Industrial Relations Commission New South Wales Medium Neutral Citation: Nicolaides v Director-General, NSW Department of Health in respect of the NSW Health Service (Sydney West Area Health Service) [2011] NSWIRComm 1002 Hearing dates: 24 May, 10 - 11, 15 -16, 21 June, and 26 July, 2010. Decision date: 09 February 2011 Before: Tabbaa C Decision: The Commission awards a sum equivalent to seven weeks' pay calculated at the average rate of pay received over the last six months of the Applicant's employment. Catchwords: UNFAIR DISMISSAL - summary dismissal - onus for proving misconduct - citizen's arrest - use of excessive force by security officer - self-defence. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Kumar v Valuca P/L [2001] NSWIRC NSW Nurses' Association (o/b of Colin Prior) v South Eastern Sydney and the Illawarra Health Service [2007] NSWIRComm 164 Graham v Sth Eastern Sydney & Illawarra Area Health Service [2010] NSWIRComm 1023 Hosemans v NSW Police (No. 3) NSWIRComm 161 Nakhi Nasr v State of NSW[2007]NSWCA 101 (4 May 2007) Category: Principal judgment Parties: Phillip Nicolaides (Applicant) Director-General, NSW Department of Health in respect of the NSW Health Service (Sydney West Area Health Service) (Respondent) Representation: Counsel: Mr C Bolger, (Applicant) Solicitors: Malouf Solicitors (Applicant) Bartier Perry Solicitors (Respondent) File Number(s): IRC 146 of 2010 Judgment 1The Applicant, Phillip Nicolaides, filed a claim pursuant to section 84 of the Industrial Relations Act 1996 on 2 March 2010 stating that he had been employed from 19 May 2008 until his alleged dismissal on 17 February 2010 as the Security Manager for Blacktown and Mt Druitt Hospitals pursuant to the terms and conditions of the Health Managers (State) Award and the Public Sector Employment and Management Act 2002 (NSW). BACKGROUND 2Briefly, the Applicant, a 54 year old male, joined the NSW Police Force in 1975 and resigned in 1996. He worked in his own business with his wife until he obtained a Security License, Class 1AC, in 2001. He then proceeded to work as a Security Officer with various employers prior to commencing employment with the Respondent on 18 May 2008 as Security Manager. 3The Applicant was on an allocated day off (ADO) on 4 September 2009 as a prelude to a period of 10 days approved leave. On the same day, a plumber, Mr Ireland, was performing work at Blacktown Hospital. Ireland was an employee of Sydney Wide Pipe Cleaning, a firm contracted to perform services at Blacktown Hospital. Ireland was not wearing an ID. 4An incident occurred between the Applicant and Ireland outside the Applicant's place of residence (the Doctors Quarters) which was on the grounds of Blacktown Hospital. It was alleged that the Applicant used inappropriate action which resulted in excessive use of physical force against Ireland. There were no witnesses to the commencement of the incident but there were witnesses in relation to the restraint of Ireland on the ground. 5The Respondent considered that the Applicant's conduct in that incident was serious misconduct and that it breached its Code of Conduct and its Zero Tolerance Policy in relation to violence. The Applicant was suspended on full pay on 14 September 2009 while the Respondent conducted an investigation into the incident, including a disciplinary interview with the Applicant on 18 September 2009 and an opportunity for the Applicant to comment on both the investigation findings and the proposed penalty prior to a final decision being made. 6The disciplinary interview was conducted by Peter de Robillard (Facilities Manager Corporate Services) and Vivian Morales (Human Resources, Blacktown Hospital). 7Mr de Robillard prepared an Executive Brief that detailed the findings and recommendations following the Disciplinary Interview and forwarded it to the Applicant on or about 13 November 2009. The Report found that, " in considering all information and based on the balance of probabilities, the allegations made against Mr Nicolaides of using excessive physical force and assault against Ireland are substantiated ". The Report recommended that the Applicant's employment be terminated. 8The Applicant was provided with an opportunity to respond to the Executive Brief. In the response prepared by his lawyers, dated 14 December 2009, the Respondent was informed, inter alia, that: 8.1 while there had been an altercation between himself and the Contractor, the Applicant did not engage in inappropriate action and did not use excessive physical force against him; 8.2 the Applicant had already provided a detailed written account to Mr de Robillard of what occurred; 8.3 the Applicant had acted in his capacity as private citizen as the incident had occurred outside his place of residence and on his ADO,following which he was to commence a period of 10 days' approved leave; 8.4 as the Applicant was walking towards the Doctors quarters, he saw a man, whose identify he did not know, walk along the veranda of the Quarters and stop at the doors to various rooms and partially open the screen door to the Applicant's room. Ireland was not wearing any identification; 8.5 as he approached, the Applicant identified himself as the Security Manager and resident and asked what the man was doing. The man, later identified as Matthew Ireland, responded " ....fucking working ". The Applicant asked to see his ID and Ireland, in turn, asked to see the Applicant's ID. As the Applicant was not carrying his ID on his person, he produced his security license and showed it to Ireland. Ireland did not have a contractor's ID. The Applicant said he asked Ireland who he was working for. The Applicant said that Ireland's response was both abrupt and disrespectful. He told the Applicant to " fuck off I'm working ". 8.6 Ireland then assaulted the Applicant by pushing him. The force caused the Applicant to take a step backwards. The Applicant also stepped to the side to maintain a circle of safety and to allow Ireland to "escape" without further confrontation. Ireland did not take advantage of that. Instead, he kept swearing at the Applicant repeating the words, " fuck off I'm working ", kept walking towards the Applicant and pushed him once again in the chest. It was at that point that the Applicant engaged Ireland by pushing him in the chest in order to maintain a safe distance. 8.7 The Applicant observed Ireland raise a clenched right fist. When the fist was waist high, the Applicant, fearing for his personal safety, moved forward and took hold of Ireland by the upper body and told him that he was under arrest for assault. He put Ireland face down on the ground with minimal impact and placed Ireland's left arm behind his back and held it there in a restraint or left arm hold. 9Despite the Applicant's explanation, the investigation found that the Applicant, in restraining the Contractor, 9.1 Applied a level of physical force that was not justified in the circumstances; 9.2 Caused injury to the contractor by the application of that force; 9.3 Took actions which were hostile and reckless; 9.4 Committed serious misconduct; and 9.5 Breached sections 1.1 [Personal and Professional Behaviour], 1.2 [Good Faith], 6.3 [Use of Discretionary Power], 7.2 [Violence] and 8.1 [Occupational Health & Safety] of the NSW Health Code of Conduct. 10The Respondent determined that the Applicant's conduct was such as "to diminish the Area Health Service's confidence in the Applicant's professionalism, honesty and integrity to the extent that the future employment relationship [between the parties] was seriously compromised". 11The Applicant's employment was terminated by Bronwyn Culbert, Human Resources Manager, Central Cluster, on 10 February 2010 for serious misconduct and breach of the NSW Health Code of Conduct. 12Conciliation proceedings failed to resolve the claim and the matter was set down for hearing on 24 May, 10, 11, 15. 16 and 21 June and 26 July 2010. Final submissions were received on 17 September 2010. 13Mr C Bolger , Counsel for the Applicant, with Ms Karen Thompson, Solicitor, called evidence from: Phillip Nicolaides Applicant Andrew Doslea Managing Director, STAT Security Training & Tactics Pty Ltd Ms G Gowland , Solicitor, entered an appearance on behalf of the Respondent and called evidence from: Mathew Ireland Plumber, Sydneywide Pipecleaning Pty Ltd Tamara Carter Contractor Savonnary Khoeung Contractor Carolyn Kassing Hospital Assistant, Blacktown Hospital Johanna Helen Feeney Nursing Unit Manager, Blacktown Hospital Michael Beasley Registered Nurse, Blacktown Hospital Peter de Robillard Manager, Blacktown Hospital Leslie William Nagy Security Officer, Blacktown Hospital Sadruddin Versi Security Officer, Blacktown Hospital Tommy Baillie Leading Hand Carpenter, Blacktown Hospital 14The Applicant contended that the termination was harsh, unjust and/or unfair. Although he admitted that the altercation occurred with the contractor, he denied the allegations that he engaged in inappropriate action and used excessive physical force against the contractor. He also denied that he committed an act of serious misconduct or that he breached the Code of Conduct. The Applicant argued that: 14.1 he acted in the capacity of a private citizen; 14.2 he acted in self-defence. He alleged that Ireland was the aggressor and pushed him twice before he reacted by pushing the contractor; 14.3 he did not use excessive force in restraining the contractor. He argued that he used standard and appropriate techniques which involved just enough force as necessary to restrain the contractor and keep him under arrest until police or security staff attended; 14.4 he had responded appropriately to complaints from the Contractor as to his asthma condition and sore left shoulder; 14.5 when other staff arrived on the scene he had responded appropriately and requested assistance from security personnel and released the contractor from his restraint when the security personnel arrived. 15He sought reinstatement to his former position, or re-employment to a suitable alternative position, and compensation. 16The Respondent argued that the termination was neither harsh nor unjust nor unreasonable. It argued that the Applicant: 16.1 failed to make appropriate enquiries as to whether the contractor was on site for a legitimate purpose; 16.2 failed to take steps to de-escalate the situation prior to using force; 16.3 acted disproportionately in circumstances where neither his physical safety nor his liberty were at risk; and 16.4 forced Ireland to the ground and held him there in a manner that caused him pain and distress. 17The Respondent pointed out that despite the contention that he was acting in the capacity of private citizen, the Applicant had identified himself to the Contractor as the Security Manager of the Respondent prior to the incident occurring. The Applicant held a position of trust and his actions in regards to this incident caused the Respondent to lose confidence in him. The Respondent argued that the investigation was conducted in a procedurally fair manner. The Respondent also argued that it was not practicable to reinstate the Applicant to his former position. ONUS OF PROOF 18It was submitted on behalf of the Applicant that, in view of the fact that the Applicant was dismissed for serious misconduct, the Respondent bore the onus of establishing, to the reasonable satisfaction of the Commission, that the alleged misconduct occurred and that the Applicant was guilty of the misconduct. It was pointed out that the allegations against the Applicant were so serious and had such grave consequences that the standard of proof went beyond the civil standard of the balance of probabilities, albeit it did not actually reach the criminal standard of beyond reasonable doubt: Briginshaw v Briginshaw [1938] 60 CLR 36 at 361. The burden of proof on the Respondent in cases involving misconduct was further analysed by the Full Bench of the Commission in N ew South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and the Illawarra Area Health Service [2007] NSWIRComm 164 at [13]: Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. 19It was further submitted on behalf of the Applicant that, although in substance the dismissal was for serious misconduct and breach of policies, the nature/particulars of the conduct complained of differed as did the policies alleged by the Respondent to have been breached by the Applicant. It was pointed out that the differences were far from subtle. For example, the Respondent no longer asserted that the Applicant assaulted Ireland. Rather, it referred to " excessive force " being used by him. The termination letter found that the allegations against the Applicant had been substantiated and provided the following particulars of the conduct complained of: 19.1 he applied a level of physical force that was unjustified in the circumstances; 19.2 he caused injury to Ireland by the application of that force resulting in medical assistance being sought; 19.3 his actions had been hostile and reckless; and 19.4 his actions constituted serious misconduct. In addition, the termination letter merely referred to a breach of the Code of Conduct. 20On the other hand, the Respondent 's Outline of Submissions provided the following particulars in relation to the conduct complained of: 20.1 the applicant physically restrained Ireland to the ground prior to: making appropriate enquiries as to whether he was on site for a legitimate purpose; and taking steps to de-escalate the situation. 20.2 the Applicant's actions were disproportionate to the circumstances that existed in that neither his physical safety nor his liberty were at risk. 21The Outline went on to enumerate the policies that had allegedly been breached by the Applicant, namely: 21.1 The Sydney West Area Health Service Safe Work Procedures (Procedure 001); 21.2 The NSW Health Policy Guidelines or Security Risk Management in Health Facilities (Chapter 14); 21.3 The NSW Health Zero Tolerance response to Violence in the NSW Health Workplace Policy. 22The Respondent submitted that the principles regarding onus in cases of serious misconduct are well settled. The requisite standard does not change if the conduct alleged falls short of criminal conduct but nevertheless constitutes serious misconduct. It was pointed out that Kumar v Valuca Pty Ltd [2001] NSWIRC at [35] is illustrative of the operation of the onus. The Respondent argued that once the Respondent has made out its case in a "convincing way" ( New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and the Illawarra Health Service [2007] NSWIRComm 164), the onus shifts to the Applicant to show that the dismissal was harsh, unjust or unreasonable. 23The Respondent distinguished the present circumstances from Kumar in that there were a number of eyewitnesses to the restraint of Ireland on the ground, the hurt or distress he endured, and the knee of the Applicant on Ireland's back. It was also submitted that it was clear from the Applicant's version of events that the restraint was for the purpose of arresting Ireland and not for the purpose of evasive self-defence. Nevertheless, even if the purpose was for evasive self-defence, the action of the Applicant in continuing to hold Ireland down in the manner described by Ireland and the witnesses was disproportionate and therefore excessive. 24The Respondent denied that the reasons for dismissal had changed over time. It was argued that the key allegations have remained the same since the allegations were first notified to the Applicant - inappropriate action resulting in excessive force not justified in circumstances when steps should have been taken to de-escalate the situation, as neither his safety nor liberty were at risk. 25The Respondent also denied that the Applicant had not been advised of the extent of the breaches. In that regard, the Applicant was referred to the breaches set out in the Executive Brief. It was noted that although the NSW Health Security Risk Management Policy and Guidelines was the only document not attached to the Brief, the Applicant, nevertheless, was aware of it. The Respondent argued that the failure to attach that policy is not fatal to the requirement that it discharge the onus nor does it result in procedural unfairness. In that regard, the Respondent relied on Hosemans v NSW Police (No 3) NSWIRComm 161 in which his Honour, Boland J. stated (at [179]): The Statement of Reasons lacked structure and precision. Nevertheless, I am satisfied that the Statement captured the essential reasons underpinning the Commissioner's decision to remove Mr Hosemans and was sufficiently comprehensible that Mr Hosemans was able to understand what those reasons were and was able to, and did, mount a coherent and comprehensive challenge to them. THE EVIDENCE 26The Respondent submitted that the evidence of the witnesses was consistent in relation to the key elements on which the Respondent relied. (a) The Initial Contact 27The Applicant gave evidence that as he was walking towards the Doctors quarters where he resided, he saw a man, whose identify he did not know, walk along the veranda of the Quarters and stop at the doors to various rooms and partially open the screen door to the Applicant's room. Ireland was not wearing any identification. 28The Applicant said that as he approached, he identified himself as the Security Manager and resident and asked what the man was doing. He contended that the man, later identified as Matthew Ireland, responded " ....fucking working ". The Applicant said he asked to see his ID and Ireland, in turn, asked to see the Applicant's ID. As the Applicant was not carrying his ID on his person, he produced his security license and showed it to Ireland. Ireland did not have a contractor's ID. 29The Commission was advised that people working at Blacktown Hospital are required to wear identification but the evidence from several witnesses was that they do not always do so. The Applicant said he asked Ireland who he was working for. The Applicant said that Ireland's response was both abrupt and disrespectful. He told the Applicant to " fuck off I'm working ". 30Ireland alleged that the Applicant grabbed his right arm and pulled him down the set of stairs where he fell to the ground. He said he stood up and the Applicant tackled him back down to the ground. The Applicant denied the allegation relying on the events that occurred between him and Ireland prior to him forcing Ireland to the ground as causing him to be fearful of his own safety. He alleged that Ireland assaulted him by pushing him. The force of the push caused him to take a step backwards. He said he also stepped to the side to maintain a circle of safety and to allow Ireland to " escape " without further confrontation. However, Ireland did not take advantage of that opportunity. Instead, he kept swearing at the Applicant repeating the words, " fuck off I'm working ", kept walking towards the Applicant and pushed him a second time in the chest. The Applicant stated that it was at that point that he engaged Ireland by pushing him in the chest in order to maintain a safe distance. 31The Applicant said he observed Ireland raise a clenched right fist. The Applicant said he became fearful for his personal safety when the fist was waist high. It was common ground that the Applicant grabbed Ireland around the chest area and wrestled him to the ground. He said he put Ireland face down on the ground with minimal impact and placed Ireland's left arm behind his back and held it there in a restraint or left arm hold. The Applicant said he told Ireland that he was under arrest for assault. 32Up until that time, there were no witnesses to the incident. 33The Respondent submitted that if the Applicant had been genuinely concerned for his safety, there was ample means for him to escape. Firstly , by the Applicant's own admission, he confronted Ireland in an "open area" in plain daylight on a weekday. He did not come upon Ireland in a dark alley. He was a short distance away from a telephone and duress alarm at Bungarribee House. The Applicant's only stated reason for not retreating was that the ground was uneven but it strained credulity to assert that, rather than risk tripping on the ground, it was safer to tackle an adult male to the ground. Secondly , the applicant's subsequent failure to release Ireland once others had come to assist underscored the fact that his physical safety was not the motivator to use force. 34Mr Beatty's evidence, the Respondent argued, was to the effect that, based on the eye witness reports of what subsequently happened, it was obvious that the Applicant had " escalated a confrontational situation rather than de-escalated it as required " and that action therefore amounted to misconduct. (b) The Restraint 35It was contended that the Applicant used excessive physical force in his restraint of Ireland. The Applicant denied that he pinned Ireland's arm up behind his back, that he " pulled harder on [Ireland's] shoulder, causing [him] unbearable pain ". It was pointed out on behalf of the Applicant that, contrary to eye witness accounts, Ireland did not allege that the Applicant was forcing his arm up behind his back towards his head; nor that he was crying in pain or distress. He did contend that he attempted to stand up and was pushed back to the ground - an allegation denied by the Applicant. 36The Applicant relied on the judgment in Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 (4 May 2007) in relation to the issue of excessive force. In that Court of Appeal Judgment, their honours (Beazley JA, Hodgson JA and Campbell JA) held that a consideration of whether or not excessive force was used in any particular situation depended on an assessment of the situation that confronted the arresting officer at the time. 37It was emphasised that the Applicant was not deliberately trying to inflict pain or hurt on Ireland but was merely avoiding a third attempt by Ireland to assault him by restraining him. He said he did not intentionally injure, or try and cause injury to, or inflict pain on Ireland. He said he did not use excessive force. He maintained that he used standard and appropriate techniques to restrain Ireland and the amount of restraint he applied was reasonable and necessary in the circumstances given Ireland's actions and conduct. He said that he had reacted to the hostile manner of Ireland. His actions had been defensive and reactionary and were not aggressive or reckless. Such restraint, albeit a defensive action, necessarily involved the use of physical force. The duration of the restraint was intended to be until police or security staff attended. 38The Applicant said he was aware of his duty of care to Ireland and had reacted appropriately to Ireland's complaints during the restraint. Firstly , when Ireland complained about experiencing difficulty in breathing and suffering from asthma, he had loosened his hold on him and allowed him to roll onto his side. Secondly , when Ireland complained of pain in his left shoulder, he had instructed Ireland to bring his right arm around to his back and allow that arm to be used in an arm hold so that the left arm could be freed. The Applicant argued that further evidence of Ireland's inconsistency was the fact that he denied that the Applicant had switched the restraint from his left arm to his right arm. The Applicant contended that, despite the above, Ireland continued to be aggressive and unco-operative and continued to struggle in an attempt to break free. The Applicant pointed out that although psychiatric nurses were only experienced in relation to restraints used on patients, they agreed that the appropriateness of a restraint must be viewed in the circumstances that confronted the arresting officer at the time the restraint was used. The Applicant argued that if other people had to assist him to restrain Ireland, then it cannot be argued that the restraint he applied was inappropriate or excessive. 39There were a number of witnesses to the various stages of the restraint of Ireland. Carter and Khoeung (Contractors) were the first on the scene although they were never seen by the Applicant. Ms Kassing (Hospital Assistant) was next on the scene followed by Ms Feeney (Nursing Unit Manager at Bungarribee House Psychiatric facility), then Messrs Beasley and Quiah (psychiatric nurses) and finally Messrs Nagy and Versi (security officers). 40There were no witnesses to the initial confrontation between the Applicant and Ireland. The versions of the Applicant and Ireland were quite different and disparate. It was submitted on behalf of the Applicant that his version of events should be preferred over that of Ireland for the following reasons: 40.1 The Applicant's version had been consistent throughout the investigation process through to the hearing and his cross-examination did not provide any reasons to reject his evidence. There was no challenge to the brief report he provided in the SWAHS Riskmate system on the day. The system did not require the level of detail he provided in his affidavit evidence; 40.2 It was the Applicant who insisted that the police attend the incident - that was not the action of a person who thought, given his past experience as a Police Officer and Security Officer, that there was a chance that he himself would be held to have acted inappropriately. The Applicant claimed he had been assaulted by Ireland and was required, consistent with his professionalism and adherence to policy/procedures/requirements of the law, to hand over Ireland to an authorised officer having made a citizen's arrest; 40.3 The Applicant volunteered to provide a statement to the Respondent immediately after the event despite being offered the opportunity to provide the statement upon his return from leave. There was a dispute, however, as to when Ireland's statement was prepared and signed. Ireland insisted it was 4 September 2009 and had no explanation as to why it was dated 10 September 2009. He gave evidence that he had not attended Blacktown Hospital in relation to his statement after 4 September 2009; 40.4 Ireland gave evidence that the Applicant swore at him. The Applicant denied the allegation and the witnesses called in the proceedings attested to his professional approach to his role as the Security Manager and to the fact that they had not heard him swear or act in the unprofessional manner suggested by Ireland; 40.5 Ireland's evidence in relation to his use of foul language and swearing was inconsistent. Initially, he denied that he swore at the Applicant on various occasions. He later admitted that he swore on one occasion but insisted that it was not directly at the Applicant. Six of the Respondent's witnesses attested to the fact that they heard Ireland swearing but did not hear the Applicant swearing; 40.6 The Applicant had consistently denied Ireland's version of events - that the Applicant had grabbed him by his right arm, pulled him down the steps where he fell to the ground and tackled him back to the ground when he stood up. For his part, the Applicant admitted from the outset that he restrained Ireland on the ground using an arm hold. 41Ireland's credit was severely damaged by his account of the incident wherein he alleged that the Applicant, while standing at the base of the stairs, had grabbed him by the arms while he was on the veranda and dragged him down the stairs. It was pointed out that it was physically impossible for that to occur unless the Applicant had "Inspector Gadget's extendable arms". 42It was pointed out that Ireland changed his testimony during cross-examination suggesting that he may have been on the top step or the Applicant was on the first step. The Commission was reminded that when it was argued that it would still be impossible for the Applicant to grab and drag him given the distance and given his height, Ireland became defensive. It was contended that Ireland's attitude during cross-examination and the fact that he refused to supply the Respondent with a statement and had to be subpoenaed to attend the hearing were telling; 42.1 The Applicant had an unblemished disciplinary and employment record. The Respondent had no record of any aggressive conduct on behalf of the Applicant in relation to any person or any member of the public; 42.2 The Applicant was a private citizen about to embark on a period of annual leave. He was focused on leaving Blacktown Hospital and getting himself to the airport after fitting in a visit to the bank. He had no intention of involving himself in any altercation; 42.3 The Applicant was mainly concerned with his criticism of Baillie within earshot of others. He informed Mr de Robillard of the inappropriateness of his remarks and then apologised to Baillie in the presence of Mr de Robillard; 42.4 The evidence given by Ireland contained recent inventions. Firstly , none of the witnesses had seen a company logo on Ireland's clothing nor did he include it in the statement he gave about the incident. It was only mentioned by Ireland after he read clause 2.2 of the Contractors Safety Handbook. Secondly , Ireland did not include any mention of an ID in his truck in his statement. During cross- examination, he said that he had made mention to the Applicant that if he took him to the truck he could show the Applicant his ID; 42.5 The rule in Browne v Dunn (1893) 6 R 67 was not observed in that the Respondent did not cross-examine the Applicant in respect of the sequence of events, nor was Ireland's version put to him in whole, nor was it suggested to him that his version of events was not correct; 42.6 It was obvious that Ireland's recollection was not very clear. Firstly , he did not recall two male nurses attending and trying to calm him down nor did he include them in his statement regarding the incident. Secondly , he did not recall the Applicant calling out " code black " although that was not in dispute between the parties. Thirdly , Ireland had a different recollection to the Security Officers Nagy and Versi who recalled that he was not interviewed in relation to the incident; 42.7 It was debatable whether Ireland was concerned about the incident. He had to be summoned to give evidence. He said he gave an account of the incident to a Security Officer about 40 minutes after the police had gone and he had been seen to at the Emergency Department. The Security Officer typed up the statement which he read, signed and left with the Security Officer without keeping a copy for himself. The whole process had taken about 10 minutes. That evidence was not corroborated by Nagy, the Security Officer who said he took Ireland's statement in the Maintenance Department on 10 September in the presence of Baillie; 42.8 Ireland was not interviewed by anyone involved in the investigation of the incident. No evidence was available as to the report Ireland gave to his employer; 42.9 The evidence given by Ireland in relation to the loss of his driver's licence was evidence of his lack of credit. Under cross-examination, he said he left his employment because he lost his driver's licence as a result of demerit points. That evidence was contradicted by documents received from his previous employer in response to a summons; 42.10 The evidence did not establish that the Applicant assaulted Ireland or grabbed him and pulled him down the stairs and definitely did not meet the requisite standard or onus of proof required by Briginshaw. There was no reason to disbelieve the Applicant's version of what happened in the lead up to the arrest and restraint of Ireland; 42.11 Ireland was not wearing any identification. He was not wearing any clothing that would identify his employer or a name tag that would identify him as a Contractor visitor to the site. Both Carter and Khoeung were contractors. They gave evidence that they were wearing name tags provided to them to wear on site. In addition, Carter wore a shirt with her company's name/logo printed on it. 43The Respondent relied on the evidence given by Versi in relation to the correct procedure required to be followed in such circumstances: 10. If I am on duty and I see a person on the hospital grounds and I do not know who they are, I ask them who they are and why they are there. I would not expect the person to have an ID badge. If the person was wearing a high visibility shirt, work pants and work boots that would make me think he was a contractor. 11. If the person told me he was working at the hospital, I would call maintenance to check. 12. If the person appeared aggressive, I would follow the procedure in the Safe Work manual. Together with my partner, I would try to calm the person down and de-escalate the situation together. We would keep a safe distance from the person. 13. If we could not calm the person down and if I felt my safety was at risk I would activate a duress alarm. Duress alarms may be activated when there is a threat to a person's safety. There are various locations around Blacktown Hospital including one in Bungarribee House. Alternatively, I would contact the police. If I was off duty on the hospital grounds and saw someone suspicious, I would contact the security office. I would never approach a suspicious person on the hospital grounds while off duty. 44The Respondent pointed out that the Applicant gave evidence that, after confronting Ireland, he made no attempt to persuade him to calm down because he did not feel that he had the time. 45The Respondent argued that, even on the Applicant's version, he did not exhaust all reasonable methods to de-escalate the situation prior to using force. He had ample opportunity to remove himself and return to Bungarribee House to confirm Mr Ireland's status given that an onlooker would have suspected that Ireland was working there in view of the fact that he was wearing a fluorescent orange vest and walking along the doctors' quarters in broad daylight. 46Also on the Applicant's version, he had not made any attempt to persuade Ireland to calm down claiming that he did not feel that he had the time. 47The Applicant denied that he used inappropriate action towards Ireland in the lead up to, and the restraint of, Ireland on the ground. It was argued that he had engaged in "evasive self defence" initially. It was pointed out that he had taken steps to de-escalate the confrontation - initially by talking to Ireland in a calm, deliberate and friendly manner, then by stepping away and providing an escape route and finally by pushing Ireland away and maintaining a circle of safety. However, Ireland, rather than leaving the scene by one of the escape routes the Applicant opened up for him, had come towards the Applicant with a clenched fist ready to throw a punch at him. It was submitted that it was reasonable that the Applicant, fearing assault for the third time, and for his personal safety, placed Ireland under arrest, took him in a bear hug and restrained him on the ground. The Record of the Interview conducted with the Applicant revealed that it was Mr Robillard who had suggested to the Applicant that the action of pushing Ireland constituted assault. The Applicant had always maintained that his action was " evasive self-defence " and that it was Ireland's conduct that had escalated the situation. The fact that the Applicant had called a " Code Black " (meaning disaster or person under attack) was telling of the Applicant's state of mind at the time. 48Versi gave evidence that he would never approach a suspicious person if he was off duty but was still on the hospital grounds. He would contact the security office. However, if that person was wearing a high visibility shirt, work pants and work boots, he would presume that he was a contractor and would question them as to their identity and why they were there. He would not expect the person to have an ID badge. If he received a response that they were working at the hospital he would call maintenance to check. (i) The elbow reverse arm lock and knee hold down 49The unchallenged evidence of the only expert witness in the proceedings, Mr Andrew Dolsea, Managing Director of Security Training and Tactics Pty Ltd, was to the effect that, based on the Applicant's version of events, the Applicant had acted appropriately in handling the situation he was faced with on 4 September 2009. There was no challenge as to the appropriateness or otherwise of the "elbow reverse arm lock" used by the Applicant on Ireland. Mr Dolsea described it as " a simple and minimal restraint hold " which " prevented Ireland from hurting [the Applicant] . Pressure is applied and there is minimal risk of injury ". 50The Respondent reminded the Commission of the following: 50.1 Dolsea conceded that: (a) he has no specialised knowledge in the training of persons for the health industry; (b) he has no professional working knowledge of the policies or procedures in operation in the NSW Area Health Services. Therefore, Dolsea has no knowledge of what level of force is considered acceptable in relation to the Respondent's policies and procedures; 50.2 Dolsea gave expert evidence in relation to the reasonableness or otherwise of retreating from that location in daylight. That evidence was based on the statement of the Applicant that he did not "escape" the situation because he was unsure of his footing and ability to run and leave. It was pointed out that Dolsea was not shown, and was not asked to comment on, the photographs tendered in the proceedings. On that basis, Dolsea's evidence does not advance the Applicant's case further. 50.3 Dolsea also opined that the Applicant " attempted to defuse the situation by not adopting the language and manner used by the man ". It was pointed out that his opinion is in stark contrast with the evidence of Versi about what action he would have taken in such circumstances. 51The Applicant denied the sequence of events as alleged by Ireland. He contended that Ireland did not mention that his shoulder was hurting until after he tried to break free of the hold. He denied that Ireland was " screaming out " that his shoulder was " killing him ". It was pointed out that the rule in Browne v Dunn ((1893) 6 R 67) arises in that the Commission cannot be asked to accept Ireland's evidence over that of the Applicant in relation to the sequence of events when the Applicant was not challenged in that regard. 52It is noted that, consistent with Ireland's evidence, none of the witnesses saw the Applicant change arms, although Beasley, Feeney and Versi all thought it was Ireland's right arm that was being used in the restraint hold when they attended the scene rather than the left as Ireland and Nagy stated. 53Although the Applicant was focused on Ireland and did not see Tamara Carter and Souvannary Khoeung, they were, without doubt, the first people who passed by. The Applicant contended that Carter and Khoeung corroborated his evidence in relation to the early struggle with Ireland. The filing contractors were walking side by side from the archives building behind the doctors' quarters on their way to the Clinical Information Department in the administration block of Blacktown Hospital. They were pushing a trolley containing files down a ramp and were about to negotiate some stairs when they observed the two men to their left and heard Ireland's voice. Carter estimated they were 4-5 metres away. Khoeung was unable to estimate distances. Carter gave evidence that the Applicant had Ireland on the ground and she saw the latter's arm restrained behind his back at around the middle to the bottom half of his back. Carter said that she heard the man say that his shoulder was aching. In cross-examination, Carter was not clear that she heard Ireland mention his shoulder but insisted that she heard Ireland repeatedly saying, " You're hurting me, you're hurting me, get off me ". Khoeung confirmed Ireland's evidence as to the arm hold. She recalled the Applicant holding Ireland on the ground with his arm behind his back but could not remember which arm and was unable to indicate at what point in time she saw the arm hold. She also recalled Ireland saying, " Get off me, I work here, you're hurting me ". Khoeung also heard him complain to the Applicant that he was hurting his shoulder. 54Carter and Khoeung continued down the ramp and along the pathway. They stopped for a short time to observe. Carter supported the Applicant's version that Ireland continued to be aggressive and agitated. She said that she saw Ireland continuing to struggle until the Applicant received assistance. They said they observed a nurse (Kassing) come out of Bungarribee House. They yelled out " Code Black " to her and she ran back inside the building. Shortly thereafter, two men, who were later identified as psychiatric nurses (Beasley and Quiah), ran out of Bungarribee House. 55One of the young contractors heard the Applicant calling out " Code Black ". In cross-examination, Ms Carter said she didn't know what a code black was. She thought it might have been an armed hold-up. The Respondent submitted that it is unacceptable for workers to have to experience such a potentially frightening situation, in circumstances where it could have been avoided altogether. 56The first person the Applicant saw was Carolyn Kassing and she corroborated his evidence to the extent that he had Ireland on the ground and had his arm behind his back in a restraint. The Applicant asked her to seek assistance from the security staff. Kassing gave evidence that she saw the Applicant holding Ireland's arm high up against his back but could not recall which arm. 57Beasley and Quiah gave evidence that they considered it necessary to assist the Applicant to " hold down " Ireland when they first arrived on the scene. Ireland admitted struggling and trying to break free. He also admitted that he was able to break free of the restraint hold while the security officers were present and " struggle my way into a sitting position ". Ireland further gave evidence that the security guards who were holding him down continued to do so until they realised that he was not resisting. 58Beasley gave evidence that he heard Ireland complain that his shoulder hurt. He said that the degree of force used by the Applicant " seemed excessive to him ". Beasley also confirmed that Ireland's right arm was forced up along his back and that there was a bit more force to it than just a bent arm: Bolger: What do you mean by force? Beasley: It was up closer to his shoulder blades. Q: I suggest to you that the arm was down around the small of his back? A. No it wasn't. Q. And it was being held there by Mr Nicolaides. A. That's correct. Q. It wasn't being forced up further. A. My impression was that there was a fair amount of force being used to hold the arm in place. 59The Applicant called for assistance from Feeney, to whom he said, " Code Black get security and police ". Feeney gave evidence that after asking Beasley and Quiah to assist the Applicant, she stood at the top of the stairs a short distance from where the two men were and observed that Ireland's arm was right up his back.: "[The Applicant] was kneeling over the male. He was holding the man's arm behind the man's back and pulling the man's arm up the man's back in the direction of the man's head. His knee was on the man's back and he was using his knee to push or hold the man down on the ground." 60That evidence was consistent with the statement she gave to the investigators after the incident in which she wrote: "He had the male on the ground face down and his arm pulled up on his back with the security's knee resting on his back preventing the male person from getting up." 61The Respondent submitted that her testimony was consistent with that of Ireland who stated that: "He still had my left arm pinned up behind my back with one of his knees also forced into my back area, with my face pushed into the ground." 62Feeney was unshaken during cross-examination in her evidence on that issue indicating that she was positive about what she had witnessed: Bolger: He was only resting his knee on his back. Feeney: No he was not. Q. Are you sure about that? A. I'm positive. Q. The arm was very high up and as Mr Ireland tried to talk to me,he applied more pressure with his knee forcing his head back down to the ground, okay. So [there] was pressure. It wasn't just resting. A. You say his knee was pushing his head down? Q. The whole upper torso down, because it was quite, you know like he tried to say to me different things, but because he was turning a little bit he was pushed back down. ..... A. Philip had him held firmly, very firmly on the ground. The more he struggled, the more firm he was held on the ground, so he wasn't struggling too much. He has tears in his eyes by this time, you know, so he wasn't struggling. I don't know how long before I got there they were struggling, but he was pretty well in pain. 63Feeney stated that she heard Ireland screaming in a tone which suggested to her that he was in some pain. Although she was aware that it was Ireland's right arm that was being held behind his back, she said she could not recall which shoulder Ireland was complaining about. Feeney, who was experienced in restraining patients, felt that the restraint on Ireland was " severe " as it was causing him pain. Feeney could see from Ireland's face that he was in distress. 64Nagy gave evidence that when he first arrived at the scene, Ireland was lying on the ground with his left arm up his back and the Applicant's knee was placed in the region of his back. 65Versi gave similar evidence although he recalled that it was Ireland's right arm that was being held up his back. Versi said he heard Ireland complain that his shoulder was hurting and the Applicant " definitely had his knee at [Ireland's] back ". 66The Applicant admitted that his knee may have been in contact with Ireland but denied the latter's allegation that the Applicant had " one of his knees forced into [Ireland's] back area, with [Ireland's] face pushed into the ground ". It was pointed out, on behalf of the Applicant, two eyewitnesses backed up that contention. Beasley gave evidence that the Applicant's knee was on Ireland's back however he could not say whether it was being used by the Applicant as part of the restraint. In her contemporaneous statement, Feeney stated that the Applicant's knee was resting on Ireland's back. 67The Respondent reasoned that if the Applicant did change his hold on Ireland's arm before he called out to Kassing, as he claims, then it was Ireland's right arm that was being forced up behind his back in the manner described by Beasley and Feeney and which caused Ireland the pain and distress described by Carter, Khoeung, Beasley and Feeney. Ireland gave evidence that the twisting of his arm had caused him " unbearable pain ". The Respondent reasoned that even if the Applicant's evidence about changing arms is accepted, he nonetheless used excessive force in relation to the right arm. 68The Respondent distinguished the facts of this case from the facts in New South Wales Nurses Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Health Service [2007] NSWIRComm 164 pointing out that evidence in relation to the key areas was strongly consistent and was strengthened by the evidence of Ireland as to the pain he suffered which required him to seek medical attention. 69It was pointed out that there was no evidence before the Commission to support Ireland's contention that he sustained injuries to his left shoulder as a result of the incident. In addition, there were no medical records produced to the Commission in relation to the treatment provided to Ireland at the Emergency Department; the permanency or transient nature of the injury; no evidence as to the extent of the injuries; any time taken off work as a result of the injuries; or the cause of the injury - whether it was caused by the restraint applied by the Applicant or the struggle Ireland put up. It was further pointed out that an injury report was not filed by Ireland either with his own employer or with the Respondent, nor did Ireland lodge a worker's compensation claim nor was there a damages claim made on the Respondent by either Ireland or his employer. 70It was contended that the injury Ireland sustained, if any, was not serious. That was borne out by the fact that, according to his own evidence, in the space of 40 minutes after the incident, he had attended and been seen to at the Emergency Department, seen the police and given his statement to the security staff. He had also not been examined by the Respondent in relation to any injury he sustained and did not provide any evidence of any real injury. Ireland did not give any evidence of bruising or marks on his arm and made no complaints. Versi volunteered the information that Ireland had bruise marks on his arm and he had taken photos of the bruises. Those photographs were neither produced nor discovered in the proceedings. 71The Applicant suggested that it was a recent invention by Mr De Robillard that he had regard to such medical records when he compiled the Executive Brief. It was pointed out that there was no evidence adduced to support that contention. In any event, it is the context in which force is applied that is the paramount consideration and not whether "excessive force" was applied. ( Nakhl ). 72The Applicant had asked for the Police to attend the scene. It was pointed out that such a request is not synonymous with the actions of a man who has done anything wrong. 73In conclusion, the Applicant provided the only credible and consistent version of what occurred leading to the arrest and restraint. (ii) Tears of pain/distress 74The Applicant pointed out that Ireland did not give evidence that he had been in tears or crying. In addition, it was noted that Feeney did not include any mention of tears in the statements she made on 7 September 2009 and 4 May 2010. Yet she was insistent, during cross-examination, that Ireland was so distressed and was in so much pain when he was held firmly to the ground that ceased struggling, had " tears in his eyes " and was " pretty well in pain ". 75Beasley described them in his evidence as tears of " anger ". 76Khoeung gave evidence that she did not recall hearing or seeing Ireland crying. 77During cross-examination, Carter clarified her statement evidence that she could see Ireland crying. She said that she had a clear recollection that she heard him crying but was not clear that she had actually seen him crying. 78Nagy gave evidence that when the Applicant eventually let the Applicant up, he could see that Ireland had been crying. (iii) The release from the restraint 79The Respondent pointed out that although none of the witnesses saw Ireland pose any physical threat to the Applicant while he was on the ground, the Applicant did not take the opportunity to release him when the two male nurses came to his assistance. In fact, the Applicant was reluctant to release Ireland even when the Security Officers arrived to offer assistance. During cross-examination, Nagy said that the Applicant actually pushed down on Ireland's shoulders and then said: " You're not going anywhere until the police arrive ". In his statement, Nagy gave evidence that he had asked the Applicant twice to release Ireland before he finally relented: 10. When I first arrived at the scene, Mr Nicolaides had the contractor restrained to the ground. The contractor said he was a plumber and needed to turn his truck off. I said to Mr Nicolaides: "Just let him up." 11. Mr Nicolaides let the contractor up into a sitting position but he still held the contractor's left arm. The contractor's face had grass on it and he appeared to be crying. The contractor tried to stand up but Mr Nicolaides pushed him back to his knees. I said to him: "Phil, let him up." 13. Mr Nicolaides let the contractor stand up and then he said to me: "He's under arrest. He's in your custody." 80The Respondent submitted that those last words were revealing as they indicated that the Applicant had no intention of releasing his hold on Ireland until the Police arrived even though his use of force was plainly causing Ireland pain and distress and even though Ireland posed no threat to the Applicant's own safety or the safety of anyone else. 81Feeney insisted that the Applicant had to be told by the Security Officers to release Ireland or let him up. It was only when more people arrived that the Applicant allowed him into a sitting position and then into a standing position. 82The Respondent concluded that the failure to release Ireland meant that the Applicant was subjecting him to excessive force. 83The Applicant denied the allegation that he had pushed Ireland back down once he had had been let up into a sitting position. The Applicant said that he allowed Ireland to sit up and no longer had him under physical restraint once the security officers attended the scene and he was confident that there were enough personnel around should Ireland once again become aggressive. Beasley corroborated the evidence of the Applicant in that regard. Nevertheless, Beasley gave evidence that he did not feel that his own safety was at risk nor could the Applicant have reasonably believed that his safety was at risk at that point in time. Beasley said he thought something about the situation was unusual because, although he heard Ireland ask to turn his vehicle off, the Applicant continued to maintain his restraint of Ireland who continued to be distressed. (c) The Arrest 84In his affidavit evidence, the Applicant confirmed that prior to Feeney attending the scene, and while he was restrained on the ground, Ireland informed him, " I'm a plumber. I have a truck around the back " to which he replied, " You are under arrest for assault and you're not going anywhere until the police arrive ". A number of witnesses heard the Applicant state that he was arresting Ireland. Beasley heard the Applicant tell Ireland that he was under arrest for assault. Feeney's recollection was that the Applicant said he was arresting Ireland because Ireland did not have an ID but she could not be sure. Nagy said he heard the Applicant tell Ireland that he was under arrest for assault and trespass. 85The Applicant was aware of s. 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) which requires a private citizen, once an arrest has been made, to take the person under arrest to an authorised officer such as a policeman. 86It was pointed out on behalf of the Applicant that up until Ireland was allowed up into a sitting position, his identity was not known by anyone in the absence of any identification. The Security staff checked and determined that there was indeed a truck at the back of the quarters and Nagy made a call to the Maintenance Department from which he ascertained that Ireland was a contractor working on site. The Applicant had not been able to make such inquiries because, despite Ireland's testimony, he did not have a mobile telephone on his person. That was corroborated by Feeney and Beasley. 87Once Ireland's identity was ascertained, Beasley and Quiah accompanied him to the back of the quarters to switch off the truck. 88The Respondent pointed out that the evidence of the other witnesses showed that the Applicant had other motives for arresting Ireland and that evidence further undermined the Applicant's account. The Respondent also pointed out that most of the witnesses heard Ireland tell the Applicant that he was a contractor and yet the Applicant continued to restrain Ireland until persuaded by Nagy to let him go. 89The Police attended and, after interviewing everyone involved, including the Applicant, determined to take no action. 90The Applicant denied any misconduct or that he breached the Code of Conduct or that his conduct warranted his dismissal. He challenged whether the Code of Conduct applied to him as he was not on duty at the time of the incident. He denied any injury sustained by Ireland. He pointed out that their respective statements were conflicting and the other statements contained inconsistencies. 91Tommy Baillie, Leading Hand Carpenter, gave evidence that the Applicant spoke to him after the incident. He said that the Applicant had come round the corner at a brisk walk and pointing at Baillie, being fired up and swearing said: " Fucking hell, why the hell is he here? This wouldn't have happened if he had an ID. " (d) The Investigation Process 92The Respondent provided details of the investigation process as follows: 92.1 Mr De Robillard formed the view that an investigation was warranted. He consulted the Human Resources Department, proceeded with the investigation and made findings which he included in a 200-page Executive Brief; 92.2 He forwarded the Brief to the head of Human Resources at Blacktown Hospital (Mr Warren McReynolds) together with the Applicant's response; 92.3 Mr McReynolds prepared a cover letter and a short outline recommending the Applicant's termination and forwarded them together with the Executive Brief to more senior officers of the Respondent; 92.4 A recipient of that recommendation, Mr Brian Beatty, Acting Manager-Human Resource Services & Policy, received the documents, including the Executive Brief, on 18 January 2010. On the same day, he supported the finding that the employment relationship had been compromised and made his recommendation that the Applicant be dismissed; 92.5 Mr Adib Malak initialled the document and forwarded it to the Chief Executive; 92.6 Professor Boyages indicated support for the termination of the Applicant's employment by initialling the document. 93The following criticisms were made of the investigative process on behalf of the Applicant : 93.1 Feeney's evidence that she was present and in close proximity could not possibly have been right and must be a recent invention designed to fill in gaps in the Respondent's evidence and explain other evidence for the following reasons: * The Security Officers, Nagy and Versi, had not seen her with the Applicant, Ireland, Beasley and Quiah as they approached; * The Contractors, Carter and Khoeung, did not indicate that they saw Feeney or passed anyone else on their way to Bungarribee House; * Feeney did not mention that she saw Carter and Khoeung; * The Applicant conceded that Beasley said he saw Feeney standing outside although he was not aware of Feeney following him and Quiah after she asked them, outside the front door of Bungarribee House, to go over and help; * Although Feeney had a good view of Ireland when he sat up and later stood up, Feeney described the colour of Ireland's singlet, shirt/vest as "yellow" when, in fact, it was "orange" in colour; * Feeney gave conflicting evidence in relation to the restraint. She said in her statement that the Applicant's knee was "resting" on Ireland's back but was adamant during cross-examination that the knee was being used to restrain Ireland - a statement not corroborated by Beasley whose recollection was that the Applicant was restraining Ireland by holding his right arm behind his back but could not categorically state that the Applicant was using his knee to restrain Ireland; * Feeney gave oral evidence that Ireland tried to talk to her. She did not include mention that in her statement evidence and it was not corroborated by Ireland; * Feeney was adamant that the Applicant had not provided a basis for arresting Ireland and had not used the word "assault". The evidence, nevertheless, indicated that the Applicant said that Ireland was being arrested for assault and Nagy and Versi gave evidence that the Applicant told them he had arrested Ireland for assault and trespass. * Feeney said that Ireland told her that the Applicant had assaulted him. Nevertheless, neither Beasley nor the Security Officers placed Feeney close enough, or there at all, to Ireland to be able to hear or speak to Ireland. 93.2 Carter and Khoeung confirmed that when they were taken to the Security Office to prepare their statements, they had discussed the contents of their statements with one another in the presence of the Security Officers prior to each sitting at a separate computer to type out their statements. 93.3 the Respondent did not interview any witnesses to the incident; 93.4 the Respondent did not interview Ireland despite being advised by the Applicant that his version of events was " totally and utterly false "; 93.5 the Respondent interviewed Tommy Baillie, who was Acting Operations Manager on the day of the incident and who was not a witness to the incident, on 23 September 2010. Baillie was responsible for Ireland being on site and for supervising him. Both Baillie and Ireland failed to adhere to the Respondent's policies in relation to site induction and the carriage and display of identification. The Commission was reminded that, during cross-examination, Ireland admitted that he had neither seen nor read the Handbook yet the Applicant was dismissed for his alleged failure to comply with work- place policies; 93.6 the Respondent subjected the Applicant to a disciplinary interview on 18 September 2010. Despite the Applicant being assured that the meeting was to provide him with an opportunity to " tell us in your own words what happened " and that " no decision has been made ", the meeting commenced with Ms Morales advising him that the letter to him dated 14 September 2010 was a disciplinary letter. Nevertheless, the Applicant provided an account of what occurred consistent with the statement he provided on 4 September 2010; 93.7 the Respondent examined the conduct of the Applicant at that interview in an unfair and improper or unreasonable way. The Respondent had analysed the events that occurred in not more than 5 minutes in small components or bits and tried to question the decisions made by the Applicant. It was argued that that type of analysis pervaded and infected the entire interview and suggested that the Respondent had already made up its mind. It was argued that the Respondent ought to have examined the incident and events in their context and in the manner in which they unfolded; 93.8 the investigators had adopted a double standard with Ms Morales indicating that Ireland ought to be given the " benefit of the doubt " but the Applicant was not afforded the benefit of the doubt; 93.9 the investigators blamed the occurrence and escalation of the incident on the Applicant. That was evident from the transcript of the interview. An example of that was the unreasonableness of the question as to what he was doing outside his residence; 93.10 the Respondent did not have a policy to support the contention by Mr De Robillard that employees were required to wear ID when off duty and attending the office outside hours on the Campus. Nagy gave evidence that he did not agree with that contention and that he did not wear ID when he was going about normal non-work activities around the campus; 93.11 the investigators adopted a negative and biased attitude towards the Applicant, as evidenced by the transcript of the interviews with him and with Baillie and the presumptions contained in the latter; and 93.12 Despite the fact that Mr de Robillard and Ms Morales conceded that they have no expertise in security matters and no knowledge of restraint holds, there was no evidence that they sought assistance in that regard prior to determining the fate of the Applicant. In particular, there was no evidence that Mr Ken Lingard, the Master Security Licence Holder for the Respondent, had been involved in, or had been consulted about, the investigation; 93.13 It was unclear whether the Respondent had complied with the provisions of the Public Sector Employment and Management Act 2002 in terminating the Applicant's employment. In particular, there was no instrument of delegation placed before the Commission which indicated that the Department Head/Division Head authorised Mr De Robillard to carry out the investigation; and 93.14 Professor Boyages did not give consideration as to whether the Applicant had engaged in misconduct serious enough to warrant his dismissal as opposed to another form of penalty or remedial action. SUBMISSIONS 94The Respondent advised the Applicant that he was terminated for breach of the NSW Health Code of Conduct (ss 1.1 Personal and Professional Behaviour; 1.2 Good Faith; 6.3 Use of Discretionary Power; 7.2 Violence and 8.1 Occupational Health and Safety) and SWAHS Safe Work Policy for dealing with Aggressive Persons. i) SWAHS Safe Work Policy 95The version of the SWAHS Safe Work Policy which was in force on 4 September 2009 was prepared by the Applicant. The policy relevantly provided as follows: i) Security Officers not to attend scene or incident on their own; ii) to carry and fully utilise their PPE (personal protection equipment); iii) Security Officers should remain a safe distance from the aggressive person/s while verbally attempting to de-escalate the situation; iv) Security Officers should not place themselves or others at risk; v) Security Officers should assess all situations before coming into contact with the aggressive person/s; and vi) Security Officers should not engage in any physical restraint or contact of the aggressive person/s unless they believe they have the necessary resources available to deal with the situation with the minimum risk of injury to themselves or other staff members. (vii) .... (viii) Carry a phone and/or two-way radio. 96It was denied that the Applicant breached the above policy for the following reasons: 96.1 The Applicant was not employed as a Security Officer but as a Security Operations Manager. Nevertheless, he was not attending a scene or incident on his own nor was he acting as a Security Officer on that day. He contended that he was merely a private citizen returning to his residence to collect his luggage and proceed on holidays and, therefore, the policy did not apply to him; 96.2 He had acted in good faith when he asked to see Ireland's ID in the absence of any knowledge that the latter was a contractor and was acting in a strange manner outside the Applicant's residence and that of his colleagues; 96.3 The Applicant could not predict that Ireland would become aggressive when questioned as to his reason for being at the Quarters which were also the Applicant's residence; 96.4 Therefore, he did not have sufficient time to make any inquiries of Security or Maintenance and he was not carrying his mobile telephone on his person. In addition, Ireland ought not to have reacted in the manner that he did; 96.5 The Applicant maintained a safe distance from Ireland and provided him with an opportunity to exit by either of two pathways that led out of the hospital grounds. Even when Ireland approached and pushed him, the Applicant moved Ireland back by pushing him with his hand so as to maintain a safe distance; 96.6 The Applicant denied that his actions amounted to violence and argued that his action in pushing Ireland was an act of self defence and an act that was consistent with the Respondent's policies as it was intended to maintain a safe distance between him and Ireland; 96.7 The Applicant insisted that he took reasonable care for Ireland's safety. There was no time to seek assistance because Ireland escalated the incident which occurred very quickly and then the Applicant had to wait some time before he saw passers-by and called to them for assistance. He took Ireland to the ground with minimal impact. There was no suggestion by Ireland of pain until after he tried to break free and was restrained once again by the Applicant. Prior to that point, there was only a reference to breathing difficulties. No evidence has been provided of what injury, if any, was sustained by Ireland to his left shoulder on that day or whether it was an aggravation of a pre-existing injury; 96.8 The Applicant had control of the situation at all times and did not place either himself or others at risk; 96.9 The Applicant did believe that he had the necessary resources to deal with the situation. The Applicant pointed out that the Policy refers to " minimum " risk of injury and not "no" risk. Nevertheless, he was not physically injured nor were there any other staff members in the vicinity who could have been injured; 96.10 When faced with verbal aggression from Ireland which later escalated to physical aggression, he acted professionally in the manner in which he restrained and arrested Ireland; 96.11 The Applicant had used his discretionary powers appropriately in that, as a private citizen, he had every right to arrest Ireland under LEPRA. He made it clear that he was arresting Ireland for trespass and the subsequent assault on the Applicant when he made an inquiry of a person he observed to be acting strangely outside his residence and that of his colleagues; and 96.12 Ireland was not a staff member. It is noted that, during cross-examination, the Applicant agreed that this procedure applied to dealings with both aggressive visitors and patients. 97The Respondent submitted that the Policy provided the Applicant with the option of remaining a safe distance away from Ireland, or retreating or taking further steps to de-escalate the situation. It was argued that the Applicant failed to adhere to the Safety Rules by physically restraining Ireland instead of electing one of those options. It was acknowledged that one can readily imagine a situation where a security officer comes upon a confrontation while off duty, or otherwise without a partner. Such situations underscored the need for the security staff to retreat and seek help. The Commission was reminded that Versi gave evidence that he would do that if placed in the situation the Applicant found himself in. ii) Zero Tolerance Response to Violence in the NSW Health Workplace Policy 98The concept of evasive self-defence is also found in the NSW Health Zero Tolerance Response to Violence in the NSW Health Workplace Policy PD 2005_315 (the "Zero Tolerance Policy"). 99The Zero Tolerance Policy provided at section 8.1.6: As outlined throughout this document and in the NSW Health Security Manual, no staff member should knowingly place themselves or others at unnecessary risk. However, effectively exercised evasive self defence may provide staff with a controlled physical response when retreat is blocked, when all other non-physical strategies have failed and the staff member is under threat of or actual attack. The purpose of evasive self-defence is to assist staff to escape from a violent situation. When used properly it may minimise the risk of injury and minimise the potential trauma. 100The Zero Tolerance Response to Violence Policy also set out, in section 8.1.2, a Summary of Immediate Response Options. These are non-physical strategies to deal with violent visitors which must, where possible, be employed before resorting to physical force: * issuing a verbal warning; * using verbal de-escalation and distraction techniques; * seeking support from other staff; * requesting the aggressor leave; * activating a duress alarm; * calling the police. 101The Applicant denied the allegation that he did not adhere to the Zero Tolerance Response to Violence Policy pointing out that the Respondent refused to recognise or accept that he had been subjected to verbal violence which quickly escalated to physical violence. 102The Applicant also pointed out that, although the Policy applied equally to Contractors working on site, there was no evidence that Ireland had been inducted properly, or at all, into this Policy. 103The Applicant maintained that the action he took was in self-defence. Initially he had moved away from Ireland, then pushed Ireland back to maintain a safe distance and finally, while Ireland was in the process of throwing a punch, he had restrained him in order to protect himself from being hit. 104During cross-examination, the Applicant agreed that none of those response options involved physical restraint of visitors. The Respondent pointed out that the Applicant's professed attempts at de-escalation were limited to questioning Ireland about his status and, it was submitted, fell well short of the non-physical strategies he ought to have employed such as those detailed by Versi in his evidence. 105It was suggested to several of the Respondent's witnesses in cross-examination that, on the Applicant's version of events, Ireland had himself breached the Zero Tolerance Policy by pushing the Applicant. It was submitted by the Respondent that if Ireland did push the Applicant, then clearly he breached the policy too. However the appropriate response was to inform management of the breach for them to take up with Ireland's employer, not restraining Ireland to the ground. 106The Respondent pointed out that the Applicant's Position Description stated that the position holder was required to comply with the Zero Tolerance Response to Violence Policy. iii) The NSW Health Policy Guidelines for Security Risk Management in Health Facilities (Chapter 14) 107The NSW Health Policy Guidelines for Security Risk Management in Health Facilities (the "Guidelines") is the overriding policy on the use of force by security officers employed by the Area Health Services in New South Wales. The policies in the document are broad policies within which Area Health Services in NSW can set more detailed policies. Individual health facilities within an Area Health Service can set even more detailed policies according to their own individual circumstances. One such example is the respondent's Safe Work Procedures for Blacktown and Mt Druitt hospitals. 108The Applicant agreed that the principles contained in a section of that policy entitled "Use of Force in the Execution of Duty" were " the principles I worked under ". 109The key principles are: For non-patients physical force should be limited to: * Evasive self defence as is necessary to protect themselves, with due regard to the concept of "reasonable force" and * The minimum force necessary to protect staff while observing their own safety. "Evasive self defence" occurs when - * that person believes the action is necessary to defend themselves or another person; or * the action is necessary to prevent or terminate an unlawful deprivation of their liberty or the liberty of another person. In order to be lawful, the conduct must be a reasonable response in the circumstances as he or she perceives them, and there must be some reasonable proportion between the threat perceived and his or her response to it. The purpose of evasive self-defence is to assist staff to escape from a violent situation when retreat is blocked, when all other non-physical strategies are inappropriate or have failed and the staff member is under attack or attack is imminent. 110The Respondent submitted that the evidence clearly demonstrated that the applicant did use force for the purposes of evasive self-defence and even his initial decision was due to some perceived risk to safety. His prolonged and harmful restraint of Ireland, especially once help had arrived, was disproportionate. 111The Applicant denied that he had breached the Guidelines. In addition to the response provided in relation to Safe Work Procedure, the Applicant submitted as follows: 111.1 The Guidelines recognised that the technique of "evasive self defence" is a technique of last resort in that it was to be used when " all other non-physical strategies are inappropriate or have failed and the staff member is under attack or attack is imminent ". In recognising that physical force (undefined) may have to be used in the course of the duties of Security staff, the Guidelines limited the physical force to, inter alia, "evasive self defence as is necessary to protect themselves, with due regard to the concept of reasonable force". In doing so, staff are required to be "defensive rather than aggressive", "controlling rather than punitive" and to use "no more force than is reasonable in the circumstances". 111.2 He had acted within the Guidelines in that he employed the strategy of Evasive Self Defence in dealing with Ireland. He stressed that he had tried non-physical strategies and they had failed. He found himself under attack and further assault was imminent. 111.3 The test is clearly "subjective" in that it is up to each individual to determine what is necessary given the set of circumstances they are confronted with. 111.4 His actions were defensive and controlling and he only used reasonable force in the circumstances he found himself in. The Commission was reminded that the Police had been called at the request of the Applicant and the Police had determined that no action would be taken against the Applicant. 112The Respondent contended that the Applicant's actions constituted serious misconduct for the following reasons: 112.1 The Applicant held a position of trust and understood the Respondent's expectations, policies and procedures regarding the use of force in the workplace; 112.2 The Respondent places a strong emphasis on the avoidance of violence and protection of visitors and patients. That ethos is especially clearly stated in the Guidelines and the Zero Tolerance Policy. 112.3 That ethos also underpins the Safe Work Procedure 001 - Managing Aggressive Persons. In the section titled "Role of Security Services" the NSW Health Security Policy provides: "The duties of security staff will vary according to the type, location, size and local circumstances of the health workplace. However, in broad terms they are generally responsible for assisting with the security of staff, patients, visitors and assets of the health workplace. The security role should never be confused with that of a police officer. Although security staff may assist police, the primary role of each service is different. The security officer/health and security assistant roles are health service specific roles with strong emphasis on prevention and assisting in the management of incidents." 113When cross-examined, the Applicant agreed that a security officer " patrols, observes, reports ". It was submitted that the Respondent requires, as a consequence of the particular needs of health workplaces, its entire security staff to strictly adhere to its procedures for managing confrontations. In that regard, the Respondent relied on the statement evidence of Beatty wherein he stated: 14. Security Managers and Security Officers are in a position of trust in the organisation. They are engaged to ensure the safety and well being of staff, patients and visitors to the Area Health Service. In my view, there is a community expectation that they will help assist and protect members of the public who come into contact with the Area Health Service. For many people who visit a hospital, the security officers are their first point of contact. 15. They are required to take all reasonable steps to avert violence. iv) Position Description 114The Applicant's Position Description required him to, in particular,: [O]perate within the established strategic framework, policies and procedures [Participate] in the Security Business Review Group and assume project roles as required [Provide] leadership for the provision of operational management for the provision of Security Services that support clinical service delivery; and Manage the day to day operations of the Security Services Comply with the Code of Conduct . He was required by clauses to: Follow the policies of the Health Service whether or not he agreed with these policies. (Clause 1.1) (U)ndertake all his duties in good faith and in the spirit of honesty, correct purpose and with the best motives. He will ensure that his actions are appropriate and totally within my area of authority. (Clause 1.2) Only exercise discretionary power (ie power to act according to his own judgment) for proper purposes and on relevant grounds (Clause 6.3) He will not act violently or knowingly place himself at unnecessary risk of violence; (Clause 7.2) He will take care and co-operate with his Health Service to prevent work-related injuries to himself and others. (Clause 8.1) 115The Respondent submitted that, by his actions, the Applicant had failed to comply with his obligations under the Code of Conduct. 116The Respondent pointed out that it was evident from the above that the Applicant had a leadership role within the Service. During cross-examination, the Applicant agreed that he had 20 security officers reporting to him and an operating budget of about $1 Million. 117Nagy and Versi attended the scene and saw their supervisor restraining a person who was in distress and claiming he was a contractor. Nagy had to ask the Applicant twice to release Ireland. The Respondent argued that such behaviour does not set an acceptable example to subordinates. 118Feeney and Beazley, both of whom are psychiatric nurses experienced in the use of restraints, felt that the applicant's use of force was "excessive" (Beasley) or "severe" (Feeney). These are staff members with whom security officers work when patients are required to be restrained. It was submitted by the Respondent that it is also unacceptable for them to witness their Security Manager using excessive force. 119The Applicant's evidence was also that he regularly attended the Security Review Group meetings and was involved in various matters of security policy such as revisions of the Safe Work Procedures and use of flexi-cuffs in patient restraints. 120The Respondent submitted that it relied on the Applicant to uphold its policies and procedures regulating security services. It also relied on the Applicant to be seen to be upholding its policies and procedures so as to set a good example to the security officers who reported to him. v) Law Enforcement (Powers and Responsibilities) Act 2002 121Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") provides as follows: 100 Power of other persons to arrest without warrant (1) A person (other than a police officer) may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 122It was submitted on behalf of the Applicant that he did not force Ireland to the ground and restrain him there for the purpose of evasive self defence. Rather, it was to make an arrest and deliver him to the police. 123The Respondent submitted that the Applicant knew, and understood, that he had no authority to make a " citizen's arrest " under section 100 of LEPRA. 124It was submitted that it was completely unacceptable for the applicant to conduct a citizens arrest in these circumstances for the following reason: 124.1 Section 100 empowers citizens to make arrests, should they wish to do so. It does not compel them to make arrests. A person's decision to make citizen's arrest will frequently be regulated by other rules such as occupational health and safety laws and rules governing the employee's workplace. When cross-examined, the applicant gave the following evidence: Commissioner: So my question was, the only time that a security officer can physically restrain a visitor to the hospital in accordance with the zero tolerance policy is when its in circumstances of evasive self-defence? Applicant: No, Commissioner. Q. But that's what the document says, does it not? A. Without going through the entire document, the portions of that you have read out says that, yes. Q. So where are the portions which say otherwise? A. Legislation, Acts of Parliament override policies and procedures. Q. That's your view, is it? A. Yes. Yes. Q. So your view is that if there is legislation, which permits security officers to physically restrain individuals, that overrides any policy, or procedure or protocol that the security officer's [employer] may have in place. A. If it hasn't been put into another policy and procedure giving a guideline. 124.2 The fact that the Applicant was, at the time, on an ADO did not, in the circumstances give him unfettered ability to make citizen's arrests whenever he chose to. He held himself out to Ireland as the Security Manager at Blacktown Hospital and on the premises of Blacktown Hospital. The Respondent's policies and procedures applied to the Applicant just as they would have had he been on duty at the time. The Applicant's actions were carried out in full in view of a number of the Respondent's employees. It was submitted that it would be ludicrous if the Respondent could not expect the Applicant to follow applicable workplace rules in such circumstances. 124.3 The Applicant's attendance at the VAST training course earlier in 2009 (at which security officers were trained in respect of the power of arrest under section 100 of LEPRA) did not provide the Applicant with a mandate to conduct citizen's arrests at his place of work without regard to the rules of his workplace. 125The Respondent submitted that the applicant's actions have caused the respondent to lose confidence in the applicant's ability to perform the role of Security Manager. In the position of Security Manager, the Applicant held a position of trust within the Respondent's organisation. He was required to uphold the Respondent's expectation that violence should only be used as an absolute last resort and for the purpose of evasive self-defence, after all non-physical means of resolving the confrontation have failed. It was submitted that, by his actions on 4 September 2009, the Applicant failed to meet that expectation in a very public way. 126The applicant conceded that the VAST course was run for security officers in industry generally and not for those working in a NSW Area Health Service. He also conceded that when he attended that course he was well aware of the Respondent's policies and procedures which applied to him in the exercise of his duties. WAS THE DISMISSAL UNFAIR, HARSH AND/OR UNJUST 127The Applicant urged the Commission to make a finding that the Respondent had not established the findings of fact that it relied on in terminating the Applicant's employment to the requisite standard. 128It was the Applicant's word against that of Ireland in relation to the initial confrontation. The Commission was urged to prefer the evidence of the Applicant whenever there was any material difference or conflict in their evidence. 129It was submitted that the evidence of those who observed or witnessed the subsequent restraint and arrest of Ireland was inconclusive in relation to the issue of excessive force. It was pointed out that the language used in their statements was subjective and imprecise. 130The Commission was reminded that, except for Baillie, who did not witness the arrest or restraint, none of the witnesses were interviewed by the Investigators. In addition, the Applicant was not interviewed as part of an investigation process. He was interviewed during what he was told was a "disciplinary meeting" on 18 September 2010. Nevertheless he had co-operated with Mr De Robillard and Ms Morales. At the end of the meeting, all three had conducted an inspection of the site of the incident during which the Applicant demonstrated that it was not physically possible for him to have grabbed Ireland by the right arm while the latter was on the veranda and dragged him down seven steps where he fell to the ground. 131The Applicant contended that the Respondent failed to acknowledge his rights, as part of the Zero Tolerance Policy in relation to Violence, that: 131.1 he was entitled to protection from Ireland's aggression and the violence that he had inflicted and was about to inflict on him; 131.2 the Applicant had acted appropriately in restraining Ireland in the absence of anyone else in the vicinity from whom he could have sought assistance bearing in mind he was not carrying a mobile telephone on him at the time; 131.3 the Applicant's failure to de-escalate the situation and his use of force to restrain Ireland should have been considered in the context of Ireland's assault on him and the risk of further, more serious assault in the form of a punch; 131.4 Baillie failed to properly supervise Ireland or to provide him with ID which resulted in the escalation of the incident; 131.5 the Applicant has not been the subject of any previous warnings or disciplinary action; 131.6 the termination would have a negative impact on his ability to secure alternative employment in the security industry given his age, experience and the findings against him. It was pointed out that the Applicant has 30 years experience in the security and law enforcement industry (21 years of which were in the Police force and the remainder in the Security Industry); and 131.7 the conduct of the Applicant did not warrant dismissal: New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 (29 June 2007); Director of PE His Agent The Director-General of The Department of Juvenile Justice and PSA and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221 in which the Full Bench considered what was said by Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599. 132The Applicant insisted that his conduct in restraining Ireland was evasive self-defence and was a lawful response to Ireland's assault. He argued that his conduct was permitted under the Respondent's policies although he was not working on that day and was acting in his capacity as a private citizen when he made the arrest under s.100 of the LEPRA. 133The incident had occurred on his rostered day off and therefore his actions were that of a private citizen. He pointed out that his actions did not strike at the heart of the employment contract and there cannot be said to be a loss of trust and confidence in the Applicant and a fundamental breakdown in the employment relationship. 134The Applicant contended that the Respondent had decided the matter on evidence that was not supportive of the allegation. He presumed that the Respondent must have taken into account inferences from the witness statements that should not have been drawn: Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410. 135The Applicant also contended that he was not guilty of misconduct. Alternatively, having regard to his conduct, his employment history, his professionalism and the lack of disciplinary record, the termination was disproportionate to the alleged misconduct and was not so serious as to warrant termination. 136The Respondent submitted that, on the evidence, it has discharged the onus of demonstrating that by his actions of 4 September 2009, the applicant engaged in serious misconduct. 137The Respondent pointed out that the principles to be applied in cases where an employer has dismissed an employee for out of hours conduct are set down in Rose v Telstra (U20564/98), a decision of Vice President Ross in the Australian Industrial Relations Commission: * the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or * the conduct damages the employer's interests; or * the conduct is incompatible with the employee's duty as an employee. After stating those principles, Vice President Ross went on to remark: In essence the conduct complained of must be of such gravity and importance as to indicate a rejection or repudiation of the contract by the employee. These principles have been approved in a number of subsequent decisions including the Full Bench decision in Farquharson v Qantas [2006] AIRC 488. 138The Respondent pointed out that the Applicant's own evidence indicates that he introduced himself to Ireland on the premises as the Security Manager of Blacktown Hospital and showed him his security licence. Therefore he had not conducted the arrest in his role as private citizen. 139It was submitted that the Applicant seriously compromised his relationship of trust with the Respondent by his disregard for its relevant policies in relation to use of excessive force to make an arrest. 140In addition, the Respondent's interests, it was submitted, were damaged by the fact that the Applicant's actions not only occurred on Hospital premises but in front of colleagues and co-workers and his conduct was incompatible with his obligations as an employee. 141The Respondent concluded that its decision to terminate the Applicant for serious misconduct was not, in the circumstances, harsh given the gravity of the misconduct, his relatively brief period of employment, and his refusal to accept that his actions on 4 September 2009 where unacceptable to the Respondent. RELIEF 142The Applicant is seeking reinstatement to his position as Security Operations Manager with the Respondent. It was argued on behalf of the Applicant that there is no evidence that the Applicant would not be able to return to work in that position or that reinstatement would be impracticable. 143The Applicant is also seeking payment for the period he has been out of work and a finding that the period of his employment is unbroken. In that regard, the Applicant has provided evidence of his attempts to obtain alternative employment to mitigate his losses. 144The Respondent submitted that reinstatement is impracticable in the circumstances. It was pointed out that the holder of the position of Security Manager is required to uphold the Respondent's expectations and policies regarding the handling of confrontations. It was argued that the Applicant had manifestly failed to meet that requirement in the presence of nurses, subordinate security officers and visitors to the hospital. 145In addition, the Respondent held grave concerns in relation to the Applicant's steadfast refusal to acknowledge any breach on his part of the Respondent's numerous policies and procedures. It was submitted that it would be untenable to return the Applicant to his previous position particularly in view of the fact that he would be required to: - uphold those policies and procedures; - train his subordinates on those policies and procedures; - revise those policies and procedures from time to time; and - participate in meetings of the Business Review Group to discuss policy matters. CONSIDERATION 146Mr Nicolaides served in the NSW Police Force for a period of approximately 21 years prior to obtaining a security licence in 2001. He has been working in the security industry for approximately ten years, of which one year and nine months were with the South West Area Health Service. He acted in the position of Security Manager for Blacktown and Mt Druitt Hospitals. 147The role of Security Manager required Mr Nicolaides to participate in meetings of the Business Review Group to discuss policy matters; to train his staff in policies and procedures and to revise those policies and procedures from time to time. 148One of the training modules focused on training staff on how to deal with confrontational situations and aggressive persons. The Applicant had engaged Mr Dolsea's firm, Security Training and Tactics Pty Ltd, to provide that training. In addition, Mr Dolsea had trained the Applicant for his Certificate IV in Security and Risk Management. 149Clauses 2.1 and 2.2 of the Respondent's "The Contractors Safety Handbook for Contractors Consultants Sub Contractors and their Employees" relevantly provides: Sydney West Area Health Service Procedures 2.1 Arrival at the SWAHS Facility All Contractors, Sub-Contractors and their employees (unless advised otherwise by the Project Officer) must report to the Project Officer/Facility Operations Manager/representative to make the necessary, check in/out, personal identification, security and site access arrangements..... 2.2 Identification and Keys All Contractors, Sub-Contractors and their employees are required to display adequate identification (eg clothing and company name and/or name tags supplied by the facility) whenever they are on SWAHS premises. .... 150The evidence indicated that Ireland did comply with the provisions of Sub-clause 2.1. He was escorted to the doctors' quarters by Tommy Baillie who was supervising him. Bailllie left him to work alone for a few minutes and went off to get some tools. 151In relation so sub-clause 2.2, it was not disputed that Ireland was not issued with a name tag by the Maintenance Department. The evidence from several witnesses was to the effect that contractors are not always issued with IDs. In fact, the Applicant gave evidence that in such circumstances he would pin a notice up on the notice board to alert his security officers to the fact that there were contractors on site. It appears, therefore, that it was not unusual to have contractors on site without an ID issued by the Respondent. 152In addition, sub-clause 2.2 does not make it mandatory that all contractors be provided with a name tag. It requires that name tags may be provided in addition to, or in the absence of, any other means of identification they may possess. Ireland gave evidence that, as was his usual practice, he was wearing company uniform which was a fluorescent shirt with the company logo on it. He could not recall whether he was wearing a vest. Mr Nicolaides stated that Ireland was wearing an orange vest. Feeney also confirmed that Ireland was wearing a vest or singlet although she described it as being yellow. Ireland said he had his ID in his truck at the back of the quarters. 153I accept that Ireland did not need to have it on his person because he was supposed to have been accompanied on site by Baillie who left him to fetch some tools. 154For his part, Mr Nicolaides did not present to a visitor on site as a member of the security staff, let alone the Security Manager. As he was on an authorised day off prior to commencing a period of annual leave, he was in "civilian" clothes - dress trousers, a shirt and a black parka. He was neither carrying a work ID nor a mobile telephone at the time of the incident. 155I accept that the Applicant's training would have cause him to be suspicious of the actions of Ireland in the absence of any knowledge that the latter was there to unblock drains around the doctors' quarters and he was walking around the front of the building to get access to the units to flush the toilets. As he approached the Doctors' quarters at around 10 am, he saw Ireland walking along the veranda of the quarters, pause at the doors to various rooms and partially open the door to the Applicant's room. The Applicant said he did not have a clear view of Ireland when he paused outside room 6 due to trees and shrubbery obstructing his line of vision. He then observed Ireland walk back along the veranda. 156Ireland gave evidence that following an exchange during which each asked the other for identification interspersed with expletives, the Applicant had grabbed him by his right arm and pulled him down the set of stairs where he fell to the ground. When he picked himself up, the Applicant tackled him back down onto the ground, grabbed his left arm and pinned it up behind his back. He said the Applicant threw his ID on the ground in front of him to confirms "" who the fuck I am.. " and advised him that he was under arrest for trespass. 157The Applicant gave evidence that he caught up with Ireland after the latter descended the stairs. There was the conversation during which he tried to determine the identity of Ireland but the Contractor had been abusive and uncooperative despite his oral confirmation to Ireland of his position as Security Manager and production of his Security Licence for inspection. 158Mr Nicolaides said that when he persisted with his questioning, Ireland pushed him causing him to take a step backwards. He said he took another step backwards to allow Ireland a chance to escape by either of two routes. Instead, Ireland came towards him, still swearing, and pushed him once more in order to take a third route which goes further into the hospital grounds. The Applicant said he stumbled backwards onto the grass. He said he pushed Ireland with an open palm in order to maintain a safe distance between them and it was when Ireland raised his fist about his waist high that the Applicant decided that to retreat on uneven terrain would be too risky and that that the best way to maintain his own safety was to move forward and restrain Ireland. 159There were no witnesses to the incident up until that point. 160It is highly surprising, given the Applicant's experience and knowledge, that he would have reacted in the manner that he did without provocation. Irrespective of who initiated the contact, and even if the Applicant's version of events up to that point is accepted over that of Ireland, the Applicant nevertheless breached the SWAHS Safe Work Policy which was in force as at 4 September 2009 and which he had prepared in that: 160.1 he was aware that he was alone in the area with Ireland; 160.2 he did not remain a safe distance from Ireland - even on his own version of events, he would have had to go up close to Ireland in order for Ireland to sight his Security Licence; 160.3 he placed both himself and Ireland at risk; 160.4 if retreat was blocked, then he was required to exhaust all non-physical strategies and be under threat of, or actual, attack prior to exercising evasive self defence in order to escape from a violent situation. 161There is no doubt that the Applicant could have retreated to Bungarribee House and obtained assistance by activating a duress alarm. As stated earlier, even if the evidence of the Applicant is accepted over that of Ireland, the Applicant was trained, and indeed trained his Security Staff, in diffusing/de-escalating violent situations. His actions, particularly in pushing Ireland back, escalated the situation. Indeed, he admitted that he had not attempted to calm Ireland down because he did not feel that there was sufficient time to do so. I do not accept that he pushed Ireland back in order to maintain a safe distance. Retreating would have been a better option. 162The Applicant had not properly assessed the situation and considered what his options were before approaching Ireland. It was obvious that Ireland had not gone into any of the quarters, the evidence does not indicate that he was carrying anything away from the rooms that did not belong to him; He was not carrying a mobile telephone or two-way radio; Bungarribee House was very close to him and he would have been able to go there and alert Security Staff about Ireland's presence thereby obviating the need for him to attend the site on his own; and Mr Nicolaides did not have the necessary resources to deal with the matter. After he restrained Ireland, there was no telling when someone would walk past in order for the Applicant to obtain assistance. 163It is not surprising that in the circumstances, the eye witnesses could not be sure whether it was Ireland's left arm or right arm that was restrained behind his back. Nevertheless, Carter heard Ireland calling repeatedly, " You're hurting me, you're hurting me, get off me "; Khoeung heard Ireland complain that his shoulder was hurting and also called out, " Get off me, I work here, you're hurting me "; Kassing saw the Applicant holding one of Ireland's arms high up against his back; Beasley gave evidence that he had formed the impression that the Applicant was exerting a " fair amount of force " to hold the arm in place and he defined " force " as meaning that Ireland's right arm was " forced up closer to his shoulder blades "; Feeney said she saw the Applicant holding Ireland's arm behind his back and pulling it up his back in the direction of his head; Versi said he heard Ireland complain that his shoulder was hurting. Ireland gave evidence that the twisting of his arm had caused him " unbearable pain ". 164Ireland gave evidence that the Applicant's knee was forced into his back area with his face pushed into the ground. Feeney gave evidence that the Applicant was using his knee " to push or hold [Ireland] down on the ground ". During cross-examination, she insisted that the Applicant's knee was pushing the whole of Ireland's torso down and when Ireland tried to talk to her, the Applicant " applied more pressure with his knee forcing [Ireland's] head back down to the ground "; and Versi was emphatic that the Applicant's knee was at Ireland's back. 165Carter gave evidence that her clear recollection was that she heard Ireland crying but she was not clear as to whether she had seen him crying; Nagy could tell that Ireland had been crying when the latter sat up; and Feeney was insistent that Ireland had " tears in his eyes " which Beasley described as " tears of anger ". 166On the other hand, Carter confirmed that Ireland was aggressive and agitated; Beasley and Quiah also confirmed that they had to assist to hold down Ireland when they arrived on the scene and continued to do so until he stopped struggling. Beasley confirmed that the Applicant's knee was on Ireland's back but could not say whether it was being used as part of the restraint. Khoeung could not recall hearing or seeing Ireland crying. 167There was no explanation for the fact that the Applicant failed to release Ireland when help arrived on the scene in the form of two psychiatric nurses and particularly, when the two Security Officers arrived on the scene. According to the evidence of Nagy, he twice had to tell the Applicant to release Ireland before he finally let him go. 168There is no doubt that it would have been a humiliating experience for Ireland. His aggressiveness or agitation during the restraint may have been a result of his pain. It is noted that there was no evidence before the Commission of what injuries he sustained, what treatment he received or what injury reports, if any, he filed with his employer or workers' compensation insurer. 169It is also noted that the Applicant was not charged by the Police with assault on Ireland. 170Nevertheless, the Applicant, in my view, breached the Principles relating to " Use of Force in the Execution of Duty ". The Applicant confirmed the key principles which require the use of physical force to be limited to evasive self-defence having regard to the concept of " reasonable force ". 171I do not accept that the Applicant's actions were a reasonable response in the circumstances. I do not accept, having regard to the policies, that all non-physical strategies had been exhausted; that the Applicant was under attack or that attack was imminent; or that the Applicant's actions were necessary to prevent or terminate an unlawful deprivation of his liberty. 172The evidence is beyond doubt that the Applicant approached Ireland in his official capacity and not as a private citizen. There is no doubt that the defence of citizen's arrest was a recent invention by the Applicant for failure to comply with the requirement to de-escalate the situation in circumstances where neither his physical safety nor his liberty were at risk. 173In any event, Section 100 of LEPRA does not, in my view, provide the Applicant with an excuse for his behaviour. The arrest did not fall within any of the criteria set out in that section. Ireland was not in the act of committing an offence under any Act or statutory instrument; nor had he just committed any such offence; nor had he committed a serious indictable offence for which he has not been tried. 174I accept that the Respondent has discharged the onus of establishing, to the reasonable satisfaction of the Commission, that the alleged misconduct occurred. I also accept that the Applicant is guilty of the misconduct alleged. 175Does the misconduct justify summary dismissal? The Commission's attention was drawn to the following judgments: New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 (29 June 2007): The long established industrial approach to whether certain conduct justifies summary dismissal was stated by Cook J in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374 in terms that: ".... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike out an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline..." Director of PE His Agent The Director-General of The Department of Juvenile Justice and PSA and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221 in which the Full Bench considered what was said by Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-9: "It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment." Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 @ 465, "...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." 176It was submitted on behalf of the Applicant that he had an unblemished employment record with the service prior to the incident in question and he still holds a Security License, Class 1AC. 177It was also brought to the attention of the Commission that the Investigation process was flawed in that. apart from Baillie, none of the witnesses were interviewed by the Investigator. 178It is interesting to note that Ireland, the victim in the present circumstances, was not interviewed by the Investigator. In addition, the Applicant was not advised that he was being interviewed as part of the investigation process. He was told he was required to attend a "disciplinary" meeting. 179Ireland ought not have been left alone to undertake work in the personal quarters of doctors and, obviously, the Applicant, without appropriate notice being given to the occupiers of those premises at the very least. If no notice had been given, then the Contractor should not have been left alone at those unsecured premises. 180As indicated earlier, it is difficult to comprehend how the Applicant, with his vast personal experience and in the position he held with the Respondent, would "lose it" in the manner described by the witnesses without there being any provocation by Ireland although, it is acknowledged, the Applicant has been trained in de-escalating precisely these types of situations. 181In the present circumstances, while the Commission holds the view that the Applicant has breached the Respondent's policies, the dismissal is harsh because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 182The Commission does not accept that re-instatement or re-employment are viable propositions in the present circumstances. Given the breaches outlined above, a return to work would be impracticable. Monetary compensation is the only viable proposition. DECISION 183The Commission awards a sum equivalent to seven weeks' pay calculated at the average rate of pay received over the last six months of the Applicant's employment. 184The payment is to be made within 21 days of today's date. 185I order accordingly. I Tabbaa 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. Decision last updated: 31 March 2011