victim of the ‘current and evolving climate’ (in the workplace) as well of the ‘litigious environment’ (in the workplace), to which it has given rise. As such, I felt immediate sympathy with Nick Gaite on reading of his reinstatement (and ordeal), in the papers, on 25th September, and begun a search for the deliberations of the Commission, finding only this site (gratefully). I note that the laws and regulations, normative policies and procedures, which underpin both this atmosphere and ‘litigious environment’ (in the workplace) are applied summarily (“Zero Tolerance”), without looking at the important matter of ‘context’ (‘truth’), by perhaps over zealous officers, and cite to this effect the ‘professional standards people culture directorate’ at the FRNSW, Louise Clarke, quoted in the newspaper article, and presumably speaking before the IRC: “Times have changed. Behaviours and open ways of doing things are a thing of the past. Terms of conduct once accepted are not acceptable now.” This would imply that in the application of these norms, these officers are perhaps more concerned with dogma and its application, than with objective truth, or interpretation of context, and this is a matter which should concern everybody. It is gratifying, but also alarming, to find that one should have to resort to the good offices of the various Commissions to establish this important matter of ‘truth’, or objective interpretation of context. I am disappointed however to find not a word in the Commission’s deliberations addressing the issue of these newfangled workplace cultures, which underpin this modern dilemma.