Industrial Relations Commission New South Wales Medium Neutral Citation: Rahman v Health Secretary in respect of the Sydney Local Health District and the South West Sydney Local Health District [2021] NSWIRComm 1065 Hearing dates: 12, 13 and 14 May 2021, final submissions received 4 August 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The applications are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – Security officer intervened in patient restraint – absence of direction to intervene – consideration of gravity of physical conduct – verbal altercation with co-worker following the restraint – whether conduct was misconduct warranting termination of employment – impact of termination at one Local Health District on employment at another – whether dismissal harsh, unreasonable or unjust Legislation Cited: Health Services Act 1997 Ch 9, ss 119, 121 Industrial Relations Act 1996 s 84 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australia Airlines Ltd (1995) 185 CLR 410 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Shepherd v Felt & Textiles Australia Ltd (1931) 45 CLR 359 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Nil Category: Principal judgment Parties: Mustafizur Rahman (Applicant) Health Secretary (Respondent) Representation: Counsel: A Canceri (Applicant) A Britt (Respondent) Solicitors: WorkLawyers (Applicant) File Number(s): 2020/187907 and 2020/266802 Publication restriction: No decision 1. Mustafizur (also known as Mustafa) Rahman was employed as a Security Officer at the Concord Repatriation General Hospital ("Concord Hospital"), which falls under the auspices of the Sydney Local Health District ("SLHD"). Under a separate employment contract, he was also employed as a Security Officer at Fairfield Hospital, which is in the South West Sydney Local Health District ("SWSLHD"). 2. On 2 November 2019 Mr Rahman was involved in the transfer of a mental health patient from her ward to a seclusion room, during which nurses were required to restrain the patient. It was alleged that he intervened inappropriately in the patient restraint, including in his physical interactions with her. It was further alleged that in the immediate aftermath of the incident Mr Rahman spoke inappropriately to a nurse who had been involved in the patient restraint, including by swearing and acting in an aggressive and intimidating manner towards him. 3. Following an investigation into the events of 2 November 2019, Mr Rahman's employment with the SLHD was terminated on 11 June 2020. 4. On 24 June 2020 Mr Rahman commenced proceedings pursuant to s 84 of the Industrial Relations Act 1996 ("Act"), alleging that his dismissal from the SLHD was harsh, unreasonable or unjust. He sought reinstatement to his position at Concord Hospital or, failing that, orders for re-employment or compensation. 5. On 16 August 2020, directly as a consequence of his dismissal from the SLHD, Mr Rahman's employment with the SWSLHD was also terminated. 6. Mr Rahman commenced further proceedings pursuant to s 84 of the Act in respect of his dismissal from the SWSLHD. Those proceedings were commenced on 7 September 2020. Mr Rahman sought reinstatement to his position at Fairfield Hospital or, failing that, orders for re-employment or compensation. 7. On 14 October 2020 I ordered, by consent, that the proceedings be joined. Factual context 1. Mr Rahman commenced employment at Fairfield Hospital on 12 January 2010, initially on a casual basis before becoming a full-time employee on 6 July 2016. He commenced at Concord Hospital on a full-time basis on 3 February 2014, becoming causal on 6 July 2016, coinciding with and to accommodate the change in his status at Fairfield Hospital. 2. It was at all times a condition of Mr Rahman's employment with both the SWSLHD and the SLHD that he comply with the policies and procedures issued by his employer. He also undertook training, including in courses titled "Violence Prevention and Management – Awareness", "Violence Prevention and Management – Team Restraint Techniques", "Restraint and Seclusion", "Code of Conduct", "Introduction to Aggressive Behaviours", "De-escalate Aggressive Behaviours" and "Manage Aggressive Behaviours". Events of 2 November 2019 1. On 2 November 2019 Mr Rahman was at work at Concord Hospital. At approximately 5.15pm he responded to a "Code Black" duress alarm from the Manning Ward, which is a mental health ward and secure facility at the hospital. According to the SLHD Mental Health Services Policy, a Code Black incident is defined as one involving a "personal threat – armed or unarmed persons threatening injury to others or themselves". [1] That policy further provides: [2] "Duress Alarms are necessary for the personal security of Sydney Local Health District Mental Health staff who may be subject to acts of aggression or other high risk situations. … The duress alarm system should be activated in any circumstance or situation in which staff require the urgent assistance of other staff, for example in the case of a psychiatric emergency, an aggressive incident or a threat to person or property." 1. The Mental Health Services Policy also provides that Security staff are responsible for following the directions of the designated team leader on arrival at the duress alarm location. 2. Mr Rahman attended the Manning Ward accompanied by Omid Hoviezavi, another Security Officer. He said that they were informed by the "team leader" that a patient ("the Patient") "was experiencing mania and the night before had jumped on the counter and [they] had to be cautious". [3] They were to assist in escorting the Patient from her room to the "seclusion room". The seclusion room is one into which patients may be placed who are demonstrating aggressive behaviour. It is furnished with only a mattress. 3. NSW Health has a procedure titled "Aggression, seclusion and restraint: Preventing, minimising and managing disturbed behaviour in mental health facilities in NSW" ("Seclusion and Restraint Procedure"). It provides: [4] "4.5 Staffing When a consumer is physically/manually restrained or placed in seclusion, the following principles apply: • The team managing the incident must be led by a senior nurse or Medical Officer (M.O.) who will coordinate the team, detail the role of each team member, note the time of commencement and completion of any physical/manual restraint and keep any face down restraint within the 2-3 minute limit. …" 1. It is reasonably clear that to the extent that there was any briefing prior to the patient restraint being undertaken, Ms Gorska-Ivanov, who was the registered nurse in charge at the time, did not "detail the role of each team member", and in particular the role to be performed by Messrs Rahman and Hoviezavi. This is a matter on which Mr Rahman placed some reliance, but for the reasons which follow I do not regard it as having particular significance in the circumstances of this case. 2. Five registered nurses were involved in moving the Patient to the seclusion room: Taylor Kay-Smith, Min Sung (Marcus) Yoo, Gus Bernardi, Lucy Wang and Ms Gorska-Ivanov. They were accompanied by Mr Rahman and Mr Hoviezavi. Each of these individuals gave evidence in these proceedings. 3. The Patient was described by Mr Yoo as a "quite tall and well built lady". [5] Ms Gorska-Ivanov stated that the Patient was "quite large" and "very strong". [6] Mr Rahman described her as being of solid build and estimated her weight to be approximately 80 kilograms. 4. Mr Kay-Smith and Mr Yoo placed the Patient in what was described as a "VPM Level 3 hold". In broad terms, this involved Mr Kay-Smith and Mr Yoo standing either side of the Patient and immobilising her arms. Mr Rahman produced a document titled "Violence Prevention and Management – Team Training Techniques – Participant Manual" ("VPM Manual"), prepared by the Health Education and Training Institute. It stated: [7] "The Level 3 is a more secure hold than Level 2. This hold is performed as a team approach where the threat of, or actual assault or combativeness is present." 1. During the course of escorting the Patient to the seclusion room, she demonstrated physical and verbal aggression, and resistance to being placed into seclusion. Mr Yoo described the Patient as being "highly agitated, combative" and pulling away from he and Mr Kay-Smith. [8] He further stated: [9] "So on the course ‑ way to the seclusion she was ‑ yes, like I mentioned before, she was like refusing to go in and ‑ I mean, it's also subject to like – it's like, you know, dangling sometimes, like, you know, she is trying to kick or stopping herself against the walls and stuff like that. Yes, and she was still struggling, and I said combative, when she was fully restrained, you know, both arms on prone positions." 1. Mr Bernardi stated that "on approaching the seclusion room the Pt [sic – patient] started thrashing her body and attempting to break the hold of the RNs present". [10] He confirmed this recollection several times during his oral testimony. In response to questions from me, Mr Bernardi stated that the Patient was thrashing about in an attempt to break the hold which Mr Kay-Smith and Mr Yoo had on her. 2. The Patient was escorted towards the seclusion room, but just outside the room the nurses met particular resistance from the Patient. Mr Rahman placed his hands on the Patient's upper back and began to push the Patient towards the seclusion room. Mr Kay-Smith asked him to stop doing so and he immediately desisted. 3. Mr Yoo deposed that it was necessary to use force to get the Patient into the seclusion room. Once inside the seclusion room the Patient continued to struggle against Mr Kay-Smith and Mr Yoo. While only a step away from the mattress, the Patient refused to move forward. She kicked her legs in an attempt to break free. Mr Rahman knelt behind the Patient and wrapped his arms around her legs in an apparent attempt to secure them. This caused the Patient, Mr Kay-Smith, Mr Yoo and Mr Rahman to fall onto the mattress. 4. While on the mattress the Patient continued to struggle. Mr Yoo described having to use "all [his] force and body energy" to restrain her. [11] Mr Bernardi recalled that her legs continued to thrash around. 5. At a point, the Patient's legs came to be apart, held by Mr Rahman. How this occurred is central to one of the allegations brought against him, and it will be necessary to return to it. 6. Mr Kay-Smith asked Mr Rahman to leave the room, which he did. 7. Once the Patient had been secured and medicated, Mr Kay-Smith left the seclusion room. There followed a verbal exchange between he and Mr Rahman. Again, it will be necessary to return to the details of that exchange. 8. Later on 2 November 2019, Ms Gorska-Ivanov completed a document titled "Mental Health Service Restraint Register" ("Restraint Register"). Under the heading "Reason for restraint" she had ticked the boxes titled "Aggression", "Aggression to others", "Aggression to staff" and "Threatening to harm others". The Restraint Register is included as an attachment to the statements of each of Ms Gorska-Ivanov, Mr Bernardi, Mr Kay-Smith, Ms Wang and Mr Yoo, none of whom challenged its contents in this respect. Ms Wang and Mr Yoo deposed in their oral testimony that they could recall the Patient demonstrating the behaviours described in the Restraint Register. 9. I observe that the Restraint Register states that the duration of the patient restraint, as described above, lasted two minutes, from 5.15pm to 5.17pm. This suggests that events moved quickly, lending weight to the evidence of some of the witnesses who described the events as chaotic, even adrenaline-filled. Investigation and dismissal from SLHD 1. As a result of concerns raised as to Mr Rahman's conduct on 2 November 2019, an investigation was commenced ("Investigation"). The Investigation was conducted by Brenda Bradbery, a Senior Workforce Development Consultant in the SLHD, and Loren Sharrock, the Acting Operational Nurse Manager at Concord Hospital. The "Terms of Reference" for the Investigation made reference to eight allegations having been raised against Mr Rahman. 2. Mr Rahman was informed of the Investigation in a letter from Rita Rickard, the Workforce Manager of the SLHD, dated 13 November 2019. The letter outlined the allegations that had been made against Mr Rahman. The letter informed him that he would not be offered work while the Investigation was conducted and that his name was to be placed on the Service Check Register. 3. Over the course of the Investigation, the allegations against Mr Rahman were distilled into six, namely: 1. "Mustafa Rahman intervened in a patient restraint despite not being requested to do so by clinical staff." 2. "Mustafa Rahman pushed the patient into the seclusion room despite not being requested to do so by clinical staff." 3. "Mustafa Rahman tackled the patient causing patient and staff to fall onto the mattress despite not being asked to do so." 4. "Mustafa Rahman positioned himself between the prone patient's legs and intentionally spread the patient's legs with his hands." 5. "Following the patient restraint, when Taylor Kay-Smith attempted to discuss how Mustafa Rahman handled the patient, Mustafa Rahman swore at and argued with Taylor Kay-Smith in an aggressive and intimidating manner." 6. "During the interaction at the nurses [sic] station Mr Rahman was not accepting of any feedback and pointed his finger towards Mr Kay-Smith's face within a close proximity in a hostile, aggressive and intimidating manner." ("Allegations") 1. As part of the Investigation, Mr Rahman was invited to be interviewed by Ms Bradbery and Ms Sharrock. On legal advice he declined an interview and instead provided a written response to the Allegations. 2. In a report dated 28 February 2020 Ms Bradbery and Ms Sharrock set out the findings of the Investigation ("Investigation Report"). Each of the Allegations was found to be substantiated and in each case this was said to amount to misconduct. 3. On 24 April 2020 Gina Finocchiaro, the Director Workforce & Corporate Operations of the SLHD, wrote to Mr Rahman. The letter stated that it enclosed a copy of the Investigation Report. The letter further stated: [12] "The investigation report made findings your behaviour and conduct was in breach of the NSW Health Code of Conduct (PD2015_049), as well as CORE Values. Furthermore, your conduct when handling a patient is in contravention to the NSW Health Preventing and Managing Violence in the NSW Health Workplace – a Zero Tolerance approach (PD 2015_001), SLHD Duress Alarm – Inpatient Services Policy (MH_SLHD 2019_005), VPM Team Restraint principles and NSW Health Aggression, Seclusion and Restraint in Mental Health Facilities in NSW Policy (PD 2012_035). Concerns raised On review of the above allegations, the investigation report raises serious concerns arising from your substantiated misconduct. For example, the investigation report substantiated that you handled a patient in an inappropriate manner. You intervened with redirecting, repositioning and restraining against the expected standards and despite not being requested or directed by clinical staff to do so. This conduct adversely affects patient care and safety and is an example of breaches to the expected standards as per the Preventing and Managing Violence in the NSW Health Workplace Policy. Another example is the investigation report found that you swore at and argued with another staff member in an aggressive and intimidating manner which is a breach of the NSW Health Code of Conduct, in particular, Promote a positive work environment (4.1) and Acting professionally and ethically (4.3). Furthermore, it was found that when you pointed your finger towards another staff member's face within close proximity in a hostile, aggressive and intimidating manner this was considered threatening and a breach of the NSW Health Code of Conduct Policy, Promote a positive work environment 'Treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach' (Subsection 4.1.3). … In light of the findings of the investigation report, I am writing to provide you with the opportunity to comment on the findings of the investigation report and to show due cause as to why a recommendation should not be made to the Chief Executive for the termination of your employment on the basis of breaches of the Code of Conduct and unsatisfactory professional conduct as identified in the investigation report." (Reproduced verbatim) 1. By letter dated 29 May 2020, Mr Rahman responded to Ms Finocchiaro's letter. Mr Rahman stated that he did not consider that his employment should be terminated. He further stated: [13] "In relation to the allegations that I incorrectly intervened and handled the patient. Although at the time I acted in a manner consistent with my obligations as a Security Officer, I understand that my conduct as lacking, however my actions at that time was intended to help control the violence and aggression and assist the nursing staff. On reflection, I have accepted that if a similar situation was to come about again I would not act in a similar manner. In relation to my interaction with Mr Kay-Smith following the situation. I accept that my interaction with Mr Kay-Smith following the duress situation was lacking in professionalism I apologise for my actions and if given the opportunity would like to personally and genuinely apologised to him and any other Nursing Staff who may have been upset by my actions. I have never acted in this matter in the past and will not do so again. In relation to my interaction with Mr Kay-Smith with me not accepting feedback from Mr Kay-Smith. At the time, I had thought I acted in accordance with my obligations as a Security Officer and when Mr Kay-Smith advised me otherwise I was concerned about his views which resulted in me responding in a manner that may have been perceived as unprofessional. On reflection, I should have accepted Mr Kay-Smith's criticisms and used them to improve myself following the event. …" (Reproduced verbatim) 1. On 11 June 2020 Dr Teresa Anderson, the Chief Executive of the SLHD, wrote to Mr Rahman stating, in part: [14] "After due consideration of this matter, I inform you that I have lost trust and confidence in your ability to comply with your obligations arising from the NSW Health Code of Conduct and for you to safely and adequately perform the inherent requirements of your position as a Security staff member. Your misconduct and breach of policy raise significant concerns with me as to your ability to meet your obligations as an employee of the SLHD. On this basis you will no longer be afforded any future casual shifts. …" Dismissal from SWSLHD 1. On 11 June 2020 Mr Rahman spoke to Suchit Handa, the Director of Corporate Services at Fairfield Hospital who was Mr Rahman's "two up" manager, and Joseph Pineda, the Manager of Human Resources at Fairfield Hospital. Mr Rahman informed Mr Handa and Mr Pineda that his employment with the SLHD had been terminated and showed them the letter he had received from Dr Anderson. 2. A Policy Directive titled "Managing Misconduct" ("Managing Misconduct Policy") applies in NSW Health, which provides: [15] "9.3 Action arising from termination of employment or appointment Where a staff member's appointment is terminated in one part of the NSW Health Service following a finding of misconduct, the termination will apply to any other employment across the NSW Health Service. All other NSW Health organisations where the staff member holds employment must be notified of the termination. However, a process is available to staff members to 'show cause' as to why the termination should not apply to their other employment in the NSW Health Service. …" (Emphasis in original) 1. Pursuant to the Managing Misconduct Policy, on 11 June 2020 Paul Crowe, the General Manager of Fairfield Hospital, wrote to Mr Rahman, stating in part: [16] "Like SLHD, SWSLHD too has obligations under section 119 of the Health Services Act 1997 to protect patients, clients and children. As a NSW Health employee, and Security Officer, you are expected to demonstrate the highest levels of integrity. I have determined that your conduct at SLHD is unacceptable and not of the standard required by a NSW Health employee at our service. Accordingly, under clause 9.3 of the NSW Health Policy Directive Managing Misconduct (PD 2018_031), I am considering terminating your employment. Prior to making this recommendation to the Chief Executive, I am providing you with the opportunity to comment on the recommendation to terminate your employment under clause 9.3 of the NSW Health Policy Directive Managing Misconduct (PD 2018_031). … As this matter is now the subject of a show cause process…you will not be required to attend work pending the outcome of SWSLHD's considerations. You will continue to receive pay during the period of suspension. …" 1. By letter dated 2 July 2020, Work Lawyers responded to Mr Crowe's letter on behalf of Mr Rahman. The letter stated that Mr Rahman had never been the subject of disciplinary proceedings or complaints during his employment with the SLHD. Attached to the letter were a number of documents said to reflect positive commendations, support and gratitude from people he had worked with during his employment. Significantly, the letter denied the allegations which had resulted in the termination of his employment with the SLHD. The letter asserted that Mr Rahman had already suffered the loss of his position at Concord Hospital and urged Mr Crowe to consider the harsh consequences of losing both of his positions, for one incident, occurring in a different hospital. 2. On 16 August 2020 Amanda Larkin, the Chief Executive of the SWSLHD wrote to Mr Rahman, stating in part: [17] "After careful consideration of the circumstances, I concur with SLHD's decision to terminate your employment on the basis that your conduct at SLHD was of the most serious kind and constitutes a serious breach of the NSW Health Code of Conduct and NSW Health Preventing and Managing Violence in the NSW Health Workplace – a Zero Tolerance Approach (PD2015_001). As you are aware, where a NSW Health employee's employment is terminated in one part of the NSW Health Service following a finding of misconduct, the termination will apply to any other employment across the NSW Health Service. It is on this basis that I have determined to apply their decision to terminate your employment to your employment at SWSLHD in accordance with clause 9.3 of the NSW Health Managing Misconduct Policy Directive (PD2018_031). This termination is effective immediately and your last day of service will be today. Notwithstanding the serious nature of your misconduct, you will be paid five (5) weeks' pay in lieu of notice. …" Secondary and subsequent employment 1. In or before June 2020 Mr Rahman obtained work through a labour hire company called Protech Personnel (NSW) Pty Ltd ("Protech Personnel") performing manufacturing assembly work for a client of that company. When that client changed its labour hire provider to CoreStaff NSW Pty Ltd, Mr Rahman became engaged through that company. 2. Between 5 August 2020 and 15 October 2020 Mr Rahman also received payment from Momentum Consulting Group Pty Ltd ("Momentum Consulting") for work as a "process worker". 3. In December 2020 Mr Rahman secured further work as a security guard through a company called MGT Security Services Pty Ltd. He is employed by that company on a casual basis. Relevant legal principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. To be entitled to any remedy under the Act, the onus is on Mr Rahman to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. 3. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the Health Secretary to make out her case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. 4. Mr Rahman was employed in the NSW Health Service within the meaning of Ch 9 of the Health Services Act 1997. Relevantly for these proceedings the Health Services Act provides: 119 Protection of patients, clients and children to be paramount consideration The protection of a public health organisation's patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff under this Part. … 121 Effect of Part (1) (Repealed) (2) Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to the termination of his or her employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to section 119 of this Act. Reliability of testimony 1. Before turning to consider the merits of the matter, it is necessary to address submissions made by both the Health Secretary and Mr Rahman regarding credit. 2. The Secretary submitted that the Commission ought to make adverse findings as to Mr Rahman's credit. Its submissions in this regard were reasonably extensive and I do not propose to traverse them all. I have had particular regard to the following matters: 1. In his letter of 29 May 2020 referred to at [34] above, Mr Rahman stated that he was not making excuses and accepted responsibility for his actions. This is in distinct contrast to the letter from Work Lawyers dated 2 July 2020 referred to at [39] above, which stated that Mr Rahman denied the Allegations. It is also inconsistent with the approach he took to these proceedings, in which he deposed that "on reflection, it is unclear what I have done wrong". [18] During cross-examination he came to make concessions, although not always readily, that he had engaged in wrongdoing. 2. There were other inconsistencies in the position presented by Mr Rahman to the Commission. For example, he accepted under cross-examination that Mr Kay-Smith had criticised him as having put the Patient at risk and, further, that these criticisms were correct. That is, Mr Rahman conceded that he did in fact put the Patient at risk. Under re-examination, however, Mr Rahman resiled from this position and stated that he had not placed the Patient at risk. 3. The Health Secretary issued a notice to produce requiring Mr Rahman to produce, amongst other things, statements in respect of any bank or credit union accounts held by him. It was apparent that he did not fully comply with the notice to produce. 4. On a related point, Mr Rahman was also not originally forthcoming in disclosing all of the employment which he had obtained prior to or subsequent to the termination of his employment with the SWSLHD. Further in this regard, in his evidence in chief Mr Rahman stated that he had commenced employment with Protech Personnel approximately one month after finishing at Fairfield Hospital. The records demonstrated, and Mr Rahman conceded under cross-examination, that he was employed with Protech Personnel as at June 2020. 5. Having observed Mr Rahman under cross-examination on these issues, I was left with the disturbing impression that he may have been attempting to conceal the full extent of his earnings, before and after the termination of his employment by the Health Secretary. 6. Mr Rahman deposed that he had "never received any complaints from anyone regarding [his] work with the Respondent at any hospital". [19] This was shown, and ultimately conceded by Mr Rahman, to be false. 1. Mr Rahman read affidavits from Dr Mohammad Faruque and Brent Thomas. Dr Faruque worked with Mr Rahman between 2008 and 2013. Mr Thomas, a Security Officer at Fairfield Hospital, worked with Mr Rahman between February 2011 and November 2019. Both affidavits were in the nature of testimonials. I have taken them into account in forming my assessment as to Mr Rahman's credit and the proceedings generally. 2. Overall, and having had the benefit of watching Mr Rahman give evidence, I accept that questions arise as to his credibility. It is necessary to approach his evidence with some caution. 3. For his part, Mr Rahman submitted that Mr Kay-Smith, on whose evidence the Health Secretary placed significant reliance, was not a credible witness. Mr Kay-Smith was adamant that the Patient did not demonstrate any physical aggression during the restraint procedure. He described her as refusing to move rather than physically struggling. 4. Mr Kay-Smith's recollection is at odds with those of the other registered nurses who were present at the time and that of Mr Rahman. It is also inconsistent with the fact that a duress alarm in the form of a Code Black had been made; that he and Mr Yoo saw it necessary to place the Patient in a VPM Level 3 hold; and the contents of the Restraint Register, which Mr Kay-Smith annexed to his statement in these proceedings without calling into question its contents. 5. Mr Rahman submitted: [20] "54. It is submitted that Mr Kay-Smith was a witness lacking credibility primarily because in his evidence before the Commission he sought to downplay the level of physical aggression displayed by the patient when he and Mr Yoo had a hold of her. Mr Kay-Smith also generally downplayed the patient's level of aggression before the patient was taken to the seclusion room. By downplaying the patient's level of aggression, Mr Kay-Smith ensured that the actions of Mr Rahman took on a different complexion to what they otherwise would if the Patient was found to be quite aggressive." 1. During his oral testimony I had the following exchange with Mr K Smith: [21] "Q. Am I right in understanding that the effect of your evidence, at least in part, Mr Kay‑Smith, is that you had entered the seclusion room and were standing in a VPM3 hold on the patient about 20 centimetres away from the mattress, so far, so good? A. Yes. Q. She wasn't physically resisting in anyway, other than perhaps moving her shoulders slightly? A. Correct. Q. All of a sudden and for no apparent reason, Mr Rahman came in and crash tackled her to the mattress. Is that what you say happened? A. Yes. She had stated, 'No'. Q. And having done that for no apparent reason, he then, to add insult to injury, for no apparent reason, intentionally or deliberately parted her legs as wide as possible into an open scissor position? A. Yes." 1. The version of events that Mr Kay-Smith would have the Commission believe is inherently implausible. Having considered his evidence in light of the totality of the evidence, and observing his attitude and demeanour in the witness box, I accept the submissions made by Mr Rahman reproduced at [55] above. His evidence must also be approached with caution. Consideration The Allegations 1. Mr Rahman was dismissed as a consequence of the Allegations having been substantiated, and the determination that they amounted to misconduct warranting termination of employment. It is convenient to commence by considering whether these conclusions were sound. Allegation 1 1. Allegation 1 was in these terms: Mustafa Rahman intervened in a patient restraint despite not being requested to do so by clinical staff. 1. The evidence overwhelmingly demonstrated that when a restraint procedure is adopted in response to a duress alarm, the leading clinician issues the necessary instructions. As noted at [11] above, the Mental Health Services Policy requires Security staff to follow the directions of the designated team leader on arrival at a duress alarm location. In short, Security staff are generally not to intervene unless and until asked to do so. 2. There was no dispute on the evidence that to the extent that he intervened in the restraint, Mr Rahman did so of his own volition and without being instructed to do so by one of the nurses present. I note in particular the following exchanges during the cross-examination of Mr Rahman: [22] "Q. Then you say you used reasonable force to move her inside the room? A. Yes, sir. Q. No one asked you to use reasonable force? A. Yes, sir. Q. You knew that you should not act unless directed to do by the medical staff? A. Yes, sir. Q. And notwithstanding that you decided to act? A. Yes, sir. Q. Knowing that that was inappropriate? A. I believe that time was appropriate. Q. Understood at all times you had to act on direction? A. Yes, sir. Q. You hadn't received a direction? A. Yes, sir. The reason was that they handling the patient was technique was wrong. Q. I will get to that. Did you tell them that you thought how they were handling the patient wrong? A. No, sir. Q. You just thought you would jump in and act? A. My way was assisting. Q. What was that, sir? A. My way was assisting them. Q. They didn't ask for assistance, did they? A. That's correct, sir. Q. You knew you had to wait to be asked? A. Yes, sir." And further: [23] "Q. You understood, sir, that you were not to intervene unless directed by a member of the medical staff and I asked you that today and you have agreed to it; correct? A. Yes, I do but that is a legal ‑ I mean a real situation sometimes you have no time to communicate. As a security officer I'm just telling that. Q. I want to suggest to you, sir, that it is fundamental to your role that you take direction from the medical staff? A. Yes, sir. Q. It was fundamental to your role in this situation where a patent is being moved into a room that you take direction from the medical staff? A. Yes, sir. Q. You elected not to? A. Yes, sir." 1. There can be no question that the facts of Allegation 1 are made out. Allegation 2 1. Allegation 2 was in these terms: Mustafa Rahman pushed the patient into the seclusion room despite not being requested to do so by clinical staff. 1. Mr Rahman deposed that he had placed his hands on the Patient's upper back and used "reasonable force to move her inside the room". [24] Under cross-examination he acknowledged on several occasions having pushed the Patient, but repeatedly stated that it was in the nature of "guiding" her. He accepted that this was "against VPM principles". [25] 2. It is important to see the words in the Allegation – "pushed the patient" – in this light. It was not a forcible shove, for instance. It is significant that Mr Kay-Smith's recollection coincided with that of Mr Rahman. Mr Kay-Smith was interviewed during the Investigation and the transcript of that interview is annexed to his statement in these proceedings. It records him as stating: [26] "So he approached from behind the patient and I think placed…no he did, placed both of his hands, open palm, palm to her back around the shoulder blade area and I intervened prior to any force…real force kind of coming. There was a bit of pressure and I said to him – 'Stop, stop, stop' – And he stopped…" (Emphasis added) 1. It is relevant that as soon as Mr Rahman was asked to stop pushing the Patient he complied. 2. That said, there is no question that Mr Rahman placed his hands on the Patient's upper back and pushed her, without having been directed to do so by a member of the clinical staff. In a highly-charged situation, Mr Rahman was not to know what impact his sudden, and presumably unexpected, physical contact with the Patient may have had on her. This is presumably one of the reasons why in such situations Security Officers are to act only on instruction from the clinicians. 3. Mr Rahman acknowledged that he was required to wait for directions to intervene, but sought to argue that in some situations it is not appropriate to do so. I can envisage situations of particular gravity where a Security Officer may be required to intervene for reasons of safety and security, even in the absence of a direction to do so. In the present case, however, while I accept that the Patient was physically resisting going into the seclusion room, Mr Rahman has not explained why his intervention at that point was necessary. 4. I am satisfied that Allegation 2 has been made out. Allegation 3 1. Allegation 3 was in these terms: Mustafa Rahman tackled the patient causing patient and staff to fall onto the mattress despite not being asked to do so. 1. In respect of this Allegation the Health Secretary once again relied principally on Mr Kay-Smith's recollection of events. In his interview with Ms Bradbery and Ms Sharrock during the Investigation he stated that Mr Rahman "knelt or leaned down behind [the Patient] and appeared to wrap both arms around her legs very close to sort of her knee or just below the knee and he pulled her legs out from under her backwards towards the seclusion room door". [27] In his testimony in these proceedings he described the Patient's legs as having been "picked up – pulled behind her". [28] 2. As I have stated, despite Mr Kay-Smith's assertions to the contrary, the evidence demonstrates to my satisfaction that the Patient was physically resisting to being restrained, including kicking her legs. There is no question that Mr Rahman knelt behind her and wrapped his arms around her legs in what he described as an attempt to restrain her. In the course of the struggle the Patient lost her balance and fell onto the mattress. Mr Rahman denied that he lifted the Patient's legs or that he "tackled" her. 3. In his description of events, Mr Bernardi made no reference to Mr Rahman having lifted and pulled back the Patient's legs. On his recollection, the Patient fell "because there was so much struggling". [29] 4. There can be no question that Mr Rahman again intervened in the restraint of the Patient by wrapping his arms around her legs. As she continued to struggle she overbalanced and fell, taking Mr Kay-Smith, Mr Yoo and Mr Rahman with her. 5. The use of the phrase "tackled the patient" in the Allegation suggests an intention to "take her down", consistent with the version of events I put to Mr Kay-Smith in the exchange reproduced at [56] above. I am concerned that the reference to Mr Rahman "tackling the patient" is intended to convey an impression of excessive physical intervention, even aggression, on his part. 6. The Patient was struggling, including kicking out with her legs. Mr Rahman sought to secure her legs, by wrapping his arms around them. This was enough to unbalance her and cause her to fall over. In so far as this was perceived by the SLHD to be a "tackle", that is the extent to which I find Mr Rahman acted. 7. However, Mr Rahman again intervened without being directed to do so. As noted at [50(2)] above, Mr Rahman accepted under cross-examination that his conduct placed the Patient at risk, although he resiled from this position in re-examination. I believe that he did place the Patient at risk, but I would go further and say that he also placed Mr Kay-Smith, Mr Yoo and himself at risk. Allegation 4 1. Allegation 4 was in these terms: Mustafa Rahman positioned himself between the prone patient's legs and intentionally spread the patient's legs with his hands. 1. Mr Rahman denied deliberately spreading the Patient's legs. He stated that her legs had come apart as a result of her struggling and thrashing about on the mattress, and he had had to place his hands on her legs to restrain them. 2. On the evening of 2 November 2019, Mr Bernardi sent an email to Emma Searchfield, the after-hours Nurse Unit Manager, in which he described the events earlier in the evening. In that email he stated: [30] "As the resisting Pt [sic – patient] was brought by clinical staff onto the mattress in the seclusion room one of the security officers (a 'bald man'), stepped-in in front of me and when the Pt was in a prime position this security officer moved the Pt's legs in an open-scissor position." 1. It was accepted in the proceedings that Mr Rahman was the "bald man" to whom Mr Bernardi was referring. 2. Mr Bernardi maintained during these proceedings, including under vigorous cross-examination, that he saw Mr Rahman move the Patient's legs apart. 3. Mr Kay-Smith gave a consistent version of events. I am mindful that he was copied into Mr Bernardi's email of 2 November 2019, and that when he was interviewed during the Investigation he also made reference to the Patient's legs being moved into "an open scissor position". [31] However, he put this down to coincidence. Like Mr Bernardi, Mr Kay-Smith's recollection was not shaken on cross-examination. 4. It is also possible to draw inferences from what was said during the exchange between Mr Rahman and Mr Kay-Smith in the aftermath of the incident. In his email of 2 November 2019 Mr Bernardi stated that he heard Mr Kay-Smith say to Mr Rahman "I need to speak to you about how to do it properly as you should not have done that". Ms Hye Jung (Hazel) Seung, a Registered Nurse in the Manning Unit, heard Mr Kay-Smith repeatedly saying to Mr Rahman "that is not how we restrain female patients". [32] These comments are consistent with Mr Kay-Smith expressing concern as to the behaviour he had seen Mr Rahman engage in. 5. Ms Gorska-Ivanov stated that to her recollection the Patient's legs were not particularly spread, being perhaps 30 to 40 centimetres apart at the ankles. It must be said, however, that on her own admission her recollection of events was now quite limited. 6. On the weight of the evidence I am satisfied that the Allegation has been made out. The significance of that finding can be seen in the following evidence from Mr Bernardi: [33] "33. …In my view the Applicant had done something wrong with the way he held the patient's legs open on the mattress in the seclusion room which Taylor was trying to correct. I think Taylor was right in telling the Applicant to leave because this sort of inappropriate behaviour can distress the patient or trigger a trauma for the patient." 1. It is important to observe, however, that at no stage was it suggested that Mr Rahman separated the Patient's legs for some prurient or similarly inappropriate reasons. Rather, it seemed to be acknowledged that Mr Rahman had simply been adopting an inappropriate restraint technique. In his interview during the Investigation, Mr Bernardi recalled that the Patient was thrashing around, and stated: [34] "Yeah and maybe he did that when I was thinking now that I'm, maybe he did that to sort of it was, just, just to immobilise her but it's an inappropriate technique." 1. In the circumstances, I think it is most likely that Mr Rahman separated the Patient's legs in an endeavour to secure them. This is a far more plausible explanation than him having decided to do so for no good reason in full view of five registered nurses and a fellow Security Officer. Allegation 5 1. Allegation 5 was in these terms: Following the patient restraint, when Taylor Kay-Smith attempted to discuss how Mustafa Rahman handled the patient, Mustafa Rahman swore at and argued with Taylor Kay-Smith in an aggressive and intimidating manner. 1. Mr Rahman described his exchange with Mr Kay-Smith as follows: [35] "47. Afterwards, I approached the nursing station to obtain Mr Taylor's [sic] name so I could write an incident report. He angrily replied that his name was Taylor. 48. He said words to the effect of: 'You put the patient at risk while I was restraining her.' 49. I said words to the effect: 'I had no other way to restrain her but to hold her legs.' 50. Mr Taylor replied with words to the effect of: 'If I report you, you will lose your job.'" (Italics in original) 1. Mr Kay-Smith denied responding angrily to Mr Rahman or using the words attributed to him at par 50 of Mr Rahman's affidavit. In broad terms, it is Mr Kay-Smith's recollection that Mr Rahman used words to the effect "Who the fuck do you think you are to tell me how to do my job?", "Don't fucking dare!", "You don't get to say that shit, I run things here", "You do as I tell you" and "I can hold her however the fuck I want, if you call us we take over!". Mr Kay-Smith described his own behaviour as "extremely professional and calm". [36] 2. Ms Seung witnessed the exchange. She stated that it was Mr Rahman's raised voice that drew her attention to it, and that Mr Kay-Smith's manner was not at all aggressive, whereas Mr Rahman continually raised his voice to the point where she felt scared. Ms Seung also stated during her oral testimony that she could recall Mr Rahman swearing, using the word "fuck". She could not recall Mr Kay-Smith saying "If I report you, you will lose your job". 3. Mr Yoo deposed that "Mr Rahman was verbally aggressive and abusive towards Mr Kay-Smith on the way out from the seclusion room until we go into the nurse station, and wouldn't stop". [37] He went on to say that Mr Rahman was "extremely verbally aggressive" towards Mr Kay-Smith, whose expression was "stunned". [38] He stated that Mr Rahman's "verbal aggression was extremely high" to the extent that he began to be concerned that "it [was] not going to end peacefully between these two". [39] 4. Mr Hoviezavi stated that he did not hear Mr Rahman swear at Mr Kay-Smith. His recollection was that both of them were speaking loudly. 5. I find that Mr Rahman did speak to Mr Kay-Smith in an aggressive and intimidating manner. The evidence as to whether Mr Rahman swore is more qualified. Very much on balance, I accept that Mr Rahman swore, although I am not persuaded that he did so to the extent attributed to him by Mr Kay-Smith. Allegation 6 1. Allegation 6 was in these terms: During the interaction at the nurses' station Mr Rahman was not accepting of any feedback and pointed his finger towards Mr Kay-Smith's face within a close proximity in a hostile, aggressive and intimidating manner. 1. I find that this Allegation is substantiated. Mr Kay-Smith stated that Mr Rahman "pointed his finger in my face". [40] Ms Seung stated that she saw Mr Rahman walk up to Mr Kay-Smith and point his finger at him, while arguing "in a very aggressive tone". [41] 2. For the sake of completeness I also accept that Mr Rahman was not accepting of the feedback being offered by Mr Kay-Smith. He acknowledged this in his letter of 29 May 2020, referred to at [34] above. Under cross-examination he accepted that Mr Kay-Smith's criticisms of his behaviour were correct. I am not convinced, however, that in the circumstances of this case the assertion properly grounds an allegation of misconduct. There is no evidence, for example, that Mr Kay-Smith had any supervisory or managerial authority over Mr Rahman, under which Mr Rahman might be said to have some responsibility to "accept feedback". Misconduct? 1. The Investigation found each of the Allegations to be substantiated and that in each case Mr Rahman was guilty of misconduct. In the Investigation Report his conduct was said to be in breach of the "NSW Health Code of Conduct" ("Code of Conduct"), a policy described as "NSW Health Preventing and Managing Violence in the NSW Health Workplace – a Zero Tolerance Approach (PD 2015_001)" ("Zero Tolerance Policy"), the Mental Health Services Policy, the Seclusion and Restraint Procedure and the VPM Manual. 2. In her letter of 11 June 2020, referred to at [35] above, Dr Anderson adopted these findings to terminate Mr Rahman's employment with the SLHD. Ms Larkin did similarly in her letter of 16 August 2020, referred to at [40] above, in which she dismissed Mr Rahman from the SWSLHD. 3. The Zero Tolerance Policy is not in evidence. I make no findings as to whether Mr Rahman breached that document. 4. In relation to the Code of Conduct, the Health Secretary submitted: [42] "149. One of those policies is the NSW Health Code of Conduct (Code of Conduct). The Applicant by his conduct on 2 November 2019 has breached the Code of Conduct. Specifically the Applicant by his conduct on 2 November 2019 breached the following parts of the Code: 4.1 Promote a positive work environment Staff must: 4.1.1 Treat patients and members of the public with courtesy and respect and with due sensitivity to the needs of people with different backgrounds and cultures. 4.3 Acting professionally and ethically Staff must: 4.3.1 At all times act in a way which is consistent with NSW Health's duties of care to its patients and clients, and its obligations to provide a safe and supportive environment on its premises for patients and their family members 4.3.5 Carry out their duties diligently and effectively 4.3.8 Comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them 4.3.11 Observe all laws, professional codes of conduct and ethics relating to their profession 4.3.13 Avoid conduct the could bring NSW Health or any of its staff, patients or clients into disrepute, including when using social media 4.3.14 Act in a way which protects and promotes the interests of NSW Health and the particular NSW Health agency where they work" (Reproduced verbatim) 1. The Health Secretary did not put the Code of Conduct, or relevant extracts, into evidence. In the ordinary course this might have caused me to discount the Health Secretary's submissions. 2. However, Mr Rahman deposed that he was aware of the contents of the Code of Conduct and his obligations under it. In his submissions in reply, he did not take issue with the Health Secretary's submissions reproduced above. In particular, he did not dispute that the provisions reproduced by the Health Secretary are in fact included in the Code of Conduct. 3. One of the objects of the Act is that disputes are resolved in a prompt and fair manner and with a minimum of legal technicality: s 3(g). The Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, acting according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 163(1). 4. In keeping with these principles, I accept that the Code of Conduct includes the provisions identified by the Health Secretary. I emphasise, however, that to the extent that I have found that Mr Rahman contravened the Code of Conduct, that has not of itself been determinative of the outcome in this matter. 5. There is a degree of overlap in respect of Allegations 1 to 4, in that Allegations 2, 3 and 4 assert that Mr Rahman engaged in the relevant conduct without being requested to do so. To that extent, they are instances of the breach alleged in Allegation 1. To put it another way, Allegation 1 does not seem to have much work to do outside of Allegations 2, 3 and 4. In this context, it is the totality of the conduct in which Mr Rahman engaged, and not the number of allegations levelled against him, which must be considered. 6. Mr Rahman's conduct was not "totally disproportionate to the situation" as the Health Secretary submitted. [43] His physical intervention was not excessive or aggressive, albeit that it had unfortunate consequences. It was not suggested that he acted out of violent or prurient motivations. He acted contrary to the policies that applied to the situation and with which he was familiar, but I consider that he did so in a misguided attempt to help. 7. At the same time, he acknowledged that his conduct placed the Patient at risk. This lends seriousness to his behaviour, particularly having regard to s 119 of the Health Services Act. 8. I am satisfied that Mr Rahman's conduct in respect of Allegations 1 to 4 was in breach of the Mental Health Services Policy, the Seclusion and Restraint Procedure, the VPM Manual and the Code of Conduct. 9. In relation to Allegations 5 and 6, Mr Rahman submitted: [44] "159. …As for the allegation that Mr Rahman breached section 4.1 of the Code, it is accepted that if allegations 5 and 6 are substantiated, Mr Rahman was in breach of section 4.1, in particular section 4.1.2 which provides that staff must treat all other members if staff in a way that promotes harmonious and productive working relationships." 1. Mr Rahman further submitted that his exchange with Mr Kay-Smith needs to be considered in the context of having occurred "very quickly immediately after an adrenaline-charged and stressful situation involving the patient". [45] 2. Even allowing for these considerations, Mr Rahman was demonstrably at fault in the exchange. He acted in a hostile and aggressive manner, which caused not only Mr Kay-Smith but Ms Seung and Mr Yoo to become fearful. Noting in particular his submissions at [111] above, Mr Rahman's conduct was in breach of the Code of Conduct. 3. I find that Mr Rahman's conduct in restraining the Patient (Allegations 1 to 4) and his interaction with Mr Kay-Smith (Allegations 5 and 6) amounted to misconduct. Viewed in totality, his conduct warranted the termination of his employment. Termination from employment with SWSLHD 1. As outlined above, Mr Rahman's dismissal from the SWSLHD was largely the consequence of the application of the Managing Misconduct Policy. The logic of that policy is apparent given that the SLHD and the SWSLHD are not separate employers. Mr Rahman was employed by the Crown in the NSW Health Service, whether working at Concord Hospital or Fairfield Hospital. His conduct at one cannot be artificially quarantined so as not to affect his service at the other. 2. Mr Rahman submitted: [46] "168. The perfunctory termination of Mr Rahman's employment with the SWSLHD was wholly based upon the allegations of misconduct raised by the SLHD. By operation of internal policy, Mr Rahman's employment with the SWSLHD was, as a matter of course, terminated. It therefore follows that if the Commission is persuaded that the termination of Mr Rahman's employment by the SLHD was harsh, unreasonable or unjust, there must be a finding that he was unfairly dismissed from his employment with the SWSLHD." 1. I accept these propositions. To my mind, though, there is a necessary corollary: a finding that Mr Rahman engaged in misconduct warranting the termination of his employment with the SLHD would support the termination of his employment with the SWSLHD. I find that is the case in these proceedings. 2. I do not accept that the termination of Mr Rahman's employment with the SWSLHD was necessarily "perfunctory", albeit that cl 9.3 of the Managing Misconduct Policy throws up a significant hurdle for an employee to overcome. Mr Rahman was given the opportunity, in accordance with the Managing Misconduct Policy, to make representations as to why his employment with SWSLHD should not be terminated. Through his lawyers, he took that opportunity and provided a reasonably detailed submission. The evidence of Mr Pineda demonstrates that this submission was given consideration before the decision was made to terminate Mr Rahman's employment. Other allegations 1. During the course of the hearing it was revealed that Mr Rahman had been earning income from Protech Personnel since 24 June 2020 and from Momentum Consulting since 5 August 2020. At that time he remained employed with the SWSLHD, although he had been stood down – but significantly, on pay – since 11 June 2020. 2. Under cross-examination, Mr Rahman deposed as follows: [47] "Q. At this stage you're still employed by South West Sydney Local Health District? A. Yes, sir. Q. You understand that there's a secondary employment policy? A. Yes, sir. Q. You understand that there's a secondary employment policy? A. Yes, sir. Q. You never sought permission to work in those two jobs, did you? A. I had permission. Q. Who gave you permission? A. HR. Q. When did HR give you permission? A. There was a lot. Probably when I started I applied for the secondary employment. They give me permission. Q. You made an application for secondary employment? A. When I started the job. That's why I was able to continue at Concord. Q. Can I show you a document? A. Yes, sir. Thank you, sir. Yes, sir? Q. Do you see the document I've provided you is an application for secondary employment made by you in February 2019? A. Yes, sir. Q. Are you saying you prepared another document in relation to your work at Momentum and Protech? A. No, sir. Q. I want to suggest to you, sir, that you never sought secondary employment permission in relation to Protech and Momentum? A. No, sir. Q. You didn't? A. No, sir. Q. Sir, you knew you had to seek permission? A. Yes, sir. Q. Didn't do it? A. No, sir." 1. The Health Secretary submitted that Mr Rahman's conduct in working in secondary employment without permission was in breach of his obligations under SWSLHD's policies, the Code of Conduct and Mr Rahman's contract of employment. It was said that this was further misconduct warranting the termination of his employment. 2. It is well-established that facts which existed at the time of a person's dismissal, but which only came to light subsequently, may be used to justify the dismissal: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456, cited with approval in Byrne v Australia Airlines Ltd (1995) 185 CLR 410 at 430 (Brennan CJ, Dawson and Toohey JJ) and 467 (McHugh and Gummow JJ); Shepherd v Felt & Textiles Australia Ltd (1931) 45 CLR 359 at 373 (Starke J) and 377 (Dixon J). 3. Mr Rahman admitted that in taking up secondary employment without permission he acted in breach of his obligations to SWSLHD. However, he did so in circumstances where, on his own evidence, he was pessimistic as to his prospects of retaining employment with the SWSLHD having been stood down on 11 June 2020. In fairness, in light of all of the evidence and in particular the terms of cl 9.3 of the Managing Misconduct Policy, there was reason for Mr Rahman's pessimism. With a family to support and legal fees to pay, his conduct in securing alternative employment is understandable. This is not to condone Mr Rahman's breach, so much as to place it in a more even-minded context. 4. It follows that while I have had regard to this consideration, it has not weighed heavily on my decision. Conclusions 1. The Health Secretary had grounds to terminate Mr Rahman's employment. Mr Rahman was given, and took, the opportunity to respond to the allegations that were levelled against him by the SLHD. He was also afforded the opportunity to put forward a case as to why his employment with, first, the SLHD and, subsequently, the SWSLHD should not be terminated. I am satisfied that from the commencement of the Investigation to the termination of his employment with both the SLHD and the SWSLHD, Mr Rahman was afforded procedural fairness. For these reasons, his dismissal was neither unjust nor unreasonable. 2. Mr Rahman submitted that his termination was otherwise harsh. This was put on two grounds: firstly, that dismissal from his employment with both the SLHD and the SLHD was disproportionate to the alleged misconduct; and, secondly, due to the consequences to Mr Rahman of having been dismissed. 3. The approach to the assessment of whether or not a dismissal is harsh is set out in Department of Health v Perihan Kaplan [2010] NSWIRComm 65: "29. We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of 'harshness' it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 'In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.'" 1. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted) 1. Given my findings at [114] and [117] above, I do not accept that Mr Rahman's dismissal from either the SLHD or the SWSLHD was disproportionate to his misconduct. 2. Mr Rahman is 55 years old. He lives with his wife and two teenage sons, for whom he provides. He financially supports his mother who lives in Bangladesh and who is unable to work due to ill health. 3. Mr Rahman submitted: [48] "176. …[T]he Commission should take into account that Mr Rahman's present employment is far less secure than the employment he had with each respondent. He is presently employed on a casual basis. Given the lack of job security that comes with casual employment, coupled with Mr Rahman's age (55), it is submitted that Mr Rahman faces the very real prospect of suffering periods of unemployment in the future. Compounding these matters is the competitive disadvantage Mr Rahman suffers on the open labour market from having remained with the same employers for so long. ..." 1. These submissions need to be considered in light of three matters. First, Mr Rahman was employed at the SLHD in a casual role. It is not apparent that this employment was necessarily "far more secure" than his current employment. Second, since June 2020 Mr Rahman has been successful in obtaining concurrent and ongoing employment with several employers. This does not suggest that he suffers from a "competitive disadvantage". Third, through this employment Mr Rahman has been able to mitigate his financial losses arising from the termination of his employment with the Health Service. Indeed, it is not clear from the evidence that he has suffered any financial loss at all. 2. I find that the dismissals were not harsh. Order 1. Having found that the termination of Mr Rahman's employment was not harsh, unreasonable or unjust, the only appropriate order is that the applications be dismissed. I so order. Damian Sloan Commissioner ********** Endnotes 1. Statement of Gus Bernardi, 11 March 2021, Annexure GB5 at p 34 2. ibid., pp 33 and 39 3. Affidavit of Mustafa Rahman, 13 November 2020 at par 25 4. Statement of Min Sung (Marcus) Yoo, 11 March 2021, Annexure MY 4 at p 38 5. Tcpt, 13 May 2021, p 149(33) 6. Statement of Anna Gorska-Ivanov, 11 March 2021, Annexure AGI1 at p 11 7. Exhibit A8 at p 43 8. Tcpt, 13 May 2021, p 149(17-21) 9. ibid., pp 159(46)-160(1) 10. Statement of Gus Bernardi, 11 March 2021, Annexure GB2 at p 26 11. Tcpt, 13 May 2021, p 159(40) 12. Affidavit of Mustafa Rahman, 11 February 2021, Annexure J; Statement of Gina Finocchiaro, 12 March 2021, Annexure GF2 13. Affidavit of Mustafa Rahman, 11 February 2021, Annexure K; Statement of Gina Finocchiaro, 12 March 2021, Annexure GF3 14. Affidavit of Mustafa Rahman, 11 February 2021, Annexure L; Statement of Gina Finocchiaro, 12 March 2021, Annexure GF4 15. Statement of Joseph Pineda, 11 December 2020, Attachment G at p 18 16. Affidavit of Mustafa Rahman, 11 February 2021, Annexure M; Statement of Joseph Pineda, 11 December 2020, Attachment H 17. Affidavit of Mustafa Rahman, 11 February 2021, Annexure O; Statement of Joseph Pineda, 11 December 2020, Attachment M 18. Affidavit of Mustafa Rahman, 13 November 2020, par 65 19. ibid., par 19 20. Applicant's Submissions, 22 June 2021 21. Tcpt, 13 May 2021, p 143(19-36) 22. Tcpt, 12 May 2021, p 31(4-41) 23. ibid., pp 42(40)-43(5) 24. ibid., p 31(4) 25. ibid., p 74(33-34) 26. Statement of Taylor Kay-Smith, 12 March 2021, Annexure TKS1 at p 15 27. ibid. 28. Tcpt, 13 May 2021, p 133(8-9) 29. Statement of Gus Bernardi, 11 March 2021, Annexure GB1 at p 21 30. ibid., Annexure GB2 at p 26 31. Statement of Taylor Kay-Smith, 12 March 2021, Annexure TKS1 at p 17 32. Tcpt, 14 May 2021, p 211(7-19) 33. Statement of Gus Bernardi, 11 March 2021 34. ibid., Annexure GB1 at p 22 35. Affidavit of Mustafizur Rahman, 13 November 2020 36. Statement of Taylor Kay-Smith, 12 March 2021, Annexure TKS1 at p 23 37. Tcpt, 13 May 2021, p 154(8-10) 38. ibid., p 154(38-39) 39. ibid., p 155(42-43) 40. Statement of Taylor Kay-Smith, 12 March 2021, Annexure TKS1 at p 23 41. Statement of Hye Jung (Hazel) Seung, 10 March 2021 at par 13 42. Outline of Respondent's Submissions, 22 July 2021 43. ibid., par 159 44. Applicant's Submissions, 22 June 2021 45. ibid., par 165 46. Applicant's Submissions, 22 June 2021 47. Tcpt, 13 May 2021, pp 97(38)-98(33) 48. Applicant's Submissions, 22 June 2021 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2021