Colin Hill and Sydney West Area Health Service [2012] NSWIRComm 1009

Industrial Relations Commission New South Wales Medium Neutral Citation: Colin Hill and Sydney West Area Health Service [2012] NSWIRComm 1009 Hearing dates: 9 February 201111 February 20111 April 201124 June 20118 July 201114 July 201115 July 201122 July 201128 July 20117 October 2011 Decision date: 14 May 2012 Before: Tabbaa C Decision: Claim dismissed Catchwords: Unfair dismissal - use of influence to gain a position for a friend - leaving work early without authority - improperly pressuring fellow officers - inappropriately attempting to contact and question other Security Officers contrary to directions - Investigation - breach of NSW Health Code - Notification to ICAC. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bigg & Anor v NSW Police Service (1998) ADIR 434; Graham v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023 Category: Principal judgment Parties: Colin Hill (Applicant) Sydney West Area Health Service (Respondent) Representation: R J Perrignon, Counsel (Applicant) Connect Legal, Solicitors (Applicant)

M Sullivan, Solicitor (Respondent) Lander & Rogers, Solicitors (Respondent) File Number(s): IRC 1298 of 2010

DECISION

Background 1The Western Sydney Local Health Network (WSLHN), formerly the Sydney West Area Health Service (the "Respondent") employs a Security Supervisor at its Cumberland Hospital campus and nine Security Officers who report to him. 2Two shifts are performed by security officers at Cumberland Hospital. The Day Shift is 6 am to 6 pm and the night shift is from 6 pm to 6 am. A handover is conducted twice a day at 6 am and 6 pm. Security Officers are required to work in pairs on both shifts. 3The Respondent and the Health Services Union (the "HSU") are parties to an agreement which prohibits Cumberland Security Officers from performing more than one overtime shift per week. For that reason, and given the relatively small size of the Security staff, it is usually necessary to obtain additional or fill-in security staff through an agency. 4It is the responsibility of the Security Supervisor to arrange for additional staff or fill in staff. However, if an urgent need arises or additional shift is added, the Security Supervisor or, in his absence, a Security Officer on duty may source a security guard in accordance with the process described below. 5The standard procedure followed when additional security staff are required on site to supplement the Respondent's security staff requirements at Cumberland Hospital when none of its full-time security officers are available is as follows: 5.1Attempts are to be made to obtain a security officer from another WSLHN campus. If unsuccessful, 5.2Attempts are made to contact on-call casual security officers employed in connection with the NSW Health Department. If unsuccessful, 5.3A request is made to a Labour Hire Agency. 6E Group Security Pty Ltd (the E Group) is the preferred provider. The identity of the Security Officer allocated by the E Group is at the discretion of that Agency with the only preference emphasised by the Respondent being for the Security Officer to be familiar with the Cumberland Hospital grounds and have regular experience in hospital facilities. The available shifts are generally shared around the pool of E Group security officers who have had previous experience at Cumberland Hospital. 7An example of such additional shift was when, from approximately February 2009 to July 2010, the Respondent received special funding for a patient from Long Bay Correctional Centre to be accommodated at Cumberland Hospital. That patient required, in addition to extra dedicated nursing staff, an additional security officer to be on duty round the clock. A description of the duties attached to that role was provided to the Commission. Mr James Flight, an E Group Security Officer, performed that particular shift on a number of occasions during early 2010. 8The Applicant, Colin Hill, was employed by the Respondent as a full-time Security Officer from November 2007 until his termination on 29 October 2010. 9The terms and conditions of his employment were governed by the Health Employees Conditions of Employment (State) Award. 10A number of allegations were made against the Applicant which were referred to Mr Adrian Bright, Area Director Corporate Services for investigation. Mr Bright asked Ms Gina Finocchiaro, Human Resources Manager, to assist him in conducting the investigation into the following: (a)(i)That the Applicant had used his influence as a Cumberland Security Officer to request the Security Contractor, E-Group, to gain a position for his friend, Mr James Flight (ii)That the Applicant then requested that Mr Flight be given as much work as possible at Cumberland Hospital; (iii)That the Applicant had given the E Group the impression that he had the authority to act on behalf of the SWAHS in regard to the employment and rostering of Security contractors at Cumberland; and (iv)That the Applicant rang E Group on 14 April 2010 to make enquiries as to why Mr James was terminated. 11On or about 30 June 2010 Mr Bright learned of further allegations which had been made against the Applicant. On 9 July 2010, prior to the conclusion of that investigation, correspondence was forwarded to the Applicant from Ms Finnochairo informing him that three further allegations had been made against him resulting in a further investigation to be made into his behaviour on 24 June 2010: (b)That the Applicant left work early without authority; and (c)That the Applicant had inappropriately pressured fellow officers; and (d)That the Applicant had inappropriately attempted to contact and question other Security Officers contrary to directions. 12Upon becoming aware of allegations about telephone calls and text messages being made by the Applicant to two other Security Officers, Messrs Martinac and Usel, Mr Bright had a discussion with Ms Finnochairo about the Applicant being stood down pending the outcome of the investigations. As a result, Mr Hill was advised by Ms Finnochairo, in correspondence dated 26 July 2010, that he was suspended from duties on full pay from the same date pending the outcome of the investigations into his conduct. 13Mr Hill was not returned to work prior to his dismissal. 14The investigations were carried out in accordance with the Sydney West Area Health Service Disciplinary Policy. 15The second investigation report recommended the termination of the Applicant's employment due to misconduct. 16Mr Hill was forwarded copies of the investigation reports dated 16 July (regarding allegation (a)(i)-(iv)) and 7 September 2010 (regarding allegations (b) - (d))and associated documents and findings and provided with an opportunity to respond. 17Ms Heather Gray, Chief Executive, wrote to Mr Hill on 22 October 2010 advising that all relevant information had been reviewed, including his response dated 9 September 2010. The Chief Executive advised that she had decided to proceed with the recommendation to terminate his services on the grounds of misconduct. It was deemed that the breaches to the Area Health Service and NSW Health policies and NSW Health Code of Conduct had been substantiated. 18The alleged breaches of the Code of Conduct were in relation to: Section 1.1Personal & Professional Behaviour I will carry out my job with: * Courtesy and respect for everyone * Openness, honesty and accountability When carrying out my tasks I will always: * Observe any laws, professional codes of conduct and ethics relevant to my profession. * Follow lawful directions from a person in authority. If I have a concern about following any lawful direction, I may appeal either through my workplace complaint/grievance procedures or to the Chief Executive of the Health Service or her or his delegate. Section 1.2Good Faith * I will undertake all my duties in good faith and in the spirit of honesty, correct purpose and with the best motives. I will ensure that my actions are appropriate and totally within the area of my authority. Section 1.6 Quality Service * To the best of my ability, I will provide accurate, frank and honest information to decision-makers, as required. Section 2.1Managing Conflicts of Interest * I will perform my duties fairly and ensure that my decisions are not influenced by self-interest or personal gain. Section 7.1Discrimination, Harassment and Bullying * I will never: * Harass, discriminate or bully other staff, patients or members of the public. *Victimise or take detrimental action against individuals. Section 8.1Occupational Health and Safety * I will: *Take reasonable care for the health and safety of people who are at my place of work and who may be affected by anything that I do or fail to do. 19Mr Hill was advised that he was terminated, effective immediately. 20Mr Hill is seeking a determination, pursuant to section 84 of the Industrial Relations Act 1996 (the Act), that his dismissal was harsh, unreasonable or unjust. 21He is seeking Orders: (1)that he be reinstated as a security guard or re-employed in another position (such as patient transport, or security guard at another hospital operated by the Respondent); (2)that the Respondent pay to him the remuneration which he would have received prior to reinstatement or re-employment, but for his dismissal; and (3)that his period of employment is taken not to have been broken by the dismissal. 22The Applicant submitted that, if the Commission considers reinstatement or re-employment impracticable, then he is seeking an Order that the Respondent pay to him the maximum compensation payable under the Act.