Dul v Health Secretary, in respect of Sydney Local Health District [2020] NSWIRComm 1082

Industrial Relations Commission New South Wales Medium Neutral Citation: Dul v Health Secretary, in respect of Sydney Local Health District [2020] NSWIRComm 1082 Hearing dates: 18 and 21 September, 30 October 2020. Written submissions received 6 and 13 November 2020. Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Orders made for the reinstatement of the applicant with back pay Catchwords: UNFAIR DISMISSAL – shift swaps – investigation – whether applicant had verbal approval from Supervisor – whether applicant engaged in a serious form of misconduct for personal gain – application granted Legislation Cited: Industrial Relations Act 1996 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR 70 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Texts Cited: Nil Category: Principal judgment Parties: John Dul (Applicant)

Health Secretary, in respect of Sydney Local Health District (Respondent) Representation: Counsel: Ms R Kumar (Applicant) Mr A Britt (Respondent)

Solicitors: Mr O Khan, Brydens Lawyers (Applicant) File Number(s): 2020/00184348 Publication restriction: Nil

DECISION 1. On 22 June 2020, the applicant, Mr John Dul, filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal following the termination of his employment on 28 May 2020 by Dr Teresa Anderson AM, Chief Executive, Sydney Local Health District ("Application"). The respondent to the Application is the Health Secretary, in respect of Sydney Local Health District ("SLHD"). SLHD was, until 2010, part of Sydney South West Area Health Service ("SSWAHS"). 2. The applicant had been employed at SLHD/SSWAHS as a Mechanical Fitter and Control Room Operator since 7 March 2007. 3. The dismissal of the applicant followed an investigation by Mr Tony Tabet, Principal Officer, Audit and Investigations, and Ms Narmadha Ravishankar, Workforce Advisor, Workforce District Services of SLHD, into a number of allegations against the applicant and a number of other employees and the preparation of an investigation report which was finalised on 28 October 2019 ("Report"). 4. The termination letter of 28 May 2020 from Dr Anderson contained the following: I refer to correspondence dated 5 February 2020, from Ms Gina Finocchiaro, Director Workforce & Corporate Operations, Sydney Local Health District (SLHD), in relation to allegations concerning your conduct. As you are aware, Ms Finocchiaro wrote to you providing the findings of the investigation report that substantiated the following: • You "presented to work for 2 of Mr Edward Hahu's shifts; however no dates have yet been provided to the Engineering Services Manager, RPAH" (Allegation 6); • You were "engaging in the breach of the shift swap process to favour Mr Hahu's actions of personal gain" (Allegation 6); • You "did not seek approval from his supervisor and/ or the authorised person responsible for roster changes to work the 2 shifts" (Allegation 7); and • You "had known about the process for shift swaps, but preferred to swap shifts without written authorisation from ... Supervisor/Manager and without using the Shift Swap Forms" (Allegation 7). Consequently, Ms Finocchiaro's letter required you to provide any reasons in writing as to why a recommendation should not be made to the Chief Executive for the termination of your employment. As such, you provided your written response (the Response) to Ms Finocchiaro dated 21 February 2020 providing reasons that your employment should not be terminated. Please be advised I have given due consideration to this matter. You stated in the Response that working in the control room is a "highly responsible job". However, the investigation report made findings that you engaged in breach of shift swap process when you "had known about the process for shift swaps, but preferred to swap shifts without written authorisation from ... Supervisor/Manager and without using the Shift Swap Forms", which indicates that you failed to meet the responsibilities for your position to seek approval. You also stated in the Response that you "have good rapport with... fellow engineering colleagues". Nevertheless, this is not a reasonable basis for you to engage in shift swaps circumventing the established process, without approval or notification to your manager. The investigation report highlighted actions unsupported by SLHD which also creates a risk to yourself, other staff as well as the Control Room's ability to provide a continual service delivery to patients and staff. You have provided no information that causes me to depart from the findings of the investigation report concerning your conduct. Pursuant to section 119 of the Health Services Act 1997, I have mandatory obligations whereby the protection of patients, clients and children are of paramount considerations on whether to take disciplinary action against a staff member. The findings made by the investigation report involved you engaging in shift swaps with other staff for personal gain, which adversely impacted continual service delivery to patients and staff. The investigation found you to be in breach of the NSW Health Code of Conduct (PD2015_049). Specifically, the obligations to "ensure their actions and decisions are not influenced by self­interest or considerations of personal gain or other improper motives" (Section 4.2.3). The investigation team also found that your actions breach the SLHD Rostering Best Practice Policy Compliance Procedure (SLHD_PCP2019_024). After due consideration of this matter, I inform you that I have lost faith and trust in your ability to comply with your obligations arising from the NSW Health Code of Conduct and your employment contract. As you are aware, you received a Final Warning regarding a serious omission of duty of care and a breach of the NSW Health Code of Conduct (section 4.3 Acting professionally and ethically) on 1 July 2016. Accordingly, I advise that your employment is terminated on the basis of a serious form of misconduct of engaging in conduct for personal gain and breach of the NSW Health Code of Conduct (PD2015_049), as detailed in the investigation report. Your termination will take effect from the date of this letter. You will be paid one weeks' pay in lieu of notice and any outstanding monies owing to you will be paid into your nominated bank account. You are required to return any work belongings, including your staff identification to the Workforce Services Department. 1. In the Application, the applicant is seeking reinstatement to his former position and monetary compensation. 2. The "Reasons for Application" section of the Application contained the following: Factual Background 1. The Applicant commenced employment with the Respondent on 7 March 2007 as a Maintenance Mechanical Fitter. In 2016, the Applicant transferred to be a permanent Mechanical Fitter and Control Room Operator (Position). The Applicant worked at Royal Prince Alfred Hospital (RPA) for the entirety of his employment with the Respondent. The Applicant worked on a full-time basis and performed 4 to 5 shifts per week. The Applicant's shifts were 12 hours long. 2. The Applicant had completed approximately thirteen years and two months continuous service at the time of the dismissal. The Applicant signed a contract of employment when he commenced work with the Respondent. He does not have a copy of this contract. 3. In the Position, the Applicant undertook all roles incidental to the role of a Mechanical Fitter and Control Room Operator. This included maintenance of RPA's: a) air conditioners; b) steam boilers; c) machinery; and d) pumps. 4. For the duration of his employment with the Respondent, the Applicant performed his responsibilities to a high standard. The Applicant was only subject to two disciplinary matters over his thirteen years and two months of employment with the Respondent. The first disciplinary matter related to an incident on 18 September 2015. The second disciplinary matter led to the termination of the Applicant's employment with the Respondent. First disciplinary matter – 18 September 2015 5. On 30 May 2016, the Respondent issued the Applicant with a "final warning" in relation to an incident that occurred on 18 September 2015. The circumstances of this incident… can be summarised briefly as follows: a) the Respondent found that a colleague of the Applicant, Mr Allan Griffiths (Control Room Operator), was intoxicated at the workplace on 18 September 2015; b) the Respondent alleged that the Applicant failed to report Mr Griffiths' intoxication to his managers and that this jeopardized the safety of staff, visitors and patients of RPA; c) the Applicant denied the allegations and informed the Respondent that he reported Mr Griffiths' intoxication to his managers on several occasions; and d) despite the Applicant's denial, the Respondent issued the Applicant with a "final warning". 6. The Applicant submits that receiving a "final warning" was premature in that it was not preceded by a warning and/or it was not otherwise reasonable in the circumstances. Despite this, and although he denied (and continues to deny) the allegations described in relation to the first disciplinary matter, the Applicant accepted the ''final warning" issued to him. He recommitted himself to performing his responsibilities in the Position to a high standard. 7. The Applicant submits that the "final warning" given the circumstances in which it was issued, and its age, is of little if any weight. In this regard, the reference to the first disciplinary matter in the Termination Letter (defined below) is unjust, inappropriate and significantly unfair. Second disciplinary matter 8. In 2019, several allegations were made by the Respondent against the Applicant in relation to allegedly swapping shifts with his colleagues without approval. The Respondent issued the Applicant with a letter dated 22 July 2019… This letter describes the allegations as follows (Allegations): "Allegation 1: Mr Edward Hahu, without seeking approval or authority from his supervisor and/ or the authorised person responsible for roster changes, did not attend work for his rostered shifts, and was paid for those 2 shifts as though he had worked them." Allegation 2: Mr John Dul presented to work for 2 of Mr Hahu's shifts, however no dates have yet been provided to the Engineering Services Manager, RPAH." Allegation 3: Mr Dul did not seek approval from his supervisor and/ or the authorised person responsible for roster changes to work the 2 shifts." Allegation 4: There is also a cash payment arrangement between Mr Hahu and/or Mr Dul with working another person's rostered shifts." Allegation 5: During such shift swaps, Mr Hahu and/ or Mr Dul may have worked continuous night shifts without a break potentially resulting in a work health and safety issue." a) On 30 July 2019, the Applicant met with the Respondent to provide a verbal response to the Allegations… The Applicant was subsequently provided with an investigation report dated 28 October 2019 (Investigation Report)… The Investigation Report concluded, among other things, that the allegation that the Applicant worked two shifts for Mr Edward Hahu without authorisation to swap shifts was substantiated however, the dates of these shift swaps is not known/recorded; b) the allegation that the Applicant engaged in a cash payment arrangement in relation to shift swapping was not substantiated; and c) the allegation that during shift swaps, the Applicant potentially caused a work health and safety issue, was not substantiated. 9. Despite the Investigation Report finding that several of the allegations against the Applicant were not substantiated, the Respondent provided the Applicant with a show cause letter dated 5 February 2020 (Show Cause Letter)… 10. The Show Cause Letter invited the Applicant to show cause as to why a recommendation should not be made to terminate the Applicant's employment. The Applicant provided a response to the Show Cause Letter… The Applicant's employment was subsequently terminated on 28 May 2020 pursuant to a termination letter dated 28 May 2020 (Termination Letter)… 11. For the duration of his employment with the Respondent, swapping shifts occurred regularly. Frequently during his employment with the Respondent, the Applicant was informed by his managers that shift swapping was allowed as long as someone performed the shift. Between 2007 and 2018, Mr Tony Kenny, Mr Paul Cujack, Mr Rodney Janetzki and Mr Matthew Pocock, who each were the Applicant's direct manager at different times, conveyed this to the Applicant. 12. Mr Pocock was the Applicant's manager up until late 2019. In or around early 2019, Mr Pocock said to the Applicant words to the effect of (Mr Pocock's Direction): "Jessica has given me a form regarding shift swapping. You guys need to fill in this form when you swap shifts." 13. The Applicant understood that Mr Pocock was referring to Ms Jessica Montaner, the Respondent's Engineering Services Manager, who Mr Pocock reported to. The form that Mr Pocock provided to the Applicant and his colleagues to swap shifts (Swap Shifts Form) was different to the form that was provided to the Applicant during his interview with the Respondent on 30 July 2019… The Applicant had not seen that form previously. 14. Following Mr Pocock's Direction, when the Applicant next changed a shift, on 25 April 2019, the Applicant completed a Swap Shifts Form n order to swap his shift. As a former serviceman, the Applicant swapped his shift on 25 April 2019 so that he could take part in ANZAC Day marches. There were no issues that arose from this. The Applicant did not swap shifts again for the remainder of 2019. 15. The Applicant did not swap shifts between when he received Mr Pocock's Direction and the date of the Investigation Report, other than on 25 April 2019, and he used the Swap Shifts Form required. 16. The Applicant acknowledges that he swapped shifts prior to Mr Pocock's Direction without obtaining formal approval from his managers. At all times prior to Mr Pocock's Direction, the Applicant believed that this was permitted, given that his managers had indicated that shift swapping was allowed as long as someone performed the shift. 17. However, the Applicant acknowledges that it may have been more prudent for him to inform his managers when swapping shifts prior to Mr Pocock's Direction. That said, the Applicant submits that the termination of his employment remains considerably harsh and was a significantly disproportionate outcome. 18. The Investigation Report and the Show Cause Letter state that the Respondent does not know the dates that the Applicant swapped shifts with Mr Hahu. The Applicant submits that: a) before Mr Pocock's direction, he was authorised to swap shifts with his colleagues, including Mr Hahu, without obtaining formal approval; and b) he obtained formal authorisation to swap his shift on 25 April 2019 (by completing a Swap Shifts Form), and that this was the only shift he swapped after Mr Pocock's Direction and before the date of the Investigation Report. 19. In these circumstances, the Applicant submits that he did not engage in conduct that warranted the termination of his employment. Dismissal 20. The Applicant submits that the dismissal was harsh, unreasonable and unjust for at least the following reasons. No basis in fact for the Applicant's dismissal 21. First, there was no reason that "had a basis in fact", as contemplated by section 88(b) of the Industrial Relations Act 1996 (NSW) (IR Act) for the dismissal. 22. In relation to the first disciplinary matter, the Applicant submits that the final warning should have limited if any weight, for the reasons stated. 23. In relation to the second disciplinary matter, the Applicant at all times complied with the established custom and practice in relation to swapping shifts and otherwise in accordance with Mr Pocock's Direction. Even if there was some failing by the Applicant in that regard, which is denied, it did not justify the termination of his employment, particularly in circumstances in which: a) the Applicant was never formally warned about swapping shifts and the consequences that could arise; b) the more serious allegation against the Applicant, that he engaged in a cash payments arrangement in relation to swapping shifts, was unsubstantiated; and c) the Applicant had accrued over thirteen years of employment with the Respondent with a relatively good employment record overall. No warning 24. Second, there was no proper "warning of unsatisfactory performance" before the Applicant's dismissal, as contemplated by section 88(c) of the IR Act. Harshness 25. Third, the Applicant submits that the dismissal of the Applicant is otherwise manifestly harsh, pursuant to sub-section 88(f) of the IR Act, because of: a) the Applicant's strong disciplinary record; b) the harsh impact of the termination on the Applicant financially and emotionally; c) the difficulty that the Applicant will experience in obtaining comparable employment, particularly given his age (58 years old). The Applicant has attempted to mitigate his loss by applying for new employment, however, he has to date not been successful in these applications; and d) the timing and difficulty caused by the COVID-19 pandemic. 26. The Applicant seeks reinstatement to the Position pursuant to section 89(1) of the IR Act, and/or compensation for lost income. 1. The Employer's Reply filed by the respondent on 1 July 2020 contained the following: 1. Mr John Dul was employed as a Fitter/Motor Mechanic, Engineering Services at Royal Prince Alfred Hospital (RPA) with the Secretary, NSW Ministry of Health, in respect of Sydney Local Health District (the Respondent). 2. The Respondent received concerns raised with a number of staff, including Mr Dul, in the Control Room swapping shifts without following process and approval between 23 March 2018 and 31 August 2018. The allegations relating to Mr Dul were that he worked two (2) shifts of Mr Edward Hahu, Fitter/Motor Mechanic, RPA Engineering Services. Furthermore, it was alleged that Mr Dul did not seek approval to work these shifts. 3. The Respondent conducted an investigation into the allegations. The investigation team interviewed the person raising the concerns, the staff involved in the shift swaps, reviewed timesheets/rosters as well as change of shifts applications made by other staff including Mr Hahu from 2014. 4. The investigation team in their report noted a directive issued in March 2013 to the Control Room staff which required written approval for shift swaps (Directive). Additionally, the investigation report noted that Mr Dul reported in writing that Mr Hahu owed him shifts. 5. The investigation team in their report substantiated, on the evidence, that the Directive regarding the process for shift swaps was hand delivered to all Control Room staff. Furthermore, the investigation report substantiated that Mr Dul "had known about the process for shift swaps, but preferred to swap shifts without written authorisations". 6. Moreover, Mr Dul "did not seek approval from his supervisor and/or the authorised person responsible for roster changes", "presented to work" for Mr Hahu's shifts and was engaged in the breach of the "shift swap process for actions of personal gain", as found by the investigation report. 7. The investigation team concluded Mr Dul's actions were in breach of the NSW Health Code of Conduct. Specifically, in relation to the obligations to "ensure their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives". Furthermore, the investigation report found that Mr Dul breached "complying with all lawful and reasonable directions given by their managers". 8. On 5 February 2020, the Respondent wrote to Mr Dul providing him with an opportunity to respond to the findings of the investigation report and to show due cause why a recommendation should not be made for the termination of his employment on the basis of a serious form of misconduct and breaches of the NSW Health Code of Conduct. 9. Mr Dul provided a written response dated 21 February 2020. The Respondent noted that Mr Dul's response did not reconcile with the findings of the investigation report as he failed to appreciate the seriousness of the misconduct. The Respondent lost trust and confidence in Mr Dul's ability to comply with his obligations arising from the NSW Health Code of Conduct and from his employment contract. 10. The Respondent noted that Mr Dul received a Final Warning on 1 July 2016 for a serious omission of duty of care and a breach of the NSW Health Code of Conduct for an incident on 18 September 2015. The Respondent provided Mr Dul with an opportunity to respond to the alleged conduct on 4 March 2016. 11. The Respondent considered Section 119 of the Health Services Act 1997 where the protection of patients, clients and children is of paramount consideration when determining disciplinary actions against a staff member. After careful consideration, Mr Dul's employment was terminated for engaging in a serious form of misconduct for personal gain as well as breach of the NSW Health Code of Conduct. 12. The Respondent notes that Mr Dul's Application is filed 25 days after the dismissal date, which is 4 days out of time. The Respondent contends that the application is not within jurisdiction. 1. The respondent's jurisdictional objection on the basis that the Application was filed outside the 21 day time limit provided for in section 85(1) of the Industrial Relations Act 1996 ("Act") was not pressed during the hearing of the Application. Accordingly, the Application will be determined on its merits.