Industrial Relations Commission of New South Wales CITATION: David Kotevski v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1066 APPLICANT David Kotevski PARTIES: RESPONDENT South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): 805 of 2010 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant employed as security officer at St George Hospital - incident on night shift of 2 to 3 November 2009 - applicant observed by another security officer to be placing his issued baton on top of high cabinet and not otherwise observable - baton reported missing - search - applicant advised he had no knowledge of its whereabouts - baton located by night shift security officer who said he saw applicant place baton there - applicant denied allegation - investigation by outside body - applicant lodged complaint about another issue - investigation into that complaint not substantiated - investigation into baton issue results in applicant's dismissal - reinstatement application - Hearing - HELD: Applicant issued with a baton - Applicant placed baton on top of filing cabinet - Weapons Prohibition Act 1998 - Policy Directive PD110 - Applicant not unfairly dismissed - Commission declines to intervene in decision to dismiss applicant - Applicant's complaint about another issue has merit. LEGISLATION CITED: Industrial Relations Act 1996 Weapons Prohibition Act 1998 HEARING DATES: 15/11/10; 16/11/10; and 17/11/10 DATE OF JUDGMENT: 14 December 2010 APPLICANT Mr D Lipman Union Official Health Services Union - East LEGAL REPRESENTATIVES: RESPONDENT Ms G Gowland Solicitor Bartier Perry DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 14 December, 2010 Matter No IRC 805 of 2010 David Kotevski and South Eastern Sydney and Illawarra Area Health Service Application by David Kotevski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 1066 1 This is an application by David Kotevski ("the applicant") for unfair dismissal against South Eastern Sydney and Illawarra Area Health Service ("the respondent"), pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was filed on 12 August, 2010 in the New South Wales Industrial Registry. The Employers Reply was filed on 25 August, 2010. 3 The matter was set down for conciliation but was unsuccessful and the matter was programmed for a Hearing. 4 The Hearing took place on 15, 16 and 17 November, 2010. 5 At the Hearing, the applicant was represented by Mr David Lipman, union official, who called the following witnesses: David Kotevski - the applicant Toni Anevski - Security Officer Mladen Mofardin - Security Officer Jorgo Dimovski - Senior Security Officer The last two named witnesses were not required for cross-examination. 6 The respondent was represented by Ms Gina Gowland, solicitor, who called the following witnesses: John Hugon - former Acting Security Manager Ray Andraos - Security Manager Petro Calligas - Security Officer Youssef Masri - Security Officer Collette Ide - Acting Deputy Human Resources Manager BACKGROUND 7 The applicant was employed as a Security Officer at St George Hospital, from October 2007 with his dismissal effected by a letter dated 23 July 2010. 8 The St George Hospital has an on-site security service department which operates 24 hours every day. There are several security personnel. 9 The applicant was rostered to work the night shift of 2 November (6.00pm) to 3 November (6.00am), 2009. Also on that shift were two other security personnel: Mr Bashir Algadi (Senior Security Officer) and Mr Youssef Masri (at the time a Contractor Security Officer). Mr Masri subsequently became an employee of the respondent around the time of the incident (2 to 3 November 2009) that led to the applicant's dismissal. 10 Although not mandatory, the security personnel are issued with a baton and handcuffs at the start of their shift. There are three batons and three handcuffs held under lock and key. 11 Mr Algadi was not issued with a baton on 2 November around 6.00pm, as he carries his own. Mr Basri was not issued with a baton or handcuffs because he was a Contractor Security Officer. Petro Calligas, Security Officer, claimed he gave a baton to the applicant when he (Calligas) was finishing the previous shift which finished at 6.00pm. The applicant denied he was given a baton by Mr Calligas and denied being issued a baton at all for the 2 to 3 November shift. 12 During the 2 to 3 November shift, and sometime around 11.00pm, Youssef Masri said he exited the security building and as he did so, he alleged he saw the applicant (inside the building) reach up above head height and place a baton on top of a high cabinet. 13 After the finish of the 2 to 3 November night shift, and at the start of the next shift, it was noticed that one of the three batons was missing. A search did not locate it. The applicant was telephoned (as part of the search) and he advised he had no knowledge of its whereabouts. 14 Youssef Masri arrived for the night shift of 3 to 4 November and was asked about the missing baton. He took hold of a chair and reached on top of the high cabinet and found the baton. He advised what he said he had observed the night before about the baton and the applicant. 15 An external investigator was appointed by the respondent to interview the relevant personnel and report on the incident. Arising out of the investigation, the applicant was stood down on 15 January 2010. 16 In late January, the applicant lodged a complaint with the respondent that a certain John Hugon came by information concerning the applicant and the incident and that this information had been passed on to Hugon by the management at St George Hospital. Mr Hugon was formerly employed in the security department. An investigation into this complaint eventually found his complaint not substantiated. 17 Meetings with the applicant (as to his continued employment) were held by the respondent. The applicant denied he had used a baton on that night shift. 18 The applicant was dismissed by letter of 23 July 2010. He was given one week in lieu of notice. FINAL SUBMISSIONS For the Applicant 19 Mr Lipman, union official for the applicant put the following in final submissions: (a) The applicant denies he placed the baton on top of the cabinet during the 2 to 3 November shift 2009. (b) The Appointments Issue Register records that the last known use/issue of the baton was for the shift period 31 October to 1 November. (c) Security Officer, Petro Calligas said that he gave the baton to the applicant, at the start of the 2 November shift. The applicant denies being given the baton by Mr Calligas. The Appointments Issue Register does not show that the applicant had possession of the baton. (d) The Security Officer, Youssef Masri, who said he saw the applicant place the baton on top of the filing cabinet, gave conflicting accounts as to what he saw. He said at the Hearing that he saw the applicant place the baton on top of the filing cabinet. However, Mr Howatson's statement to the external investigation shows that Mr Masri did not, in November 2009, say he saw the applicant place the baton there but that he "put two and two together" and came up with the response that he had seen the applicant put the baton there. (Ex 14, pg 119 at 122 and pg 216 at 265) The Union submitted that this conflict in the evidence as to the certainty of what he claimed to have observed, meant that his evidence could not be relied upon. (e) The applicant's claim that he had been telephoned by Mr Hugon on 15 January 2010 (denied by Mr Hugon) was borne out by summonsed telephone records from Telstra Corporation Ltd. This gave credit to the applicant's denial that he had been given the baton and that he had placed the baton on top of the filing cabinet. (f) The applicant sought reinstatement or, in the alternative, re-deployment. For the Respondent 20 Ms Gowland, solicitor for the respondent, put the following in final submissions: (a) The respondent relies upon the evidence of Petro Calligas that he handed the baton to the applicant, which was denied by the applicant. (b) The respondent relies upon the evidence of Youssef Masri that around eleven to eleven-thirty at night, he saw the applicant place a baton on top of the filing cabinet. (c) The Shift Log Report (Ex 12) confirmed that Mr Masri and the applicant were around or in the security building when Mr Masri claims to have seen the applicant place a baton on top of the filing cabinet. (d) Mr Masri was a credible witness. (e) The applicant gave evidence that Mr Masri could not have seen inside to the security offices from outside the security building, because the office lights were mostly switched off and there was a window blind for the window through which Mr Masri said he observed the applicant. The evidence of a few witnesses was against the applicant's claim on these two issues. (f) The applicant's conduct represented a deliberate concealment of a prohibited weapon and this was a serious issue for the respondent, as it represented a breach of the Weapons Prohibition Act 1998. (g) The applicant had been dishonest to the respondent in stating to its personnel and the external investigator that he had no knowledge of the baton's whereabouts. (h) The respondent no longer had any trust in the applicant. (i) The applicant had made a complaint that information pertaining to his circumstances had been leaked by certain managerial person(s) to Mr John Hugon. Even if the Telstra Corporation Ltd phone record supported the applicant's complaint, this does not make his denial of concealing the baton a truthful denial. (j) The dismissal of the applicant was not harsh and reinstatement or re-deployment was opposed. CONSIDERATION 21 The applicant was dismissed with one week notice in lieu. He filed an unfair dismissal application and seeks the primary remedy of reinstatement. In the alternate, he seeks re-deployment. Reasons for Dismissal 22 There was an externally conducted investigation into the missing baton incident of 2 to 3 November 2009. Arising out of that investigation, the respondent stood the applicant down in January 2010. 23 During the course of that stand down, the applicant was provided with a show cause letter of 21 May 2010 (Ex 16) that set out the two allegations that became the two reasons for the applicant's dismissal. 24 Allegation One concerned the applicant's failure to sign the baton and handcuffs "out" or "in", within the Appointments Issue Register as required for his shift of 6.00pm on 2 November to 6.00 am on 3 November 2009. The allegation further advised that a witness (not named but it is Petro Calligas) had given the baton and handcuffs to the applicant at the start of his shift. (The applicant's case is that he was not provided with these items at all.) The failure to sign "out" or "in" was said to be a breach of the Area Health Service's Security Policy PD 110. 25 Allegation Two is that the applicant knowingly put a prohibited weapon (baton) in a place that was not secure. This was said to be a breach of the Area Health Services Security Policy PD 110 and the Weapons Prohibition Act 1998. Allegation One 26 The first allegation and reason for dismissal was the applicant's failure to sign the baton and handcuffs "out" and "in" within the Appointments Issue Register. The respondent said this was a breach of the Area Health Service's Security Policy PD110. 27 The Security Policy PD110 at clause 41.2 provides that "batons are to be signed for at the commencement of each shift in the Appointments Issue Register and returned at the end of each shift". (Ex 1, TAB 41) On my reading of this extract, the policy expressly provides that batons are to be signed for at the commencement of the shift. It does not expressly provide that batons be signed back "in". 28 In any event, Ms Gowland in final submissions, conceded that this breach of policy on its own, was not an offence warranting dismissal. (Tr 17/11/10 - p18, line 10) Given that concession, the Commission now turns to the substantive allegation/reason for dismissal. Allegation Two 29 The second allegation and reason for dismissal was the applicant's conduct in knowingly putting a prohibited weapon (a baton) in a place that was not secure (on top of a tall cabinet in the security personnel building). The respondent said this was a breach of the Area Health Service's Security Policy PD110 and the Weapons Prohibition Act 1998. 30 The respondent relied upon the evidence of Mr Masri (the then Contractor Security Officer) who claimed to have seen the applicant place the baton on top of the tall cabinet. The applicant denied this claim. He also denied being issued with a baton for the shift in question and therefore he had no baton to place in an unsecured spot. 31 The first issue to address is whether the applicant had been issued with a baton for the shift in question: 2 November (6.00pm) to 3 November (6.00am). 32 Mr Petro Calligas deposed he had worked the shift prior to the shift in question. That is, he was finishing his shift at 6.00pm on 2 November, when the applicant was to start his shift. He said he asked the applicant about getting a baton out for him. The applicant answered in the affirmative. Mr Calligas deposed he then placed the baton on the Appointments Issue Register and left to go home. (Ex 10, paras 6 to 10) 33 The applicant denied being provided with a baton. More than that, he denied seeing Petro Calligas at the changeover shift of 6.00pm. He also said that Petro Calligas was relieved by the incoming 6.00pm shift worker (Mr Youssef Masri) and thus Calligas was not relieved by the applicant. The changeover that the applicant said took place between Calligas and Masri, had taken place before the applicant had arrived at work and hence Calligas had left work for the day before the applicant had come to work. (Ex 2, paras 30 to 34) 34 The foregoing claim/defence of the applicant is in direct conflict with that of Petro Calligas. 35 Youssef Masri gave evidence about his claim that he saw the applicant place the baton on top of the cabinet and on this issue as to whether the applicant had been issued with a baton at the start of the 6.00pm shift. 36 Under evidence-in-chief, Mr Masri denied he had relieved Petro Calligas during the shift swap over. He had relieved a different security officer (Arthur Vay). Mr Masri also denied the other claim of the applicant that Petro Calligas had left the security office for home before the applicant arrived for his shift. Thus, Mr Masri gave evidence that he had arrived early for his 6.00pm shift - he had relieved Arthur Vay - he went outside for a smoke - in doing so, he left Calligas and another security officer (Howatson) inside - whilst walking down the ramp (located outside the security building), he saw the applicant coming up to the security building. (Tr 16/11/10 - p18, line 34 to p19 line 50) Mr Masri was not cross-examined on the foregoing evidence. 37 The other relevant evidence that supports that of Mr Calligas that he handed over the baton to the applicant, is the swap-over shift relief system. Mr Calligas gave evidence that each Security Officer on an outgoing shift relieves an incoming Security Officer. Further, a Senior Security Officer relieves a Senior Security Officer. And no Security Officer can go home until relieved. Mr Calligas identified David Howatson as the Senior Security Officer in charge of the then outgoing shift. He stated that he and Arthur Vay were the other two Security Officers working under Howatson. Further, he confirmed that the incoming Youssef Masri relieved the outgoing Arthur Vay. (Tr 16/11/10 - pg 6, line 43 to pg 8, line 2) 38 The foregoing swap over shift practice system means that Calligas was relieved by the applicant, who could not relieve the Senior Security Officer Howatson. This swap over system is evidence that Calligas had not left for home as claimed by the applicant. 39 The state of the evidence on this issue, is that Calligas says that he handed a baton to the applicant, who denies that but more so says that Calligas was not in the office when the applicant came to work. It is on this latter point, where the evidence of Masri supports that of Calligas. That is, Masri says that Calligas was in the office and had therefore not left the office when the applicant arrived. 40 In considering all of the evidence about the foregoing issue, the Commission prefers the evidence of Calligas and Masri to that of the applicant and accordingly, the Commission holds that Mr Calligas issued a baton to the applicant for the start of the 2 November, 2009 shift. 41 The other issue for consideration is Mr Masri's claim that he saw the applicant place a baton on top of the cabinet in the security office. The applicant denied doing so and put forward certain defences against Mr Masri's claim. 42 Mr Masri's evidence is that he worked the 6.00pm to 6.00am shift, along with the applicant and Bashir Algadi (who did not give evidence and who was the Team/Shift Leader for that shift). He and others, were interviewed by an external investigator about the baton issue. His transcript evidence of that taped interview, states that he had walked outside the security building for a smoke. He looked back into the security building and saw (through an open window), the applicant reach over the top of a cabinet and put a baton there. The time was "Eleven, around that time. Eleven thirty". (Ex 13, Annex YM-3, pg 13 to 16) 43 Mr Masri, under cross-examination, gave the time frame as being different than he had advised the external investigator. He said he made the observation "about 10.30 or 11.00, so give and take, but close to 11.00". (Tr 16/11/10 - pg 24, lines 11 to 26) 44 The Union challenged the evidence of Mr Masri. 45 One ground of challenge was whether Mr Masri was present in or around the building (around ten thirty - eleven thirty) or out on foot patrol or attending to a call from hospital staff for assistance for the time frame in question. 46 The Union referred to the Shift Log Report from 2 November (Ex 12) to put to Mr Masri that he was out on patrol or attending a hospital call for the relevant time frame of ten-thirty - eleven - eleven thirty. The last four entries for the night of 2 November for jobs performed are for the times of 22:00 (10.00pm), 22:50 (10.50pm), 23:15 (11.15pm) and 23:45 (11.45pm). 47 Mr Masri explained the meaning of the entries (job performed and the relevant times against the job performed) contained in the Shift Log Report. This explanation showed that there was a period of time (in respect of these four job entries) during which he would not be on patrol or on a call-out and this period of time overlapped with at least a part of the 10.30 to 11.30pm time frame in which he said he saw the applicant place a baton on top of the filing cabinet. 48 Another defence to Mr Masri's observation went to the open window through which he claimed to have seen the incident in question. The applicant deposed that the window in question was not open because it was night time and the window has blinds which are closed at night. (Ex 2, para 43) The real issue here goes to whether there are blinds for this particular window and, if so, were the blinds closed. If there are no blinds for this window, then whether the window was open or closed was not an issue given a related defence by the Union as to whether the inside lights were on or off. 49 Apart from the applicant giving evidence, the Union called three other witnesses. Two of these witnesses were not required for cross-examination (Mofardin and Dimovski) and hence were not able to be asked about the blinds issue. Mr Anevski (called by the Union) gave evidence in the proceedings. Under cross-examination he stated that he could not honestly remember if the window in question had a blind on it. (Tr 15/11/10 - pg 50 line 48 to 49) 50 The witnesses for the respondent gave evidence that the window in question did not have a blind: Andraos (Tr 15/11/10 - pg 55, line 20 to 44); Calligas (Tr 16/11/10 - pg8, line 23 to 33) and Masri (Tr 16/11/10 - pg 18, line 21 to 22) 51 Given that three witnesses (for the respondent) state that there is no blind for the window in question and Mr Anevski (for the applicant) could not give evidence on the issue when asked about it, then the weight of the evidence leads the Commission to conclude that there is no blind for the window in question and therefore Mr Masri had no hindrance in making an observation through the window. 52 A related defence by the applicant is that there are no lights turned on in the security building or parts thereof. 53 There is an initial problem with this defence by the Union in that it is saying that Mr Masri could not make a clear observation about the person putting the baton on top of the filing cabinet because the light was out (not turned on) for that particular office of the security building. This carries the suggestion that Mr Masri saw someone but has identified the wrong person. This other person was the Team Leader for that night shift (Algadi) but the applicant has not run the defence that Mr Masri saw someone but made the wrong identification between the applicant and Algadi. 54 Putting that aside, Mr Masri said the lights were on. He is supported in that regard by Mr Andraos, Security Manager at the St George Hospital and the one responsible for the overall running of the security department. He gave evidence that the lights stay on 24/7, albeit that he was not there on the night in question. (Tr 15/11/10 - p55, line 46 to p56, line 5) Mr Calligas also gave evidence that the lights are always kept on because it is a 24 hour running department. (Tr 16/11/10 - pg 8, line 42 to 47) The Commission prefers the weight of the evidence of Masri, Calligas and Andraos to that of the applicant, on this issue and finds that the lights were turned on and hence aided Mr Masri in his observation. Summary 55 The Commission has considered the evidence surrounding whether the applicant had been issued with a baton by Mr Calligas and whether the applicant had been observed by Masri placing a baton on top of the cabinet. The Commission has concluded that the respondent has made out its case that Mr Calligas made a baton available to the applicant who subsequently placed the baton on top of the cabinet in the office, which conduct was observed by Mr Masri. Accordingly, the respondent has made out its that the applicant knowingly placed the baton in a place that was not secure. Weapons Prohibition Act 1998 & Policy Directive PD110 56 The respondent dismissed the applicant because he deliberately concealed a prohibited weapon. It was deliberate, because the applicant placed the baton on top of a tall cabinet and hence out of sight. Mr Masri needed a chair to stand on in order to retrieve the baton from the top of the cabinet. (Ex 13, para 10) 57 There was no dispute that a baton is a prohibited weapon. 58 The relevant parts of the Weapons Prohibition Act 1998, relied upon by the respondent to reflect the seriousness of the applicant's conduct are: s32A(a) and s32B(1)(a). 59 Section 32A(a) states that a person who possesses a prohibited weapon must take all reasonable steps to ensure its safe keeping. 60 Section 32B(1)(a) states that a holder of a permit in respect of a prohibited weapon that is prescribed for the purposes of this section must comply with the following requirements: (a) When any such weapon is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable. 61 The "holder of the permit" is the respondent. In particular, Mr Andraos deposed that the permit holder is a Michael Spence, Master Security Licence Holder. (Ex 8, para 16) 62 Mr Andraos, the Security Manager, gave evidence on the significance of the baton no longer being in the possession of the applicant and not being stored in a locked receptacle. He advised that if batons are left unsecured they could fall into the wrong hands and could be used against security officers or others. If a baton was discovered missing and unable to be located, he would be required to report it to the police. Each baton has a number engraved on it. (Ex 8, paras 15 to 24) 63 Given the legislative prescription about prohibited weapons and the evidence of Mr Andraos as to the possible serious consequence of a baton (prohibited weapon) falling into the wrong hands, then the applicant's conduct in placing the baton in an out of place way (hidden from view), has to be seen as a serious issue for the respondent. Section 41.6 of Policy Directive PD110 states that "improper or illegal use of a baton by an individual may result in a disciplinary or legal action being taken against them". (Ex 14, Annex CI-5. Other Issues 64 The applicant made a claim that there had been a breach of confidentiality by management. This claim is contained in the applicant's letter of 24 January, 2010. (Ex 14 - Annex CI-4A) This letter of complaint was that management had passed on information, regarding his investigation by the respondent, to a certain John Hugon. His letter said that Mr Andraos and other Security Department Staff had been having meetings with John Hugon. The applicant said that John Hugon had telephoned him on a private line and it was the telephone call that had alerted him to a breach of confidentiality. 65 The applicant's complaint was referred to the external investigator. The respondent found this allegation not proven. 66 John Hugon was the predecessor (Security Manager) to Mr Andraos. 67 John Hugon provided a witness statement (Ex 5) and gave evidence in the proceedings. He said he had only ever spoken to Mr Andraos once in company with Mr Calligas and their conversation did not go to the applicant. The next time he spoke to Andraos was in response to the latter's request to speak to an external investigator. 68 John Hugon's witness statement had annexed a copy of his mobile and home phone records, including for the date of the alleged phone call of 15 January, 2010 to the applicant. These records did not show a phone call being made to the applicant. 69 However, the Union produced telephone records from Telstra Corporation Ltd as a result of a Summons For Production, issued pursuant to s165(3)(c) of the Act. This summonsed material showed that the applicant had received a phone call on 15 January, 2010 from John Hugon's mobile phone. 70 Mr Hugon was cross-examined on this summonsed material and he continued to deny he had telephoned the applicant. 71 Mr Andraos was cross-examined and confirmed that he had met John Hugon once only in a coffee shop near St George Hospital . He was introduced by Mr Calligas to John Hugon. The conversation was brief. Mr Andraos was not challenged by the Union on his affidavit evidence that he had not spoken about the applicant to John Hugon during this coffee introduction by Mr Calligas. 72 Mr Calligas who had introduced John Hugon to Andraos, was not cross-examined on this issue at all by the Union. 73 In summary of this complaint by the applicant, the Commission finds that the applicant has established through the summonsed telephone records, a prima facie case, that he was contacted by John Hugon - contrary to the finding of the respondent. The Commission also finds that the denial by Mr Andraos that he had provided any information about the applicant to John Hugon went unchallenged by the Union. Nor was it raised by the Union that Mr Calligas was a source for any breach of confidentiality and he was not questioned on this issue. CONCLUSION 74 The applicant has filed a section 84 application claiming that his dismissal was unfair. 75 Having considered all of the evidence and material placed before it, the Commission finds that the applicant has not established that he was unfairly dismissed. 76 Accordingly, the Commission declines to intervene in the respondent's decision to dismiss the applicant and this file is closed by this decision. A Macdonald Commissioner 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.