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. Allegation (a): 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 and then requested that his friend be given as much work as possible at Cumberland Hospital. 23Mr Colin Hill provided a written statement in which he provided details of his repeated attempts for approximately 12 months, commencing from June 2009, to get management at various levels to take action to cease rostering "P Plate" Security Officers at Cumberland Hospital. He contended that his concerns had not been adequately addressed despite the fact that he had been put at personal risk on a number of occasions. Mr Morgan, Security Supervisor, confirmed that Mr Hill had raised that concern with him during 2009. He said that he contacted Mr Ken Lingard, Security Co-Ordinator, about those concerns and tendered the written response he received on 14 October 2009 allaying those concerns. In any event, the Respondent had communicated its preference to the E Group that it not roster "P Plate" security guards at Cumberland Hospital. 24The Applicant met Mr James Flight while both were on holidays in Manila, Philippines, in November 2009. During general discussion they discovered that both were security guards. Mr Flight mentioned that he had obtained his provisional security licence but was experiencing difficulty obtaining employment. He said Mr Hill advised him to apply to Wilsons, and ISS and particularly to the E Group as it had the contract for providing casual security guards to Cumberland Hospital where he worked. 25Upon their return to Australia in early December 2009, Mr Hill said he made telephone enquiries from all three companies as to vacancies. He insisted that he had not represented himself to any security company as a representative of Cumberland Hospital during those enquiries. Mr Hill then called Mr Flight and advised him that there were vacancies with all three security companies he had mentioned earlier and encouraged him to apply to them for employment. 26He recalled that it was a female who answered his call at the E Group. He had dialled the general line because there was no reason to ring the roster section. He did not recall giving her his name but agreed that he may have done so. He said that if he did, he did not do so in circumstances where he thought the person he was speaking to would know that he was a Security Officer at Cumberland Hospital. He said that, to the best of his recollection, he did not mention Mr Flight's name and did not speak to Mr Nohra about any vacancies at the E-Group on that or any other occasion. 27Mr Hill recalled that Mr Flight advised him that when he contacted ISS he was advised that there were no vacancies and that he had been interviewed by Wilsons but was unsuccessful. Mr Hill was aware that Mr Flight was interviewed by the E Group in December 2009 and was successful in obtaining employment. 28Mr Charlie Nohra, NSW Roster Coordinator with the E Group, gave evidence that his Employer provides casual security guards on an as needs basis, to various NSW Health Department campuses, including Cumberland Hospital. 29The request for casual staff would come from a Manager or senior Security Officer from Cumberland Hospital via a telephone request at first instance, followed by written confirmation as required by the E Group received by facsimile or email. The request is then confirmed and an allocation made. 30Mr Nohra said he became acquainted with Mr Hill on a professional basis, albeit over the telephone, for approximately two years prior to the incident. He estimated that Mr Hill, as senior security guard, would call, on average, two or three times a month to request additional security guards for Cumberland Hospital. On other occasions, the request would be received from Mr Tony Morgan, Security Supervisor, at the Hospital. 31Mr Nohra recalled that, during approximately December 2009, he received a telephone call from Mr Hill who said to him words to the effect, "Hi, it's Colin from Cumberland Hospital... I have a friend, James Flight, who I would like to put forward to E Group. He is looking for work. He is a really good security guard and he has a security licence. I'd give him a good reference and I would like to work with him." He had replied with words to the effect, "That's fine, send him in. The HR Department will put him through the interview process." Mr Hill denied making any request to the E Group to roster Mr Flight at Cumberland Hospital. During the recorded investigation on 17 June 2010, Mr Hills said Mr Flight relied on help from other people because he suffered from post-managed stress depression. He said Mr Flight asked for assistance and so he had made three telephone calls from his home basically identifying himself as "Colin Hill" and asking "do you have any vacancies?" When two of the three companies indicated that they did, including the E Group, he continued, "Well look, basically I have a friend who's just starting out in the field, being a P-Plate it's very hard to get started. Could I get him ...to send in ..." Mr Hill told the investigation panel that Mr Flight applied to Wilsons and missed out on getting employment. He then applied to the E Group and it was several weeks before he actually got an interview. 32Mr Nohra said he passed on Mr Flight's name to the Human Resources Department and Mr Flight was employed by the E Group on a casual basis from 29 December 2009. 33Mr Flight said he rang all three companies. He denied that it was Mr Nohra who had passed his name to the HR Department. He insisted that he had personally telephoned Mr Billy Opatia, E Group Manager, who invited him to attend an interview a few days later and employed him. Mr Flight said that about 5 minutes into the interview, Mr Opatia said to him words to the effect, "You tick all my boxes it's good to have someone that speaks and understands English. You also present well." He contended that Mr Opatia informed him that he would do well at E Group and offered him a casual position with that company. 34Mr Flight denied any knowledge of Mr Hill making any approaches to the E Group on his behalf. He pointed out that Mr Hill was quite vocal about his objections to "P Plate Guards" being rostered to work in dangerous guarding positions because he believed that they, at times, posed a danger to fellow guards. Mr Flight said he was rostered on with Mr Hill on very few occasions. Mr Hill undertook the 6 am - 6 pm shifts and he undertook the 6 pm - 6 am shifts. 35Nevertheless, despite being on the books, Mr Flight said he did not receive any shifts and called Mr Opatia towards the end of December 2009 to inquire why. His call was transferred to Mr Nohra who informed him that he was in charge of rostering and such calls should be directed to him in future. 36Mr Flight said that it was at that first contact with Mr Nohra that he mentioned that his friend, Colin Hill, worked at Cumberland Hospital and asked if he could obtain shifts there. When asked if he could work over the Christmas break, he advised that he would be available from 29 December as he was going to be in Queensland until then. 37He worked his first shift on 29 December 2009 at Cumberland Hospital Psychiatric Ward. Thereafter, he would ring Mr Nohra, or occasionally Mr Nohra would ring him at his home, regarding allocation of shifts. 38Mr Flight said Mr Hill took him under his wing on that first shift, inducted him and then stayed back at the end of his shift to go through the procedures of the Psychiatric Ward with him. Mr Flight provided the Commission with a description of the duties he undertook while guarding in that ward. 39Mr Morgan explained that an Agency Security Officer, on their first shift, would be rostered to work with a Cumberland Hospital Security Officer who would take them through an induction at the commencement of the shift. In addition, during the relevant period, any security officer sent to work on Yaralla Ward for the first time, would be inducted by the nursing staff in that Ward. The induction consisted of an explanation of the officer's duties and the operation of that Ward. A copy of the standard induction check list was tendered. It was pointed out that Mr Flight was rostered to work at Yaralla Ward on his first shift on 29 December 2009. 40Mr Nohra agreed that, at commencement of his employment, Mr Flight expressed an interest in working at Cumberland Hospital and, based on Mr Hills' recommendation, he had rostered Mr Flight to work several shifts at that Hospital during his first week of employment. 41Mr Nohra also recalled that, in or about January 2010, he received another very brief telephone call from Mr Hill during which the latter said to him words to the effect: "Hi, it's Colin from Cumberland Hospital. Listen, I really enjoy working with James Flight. Please give him as many shifts as possible at Cumberland Hospital." He recalled that he had responded with words to the effect: "Yeah, sure mate. I'll do what I can." 42Mr Nohra insisted that Mr Hill had identified himself during both telephone conversations. Mr Nohra stated that he considered that it would be good customer service to meet Mr Hill's "demands" as those demands came from a "senior security employee of our client SWAHS" and so he responded by giving Mr Flight as many shifts at Cumberland Hospital as he was able during the period January - March 2010. Mr Nohra agreed that Mr Flight had requested shifts at Cumberland Hospital but insisted that it was "Mr Hill's request that Mr Flight be given shifts at Cumberland Hospital was the reason why E Group continued to send Mr Flight to that campus on a regular basis". 43Mr Flight admitted that he would often mention that Mr Hill was his friend, that he enjoyed working with him at Cumberland Hospital in an effort to persuade Mr Nohra to roster him at Cumberland Hospital. He also admitted that he requested to be assigned as many shifts as were available at Cumberland Hospital. He said that he started getting a lot of 12 hour night shifts in January 2010 and, at one stage, was doing straight 12 hour night shifts continuous at Cumberland Hospital resulting in Mr Nohra saying to him words to the effect, "Thanks mate you are a legend you have saved my ass" because many staff were on holidays over the Christmas break and he was having problems covering the shifts. Mr Nohra denied making such a comment pointing out that, typically, there is a slow down in the industry from New Year's Eve onwards and 2010 was no exception. They had security guards "jumping up and down" asking for shifts and the E Group did not have enough hours available to satisfy them all. For that reason, he would not have had any trouble filling the available shifts at Cumberland Hospital during the relevant period. 44Mr Hill confirmed that Mr Flight was given the majority of E Group's shifts at Cumberland Hospital. He believed that it was because Mr Flight had requested those shifts, particularly as that Hospital was one of the few hospitals that accepted "P Plate" guards. He contended that he only worked on two or three shifts with Mr Flight. 45Mr Nohra denied that Mr Flight was rostered on shifts at Cumberland because it was one of the few hospitals which accepted "P Plate" guards. He pointed out that Mr Flight was a casual and the E Group was under no obligation to roster him at Cumberland Hospital or anywhere else. In addition, Mr Nohra denied that Mr Hill ever made a request to him that the E Group not roster a "P Plate" guard at Cumberland Hospital. 46Mr Hill stated that he complained to his union, the Health Services Union, Mr Morgan, the OH & S Officer, Human Resources, the head nurse, and his local Member of Parliament about working with "P Plate" guards. 47Mr Martinac, Security Officer, was partnered to work with Mr Flight on approximately three or four occasions on day or night shift at Cumberland Hospital. He recalled that Mr Flight worked a number of shifts on his own in the Yaralla Ward. He was aware that Mr Flight was a friend of Mr Hill but was not concerned at the number of shifts he seemed to be getting, thinking that he was probably the only security officer available at the time. 48Mr Anthony Morgan, Security Supervisor, Cumberland Hospital, said that Mr Flight first came to his attention when he began to receive questions from several Security Officers as to why a particular E Group guard was getting most of the shifts in Yaralla and why this E Group guard was given preference over other E Group guards. At first, he had not paid too much attention to the comments because it was a matter for the E Group. Nevertheless, the comments continued and approximately two weeks' later, he heard that Mr Flight was a friend of Mr Hill and that the latter may have assisted Mr Flight to obtain a job with the E Group. 49Mr Flight stated that, on or about 5 February 2010, he introduced himself to Mr Tony Morgan upon the latter's resumption from holidays. He recalled that Mr Morgan said to him words to the effect, "So you're James Flight, the one who has been getting all the shifts" to which he had replied, "Yes, I enjoy working here". Mr Morgan denied making such a comment. He recalled saying words to the effect, "So, you're James Flight. I hear you've been working down at Yaralla" and that had prompted Mr Flight to reply with words to the effect, "Yes, I enjoy working here". Mr Flight said that the shifts dried up in February 2010 and inquiries made to Mr Nohra revealed that there were no shifts. Thereafter, until the shifts ceased in April 2010, he was rostered for a few more shifts in Cumberland Hospital and other hospitals. He noted that there were other "P Plate" security guards at Blacktown Hospital. He has since become aware that the law requires P Plate Guards are to work under the supervision of a senior guard. 50In approximately late March/early April, Mr Morgan said he rang Mr Nohra to clarify with him the correct process for rostering security staff and to inform him that he should not be influenced by the Respondent's staff as to who was to be rostered. To that end, he informed Mr Nohra of the comments he had heard and stressed that it was entirely up to E Group's discretion which Safety Officers were rostered. He pointed out that Mr Hill may only make a direct request to the E Group for security staff in urgent circumstances. 51Mr Nohra recalled that, in or about April 2010, he received a telephone call from Mr Morgan requesting that Mr Flight not be given as many shifts as he had been given and to share the workload with other casuals. Mr Nohra said he found it odd that Mr Morgan would request him "to share the work load" as, by April 2010, Mr Flight was hardly being rostered for any shifts at Cumberland. 52Mr Morgan said that, on or about 13 April 2010, he and the Corporate Services Facility Manager (Cumberland and Auburn Hospitals), Mr Matthew Noone, met with representatives of the E Group, Troy Smith and Brad Porter, with Ms Sandra Abreu (administrative assistant) as note taker. During the course of that meeting, Mr Smith asked if Cumberland Hospital had any preferences for particular security officers. Mr Morgan said he reiterated what he had said to Mr Nohra. Mr Smith said that Mr Nohra had recorded that conversation and he was merely asking to ensure that the advice was still current. A copy of the Minutes of that meeting was tendered in the proceedings. Over the next few days, Mr Morgan, as directed by Mr Noone, communicated with all security officers during handover meetings, the correct procedure for requesting additional security staff and the prohibition in the Code of Conduct, of obtaining favours for themselves or friends. 53On or about 14 or 15 April 2010, Mr Morgan received a telephone call from Mr Hill querying what he knew about Mr Flight being suspended for sleeping whilst on guard duty at Yaralla Ward; the meeting between the E Group and SWAHS Officers on 13 April; and querying why the E Group sent one of its night supervisors to do a spot check? Mr Morgan said he had refused to discuss the matter on the basis that Mr Flight was an employee of the E Group and it was up to that management to deal with their own staff. 54Mr Nohra said that, on 29 April 2010, he received an email from Mr Troy Smith of the E Group setting out a series of questions posed by Mr Matthew Noone, Corporate Services Facility Manager, Auburn & Cumberland Hospitals, SWAHS. He had responded by email on 30 April 2010. On 21 May 2010, he received a further email with further questions from Mr Noone. He responded by email on 31 May 2010. 55Mr Morgan said that, on 1 June 2010, he received correspondence from Mr Adrian Bright, Director Corporate Services inviting him to attend an interview with him and Ms Finocchiaro, Human Resources Manager, on 4 June 2010. Mr Morgan was asked to attend the interview prepared to respond to the questions set out in the letter as a result of an anonymous complaint received about Mr Hill allegedly securing employment and shifts for a friend. He said he prepared a written response which he provided at the meeting, in addition to responding to specific questions. Mr Hill drew attention to the language used in the complaint letter. He pointed out that it was obviously not the type of language used by Security Officers he had come across at the Cumberland Hospital. In addition, he could not understand how a SWAHS Officer would know about what conversations he was alleged to have had with the E Group. 56On 9 June 2010, Mr Hill received a letter from an Investigator, Mr Adrian Bright, Director of Corporate Services, informing that that an investigation had been initiated into the following allegations against him: 56.1That he inappropriately rang the SWAHS contractor, E Group, during December 2009 requesting that a friend (James Flight) be engaged by E Group; 56.2That he inappropriately rang the SWAHS security contractor, E Group, during January 2010 requesting that his friend, now engaged by E Group, be rostered for any shifts that became available at Cumberland Hospital; 56.3That he gave E Group, during these phone calls, 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 56.4That he inappropriately rang the SWAHS security contractor, E Group, on the 14th April 2010 to make enquiries as to why his friend was terminated as an E Group contractor. 57On 17 June 2010, Mr Morgan received an email from Mr Bright asking another four questions arising out of the interview with Mr Hill. Mr Noone, who was copied in on the email, directed Mr Morgan to respond by email. Mr Morgan responded that Mr Flight had worked 38 x 12 hour shifts at Cumberland between the period 29 December 2009 and 20 April 2010. Mr Morgan also responded that, whilst he agreed that Mr Hill had expressed his objection to working with "P Plate" guards, and while he did work some ordinary security shifts with Mr Flight, he was aware that the "P Plate" guard was primarily rostered to work alone performing the extra security shift at Yaralla Unit. 58In response to a further request from the investigators, Mr Morgan prepared a memorandum on 2 July 2010 setting out a detailed list of the rosters performed by Mr Flight. In summary, twelve of the shifts performed by Mr Flight occurred at the same time as Mr Hill was rostered for duty. Of that 12, only five of those shifts involved both men working together. Mr Morgan stated that Mr Flight undertook 36 shifts in total: * 29 of those shifts were night shift and the remaining seven shifts were day shifts; * He was on duty at the same time and worked directly with Mr Hill on 5 shifts; and * He was on duty at the same time but did not work directly with Mr Hill on 7 shifts. 59The Investigation Panel found that, in relation to the allegation that Mr Hill rang and requested that Mr Flight be engaged by the E Group, his actions were ill-informed or misguided rather than corrupt. The Panel recommended that Mr Hill be counselled and issued with a formal warning in that regard. 60In relation to the allegation that Mr Hill rang the E Group and asked that Mr Flight be rostered for all available shifts at Cumberland, the Investigation Panel found the allegation was substantiated. The Panel determined that not only had Mr Hill breached the Code, but he had also engaged in corrupt conduct. The Panel recommended that Mr Hill's employment be terminated on the basis of corrupt conduct as his actions derived a real financial benefit for his friend. Allegation (b): That the Applicant left work early without authority Allegation (c): That the Applicant had inappropriately pressured fellow officers 61Throughout 2010, Cumberland Hospital was subjected to ongoing theft of copper piping from the exterior of buildings, particularly on the Eastern side of the Hospital (separated from the Western side by the Parramatta River). The Eastern side houses mostly administrative staff who leave work at the end of ordinary business hours and, for that reason, is significantly more exposed at night time than the Western side of the campus which houses clinical buildings that are staffed 24 hours per day. 62Mr Howard stated that the most recent theft occurred on the morning of 22 June 2010 when a large amount of copper piping was stolen. He and Mr Bright had a discussion during which it was decided to address the problem by increasing the security presence at the Eastern Campus at night time. It was decided that an extraordinary shift would be run commencing on 23 June 2010 to control that risk. Mr Morgan added that the extraordinary shift would initially run for a period of one week although it was envisaged that it may continue into the foreseeable future. 63A Security Alert was prepared and circulated to all Security Officers, including Mr Hill, on 23 June 2010. The Alert advised that the Hospital had experienced several robberies (64 copper down pipes and guttering) and episodes of vandalism in the Eastern Campus. The Alert advised of the decision to roster a week of dedicated security shifts and the responsibility of the Security Officers will include: * Monitoring all movements in and out of the Cumberland Hospital - Eastern Campus between 8 pm and 6 am * Recording and logging details of suspicious vehicles entering Cumberland Hospital. 64Mr Morgan met with Mr Chris Howard, Graduate Health Management Program Trainee, to give effect to that decision. Having studied the roster, he determined that Mr Hill and Mr Robert Parker were the only Security Officers available to perform the shift that evening bearing in mind the overtime restriction agreed with the HSU. Mr Howard said he wanted to ensure that Hill and Parker were instructed abut the requirements of the shift. Mr Morgan said he rang both Security Officers on their mobile telephones and spoke to them over speaker phone. He said that he said to each of them words to the effect: "The shift is from 8.00 pm until 6.00 am. The purpose is to monitor and prevent the theft of copper piping on the Eastern side of the campus. It's a very important job. Tonight is the first of these patrols, so ring me if there are any problems." Mr Howard said the call to Mr Parker was made at 3.10 pm immediately after the call to Mr Hill. Mr Morgan advised Mr Parker that he was on speaker phone and that Mr Howard was in attendance. Once they had exchanged greetings, Mr Howard said it was he who instructed as follows: "Bob, we're putting on an additional shift, seven nights per week. It will be filled by our staff first and we'll fill the gaps with E Group staff. .. You and Colin are the first cabs off the rank. This shift could become a permanent thing, so it is important that it is done well...... Get the other Security Officers to cover you when you take your breaks. You'll need to be a bit flexible and work it out between yourselves." 65Mr Morgan said he prepared a new log book specifically for that shift. He then telephoned Mr Robert Swami, the Security Officer rostered at the time, asked him to prepare some notes in accordance with some directions he gave and place them at the front of that log book. 66Mr Morgan advised the Commission that every person employed to work at Cumberland Hospital, including the Security Officers, is provided with a General (G) Key in order to access staff areas, including toilet facilities and clinical wards (eg Yaralla Unit). In addition to that, there are three Grand Master (GM) Keys which open almost every door on the campus, including high level security areas such as the Human Resources building. One of those keys is held by Mr Morgan. The other two keys are assigned to the Security Officers performing ordinary duties on both day and night shifts in case of emergencies arising. 67Mr Morgan recalled that Mr Hill telephoned him that afternoon at 3.30 pm requesting a copy of the Grand Master (GM) Key for that special patrol. He said that he did not have an answer for Mr Hill at that stage and responded with words to the effect that whatever he needed for the shift will be provided to him in the office when he turned up for the shift. Mr Morgan said he considered that they did not require a GM Key as they were only required to keep an eye on the copper downpipes on the exterior of the buildings and were not required to access the buildings on that side of the Campus. Nevertheless he conferred with Mr Howard to determine if that view was correct. Mr Howard agreed with him. Mr Morgan pointed out that, as it turned out, their view was validated by the fact that no other Security Officers who subsequently performed that special patrol required use of a GM Key. 68When Mr Hill commenced the rostered patrol with Mr Parker at 8 pm on 23 June 2010, he said that he noticed that Mr Parker was quite ill and seemed to be suffering from flu-like symptoms. Nevertheless, Mr Parker assured him that he was able to undertake his shift. While they were collecting their torches, keys and other equipment to take out to their patrol car, they were approached by Mehmet Usel (Security One on that night shift) and Ron Martinac (Security Two) and instructed to stay on the other side of the Hospital patrolling around building 112. 69Mr Hill said that Mr Usel came out to the car and handed him a bunch of keys to access the [internal] toilets in Building 112: "...I had only ever used internal toilets at building 112. The normal practice for security guards at Cumberland Hospital in relation to building 112 was to enter the front door, activate the alarm, lock the door and leave, driving by the building while on patrol. Of all the buildings we patrolled, 112 was the building in which we used the toilet facilities, as we were required to enter this building to activate the alarm. ..." Mr Hill said that did not become aware of the existence of external toilets at Building 112 until he was shown photographs of them at the investigation on 22 July 2010. Apparently, neither did Mr Parker. He assumed that none of the Security Officers on duty on 23 June 2010 were aware of the existence of those external toilets. Mr Usel agreed that he had provided them with the keys to the patrol car but could not recall giving them any other keys. He pointed out that Mr Hill could have accessed the external toilets in Building 112 using a G key, a key already in the possession of Mr Parker. 70Mr Hill stated that, at approximately 10 pm, he required the use of the toilet facilities. He discovered that they had not provided with a copy of the key to the front door of Building 112 in order to access the internal toilet facilities. He said he telephoned Mr Usel and requested him to attend to open Building 112. Mr Usel undertook to attend "shortly" despite the fact that he was aware that Mr Hill could access the external toilets. 71When Mr Usel had not attended by 10.30 pm, Mr Hill said he rang him again. He said Mr Usel had responded that he could not attend immediately as he was on "standby" but undertook to attend shortly. It meant that he was standing by while a doctor conducted a pre-admission interview of a patient in the admissions building in order to render assistance to the doctor if required. Mr Hill was aware that it meant that Usel and Martinac may have to escort that patient to one of the wards if the doctor admitted him/her. 72Mr Hill said he made a third request to Mr Usel at approximately 10.45 pm. On that occasion, Mr Usel advised that they were at Yaralla Ward assisting nursing staff with a patient. Mr Hill and Mr Usel were agreed that the latter said that if Mr Hill wanted to use the inside toilet then he would have to wait until Mr Usel finished at Yaralla Unit then he would drive over to open the door to Building 112 for Mr Hill. Mr Usel said he pointed out that he was not going to provide him with the GM key. He felt that Mr Hill, who held the same rank, should have appreciated the fact that he was required to maintain possession and responsibility for the GM key. 73Mr Hill said he made a fourth call to Mr Usel at 10.55 pm at which time Mr Usel advised that they were still at Yaralla Ward. In his first statement, Mr Hill said that Mr Usel suggested that he and Mr Parker drive over there to see them. In his second statement, Mr Hill said when he heard nothing further from Mr Usel, he and Bob Parker drove over to Yaralla Ward and parked outside. 74Mr Hill said he rang Mr Usel and asked him to meet them at the car. He asked Mr Usel for the GM key undertaking to return it immediately. Mr Usel refused. In the absence of any reason for such refusal, Mr Hill was surprised because he was assigned that key whenever he was rostered as Security One or Two. 75There are only two copies of the Grand Master (GM) key and, during that shift, they were assigned to Messrs. Usel and Martinac because they needed them to undertake their duties. 76Mr Hill said he rang Mr Martinac and asked to borrow his GM key. In his second statement, Mr Hill said he made the call while they were driving towards the Security Office to use the toilets there. He contended that Mr Martinac yelled at him for asking him knowing that Mr Usel had already rejected the same request. He said he had to hold the telephone away from his ear because Mr Martinac's voice was so loud and he quickly terminated the call. 77Mr Usel stated that he did not overhear Mr Martinac yell or abuse Mr Parker at any time during that shift. Mr Martinac confirmed that he had received a request to provide Mr Hill with his GM Key. He said that he refused because he had signed for the keys and was responsible for them. He stated that he knew that Mr Hill did not need the keys as there were toilets on the Eastern campus that could be accessed with the G Key. He said he overheard Mr Hill ring Mr Usel and make similar requests to him which were declined. He told Mr Usel that it was not appropriate to give Mr Hill the keys. He said that there were another three or four further discussions with Mr Hill about his refusal to give him the GM key and the discussions between them became quite heated to the point where they swore at one another. 78Mr Usel said Mr Martinac advised him that he had rejected Messrs Hill and Parkers' request to borrow his GM key to access the toilets inside building 112. He agreed with Mr Martinac that it would not be appropriate to give either of them a GM Key. He asked Mr Martinac to refer Mr Hill to him if he had a problem with that response. Mr Morgan confirmed that there was no need for either Security Officer to use the interior toilets in building 112 as clean toilet facilities were available on both sides of the exterior of the building and which may be accessed with the G Key that both Officers would certainly have had in their possession. Mr Morgan pointed out that those external toilets were cleaned daily and were accessed by doctors and nurses. Photographs of the toilets were tendered in the proceedings. He could certainly appreciate why Usel and Martinac did not lend their GM keys to Mr Hill. Those keys were assigned to them for the entire shift and they were responsible for them and were required to use them in the performance of their duties throughout the shift. 79Messrs Hill and Parker then drove over to the security office and used the toilet facilities there before resuming their duties. Mr Hill stated that he was not aware of the existence of external toilets at Building 112 until he was shown the photographs during the investigation on 22 July 2010. Mr Morgan expressed concern at this as he expected Mr Hill and Mr Parker to be aware of the layout of the buildings on the campus; to have physically opened the doors to the external toilets at building 112 at least once during the course of their duties; and to be aware of the location of other toilets on the Eastern side of the campus that could be accessed with a G Key (including the toilets at the Phoenix Cafe accessed by patients and staff and the Groundskeepers' toilet block). 80Mr Martinac stated that at approximately 3 pm, Hill and Parker returned to the Security Office for their break. He said that, by that time, he had had enough of them and so he went out onto the balcony to avoid them. 81Mr Hill said he noted Mr Parker's illness worsening dramatically as the shift progressed. As a result of sitting in car with Mr Parker for over six hours, he said he also began to develop flu like symptoms - headache, runny nose and a cough. 82Mr Martinac stated that at approximately 5.35 am Parker and Hill returned to the Security Office apparently to end their shift. He said that he was so fed up with them that, once again, he had walked out onto the balcony until they left. At about 5.40 am, Mr Morgan approached and asked him if he had seen Hill and Parker and he replied that "they've gone home" or words to that effect. 83Mr Hill said that, at approximately 5.35 am, Mr Parker announced that he could not continue his shift. Mr Hill said he felt the same way and agreed with Mr Parker. They drove to the security office where Mr Hill said he informed Mr Usel that they were both feeling ill and were going home. He said they both surrendered their keys and torches. Mr Hill insisted that they left work early on that shift due to genuine medical concerns. In his first statement, Mr Hill said that Mr Usel undertook to cover the last half hour of their shift and they left the site at approximately 5.40 am. In his second statement, Mr Hill said Mr Usel specifically said that there were 20 minutes left of the patrol and that he would cover it. He said he glanced at his watch and, while he could not recall exactly what time it was, he recalled that he had not noted any inconsistency between the estimate made by Mr Usel and the time on his watch. On that basis, the 30 minutes he stated in his affidavit of 4 January 2011 was incorrect. Mr Hill said that the distance between the security office and the carpark was only a few seconds walk. He recalled that he looked at his watch when he got to his car and noted that it was 5.40 am. Mr Usel stated that when Messrs Hill and Parker returned to the office, Mr Hill announced, "I am sick of it - I am sick, we are leaving". He insisted that neither Mr Hill nor Mr Parker asked him to cover their last patrol nor did he volunteer to do that. He said that when Messrs. Hill and Parker advised that they were leaving, he was busy writing his report and preparing for the handover to the day shift at 6 am and therefore would not have been able to assist them even if he had wanted to. He agreed that he had pointed his hand towards the exit and said, "You go, you go" but that should not be taken to imply that he agreed to cover the remainder of their shift. He insisted that he did not have a conversation with Mr Parker. 84Mr Usel denied that he, as Security One, had any obligation to log the early departure of Hill and Parker. He had not mentioned to Mr Morgan about them leaving early due to sickness until 25 June 2010 pointing out that it was not his responsibility to do so. He pointed out that Hill and Parker had their own log book for the Eastern Campus patrol and should have logged their own departure in that log book. Mr Morgan explained that the terms "Security One" and "Security Two" were used primarily for the purpose of conducting radio checks and for the sake of convenience. They did not indicate seniority or additional responsibility and therefore it was not Mr Usel's responsibility to note Mr Hill's and Mr Parker's departure in the log book. In addition, Usel and Parker had filled in their log for the shift and should have noted as the last entry the fact that they were leaving the shift early. 85Mr Morgan said he arrived at work earlier than his scheduled time of 7 am in order to obtain feedback from Hill and Parker on that first special patrol in case he needed to make any changes/amendments to his instructions for that night's shift. He said he arrived at the Campus at approximately 5.30 am. As he drove past, he noted that Messrs Usel and Martinac were in the Security Office as was Sam Tonna, a Security Officer scheduled to start the day shift at 6 am. He said he continued to drive in a figure 8 around the Eastern Campus but could not see Hill and Parker. (He timed a drive around the same route prior to making his second statement as taking 8 minutes contrary to Mr Hill's estimation of 15 minutes.) He drove back to the Security Office and, as he walked past Usel and Martinac to go into the office, he asked where Hill and Parker were. He formed the view from their response that they did not wish to be caught in the issue. He persisted with his questioning advising them that they had no choice but to provide him with answers. He was advised that they had "just gone home". He insisted that neither of them had mentioned sickness as the reason for Hill and Parker leaving the site early. He said that he instructed Usel and Martinac to write a report on the incident. 86Mr Morgan said he walked over to the Admissions Office and asked the nurse if she had seen either Hill or Parker. She replied that she had not. He noted that it was 5.40 am and decided to call them. In his first statement, Mr Morgan stated that he rang Mr Parker at 5.48 am but did not receive any coherent response from him. He appeared to agree that he left the site at or before 5.30 am. The call lasted no longer than two minutes. In his second statement, Mr Morgan advised that he was with Mr Howard and on speaker phone when he spoke to Mr Parker and both men had exchanged greetings. He pointed out that Mr Parker had not made any mention of feeling ill most of the day. Mr Morgan said he rang Mr Hill at 5.50 am but Mr Hill did not take the call. 87Mr Morgan said he reported the incident to Mr Matthew Noone, Corporate Services Facility Manager, Auburn & Cumberland Hospitals. 88Later that day, Mr Hill received correspondence from Mr Matthew Noone (Corporate Services Facility Manager) seeking an explanation as to why he and Mr Parker had not completed their shift. 89Both Hill and Parker reported for their 6 am shift on 25 June 2010. Despite the fact that he saw both of them arrive for their shift, Mr Morgan said that neither of them had advised him that they were sick the day before. Mr Morgan said he was surprised when Mr Usel came up to him and out of the blue and without any prompting explained that "Bob and Colin were sick". Mr Morgan pointed out that it was the first time he was advised that they left their shift early on 24 June 2010 due to illness. 90On 25 June 2010, Mr Hill provided a written explanation to Mr Noone as to why he left his shift early on 24 June. Mr Hill explained that: * he left the site at 5.40 am and went home sick; * he forgot to sign on and off that shift and undertook that it would not recur in the future; * Mr Parker had been sick with the flu and, after being cooped up with him in the confined space of a small car, he too was not feeling well and both could not work any longer; * Mr Usel had undertaken to complete the remaining 20 minutes of security patrols of zones 3 and 4; and * after signing on for their shift on 25 June, both he and Mr Parker approached Mr Usel and asked if he had informed Mr Morgan that the reason they had gone home early the previous shift was due to illness. He had replied that he had done so the previous day and again at 6.05 that morning. 91In his written report of 25 June 2010, Mr Parker confirmed what Mr Hill had said adding that: * he advised Mr Usel that they had not taken the second of the two crib breaks they were allowed and would be leaving early; and * he had signed both on and off at the beginning of the shift on 23 June expecting that he would complete the shift. 92Mr Morgan stated that he had not asked Mr Parker for a report on the incident. He recalled that at approximately 7.30 am on 11 February 2011 Mr Parker came into his office and had a cup of coffee with him. In conversation, Mr Morgan mentioned that he was aware that Mr Parker had provided a statement. They discussed the characterisation of Mr Parker's work colleagues as contained in that report. They agreed to disagree on that issue and Mr Morgan commented that they should not be talking about it in any event. They talked about unrelated matters for about 5 minutes before Mr Parker left his office. Mr Morgan said that he was asked by Mr Parker, on 18 February 2011, to assist him in the preparation of a document relating to union business. He assisted Mr Parker and their conversation was entirely civil. Mr Morgan insisted that he has not approached Mr Parker about these proceedings. He insisted that Mr Parker's concerns were baseless in relation to repercussions for his employment. 93Mr Howard said that, at the request of Mr Morgan, he had assisted Mr Martinac but only in relation to the preparation of a resume and a template covering letter. 94Mr Hill said he could not recall whether they had taken the 3 am crib break. He pointed out that if they did, then Mr Martinac would have been required to cover the eastern side of the campus while they had their break. He would be in breach of his duty if he simply stayed in the office. 95In relation to allegation (b), the Panel found that: (i)the allegation that Mr Hill left the site early was substantiated. The panel held that the officers departed the campus at least 30 minutes prior to the scheduled conclusion of the overtime shift thereby leaving the campus exposed to the security risk that the "special" overtime shift was specifically created to address. The Panel held that it was a breach of the sections 1.1 and 1.2 of the NSW Health Code of Conduct: and recommended that Mr Hill be formally counselled in that regard. (ii)the allegation that Mr Hill lied about the time of leaving the campus was substantiated. The Panel noted the evidence given by Hill and Parker and determined that they had consulted one another in the preparation of their statements. The Panel held that it was a breach of the sections 1.1 and 1.2 of the NSW Health Code of Conduct: and recommended that Mr Hill be formally counselled in that regard. (iii)the allegation that Mr Hill lied about the reason for leaving the campus early cannot be safely substantiated. The Panel refrained from making any recommendations specific to Mr Hill in that regard. (iv)the allegation that Mr Hill failed to ensure that the reason for leaving the campus early was clear and communicated appropriately to management was substantiated. Nevertheless, the Panel declined to make any recommendations in that regard as clear written or clear and understood verbal instructions were not in place in regard to the reporting arrangements for the shift. (v)the allegation that Mr Hill lied about Mr Usel undertaking to complete the remaining security patrols of zones 3 and 4 at his request and on his behalf was substantiated. The Panel held that it was a breach of sections 1.1, 1.2. 1.6 and 8.1 of the Code and recommended that a formal warning be issued to Mr Hill. (vi)the allegation that Mr Hill failed to make adequate arrangements to ensure that his duties were covered was substantiated. The Panel held that it was a breach of sections 1.1, 1.2, 1.6 and 8.1 of the Code and recommended that Mr Hill be formally counselled in that regard. (vii)the allegation that Mr Hill failed to sign on and off in the attendance book on 23 and 24 June 2010 was substantiated. The Panel held that it was a breach of sections 1.1 and 1.2 of the Code and recommended that Mr Hill be formally counselled in that regard. 96In relation to allegation (c), that Mr Hill improperly pressured fellow officers, the Panel found that the allegation was substantiated. The Panel held that it was a breach of sections 1.1, 1.2, 2.1, and 7.1 of the Code and recommended that Mr Hill be issued with a formal warning in that regard. Allegation (d): That the Applicant had inappropriately attempted to contact and question other Security Officers contrary to directions. 97In his first statement, Mr Hill stated that he had made repeated attempts to contact Mr Usel but was unable to talk to him about union issues arising from the latter's resignation, on or about 7 July 2010, from his position as vice-president of the union. In his second statement, Mr Hill said that just prior to 8 July 2010, he had attended a meeting of the Union Executive during which Mr Usel tendered his resignation as Vice President as he had a falling out with the Union Secretary, Mr Parker. He said he was ringing Mr Usel to convince him to reconsider his resignation as he needed the union bearing in mind the string of disciplinary action taken against him by the Respondent. Mr Hill said that when he rang Mr Usel at home as requested, Mr Usel had said words to the effect: "Colin, we are friends. You are welcome here at any time. Your wife is welcome here. If you want to talk to me, ring me and talk at home, not at work. I don't trust those bastards." He said that they then proceeded to discuss union issues. 98Mr Usel agreed that Mr Hill had attempted to contact him on three occasions on 8 July 2010 but he did not take his calls. In addition, Mr Hill had left him a text message asking for a return call from him. Mr Usel advised that he had tendered a written resignation from his position with the union to Adam Hall, the union organiser on 7 July 2010. He denied the contention by Mr Parker that he had thrown his written resignation at him during a union meeting on 7 June 2010 saying words to the effect, "I resign you should have done more to help me". He pointed out that there were no outstanding work related issues to discuss with Mr Hill. The last time they had discussed related issues was at least 4-5 months earlier and therefore were irrelevant to his resignation. There was also no reason to discuss his resignation with Mr Hill as the latter was not a union official. Mr Usel agreed that, on an earlier occasion, "in an entirely unrelated context", he had said to Mr Hill words to the effect that they were friends and both he and Mrs Hill were welcome at his home. He maintained that he never had more than a working relationship with Mr Parker. 99Mr Martinac said he received a call at home from Mr Hill on 7 July 2010. His wife advised Mr Hill that he had already gone to bed. He contended that Mr Hill telephoned again later that evening. Once again his wife told Mr Hill that he had already gone to bed. Mr Martinac stated that he was having lunch at the workers club with a mate when he received another call from Mr Hill on 8 July 2010. When he answered the call, Mr Hill questioned him about the interview the previous day and specifically about his request for the GM key When he answered in the affirmative, Mr Hill swore at him. Mr Hill confirmed that he rang Mr Martinac a number of times in order to discuss the return of the latter's hedge clippers which they were disputing over. He contended that they had a falling out after the events of 23/24 June but that was nothing new because they tended to fall out with each other on a regular basis and make up again. He was ringing to invite him to go over and pick them up from his home but he was not answering his phone and hence the text message he sent. 100Mr Morgan stated that, at approximately 11.10 am on 8 July 2010, he received a telephone call from Mr Martinac who appeared to be in a distressed state. Mr Martinac, who had been interviewed by the investigation panel the previous day, asked to see him indicating that Mr Hill had been calling him and inquiring as to what he told the investigation panel. 101Mr Howard, Manual Handling Coordinator, stated that he first became aware that Mr Hill was contacting Martinac and Usel about the investigation on 8 July 2010 when Mr Morgan went in to see him in his office and said: "I've just had a phone call from Ron to say that he is being bullied and harassed by Colin in relation to the investigation. He is coming in to see me." Mr Morgan asked Mr Howard to assist him to manage the situation. Mr Howard suggested that Mr Morgan see him once Mr Martinac arrived. About an hour later, Mr Usel came into Mr Howard's office and said words to the effect, "I need to speak to you, this is getting out of hand. Colin is harassing me on my phone, at work and on my mobile and at home. I am getting text messages and calls." He suggested that Mr Usel accompany him to Mr Morgan's office. As they were walking there, Mr Martinac arrived and all four had a meeting for about 10 minutes. During that meeting, Mr Martinac's phone rang and he showed Mr Howard the name of Mr Hill flashing on the screen. Martinac and Usel left Mr Morgan's office. Mr Howard warned Mr Morgan that the situation was getting serious, he needed to deal with it "by the book", remind Mr Hill that he was required to abide by the Code of Conduct and he ought to have a witness to those discussions. He offered to act as witness. Mr Howard confirmed the evidence given by Mr Morgan that the latter telephoned Mr Hill on speaker phone at 12.40 pm advising that: * he had him on speaker phone and Chris Howard was in his office with him. (Howard and Hill had exchanged greetings); * they had received complaints from Martinac and Usel; * he was already put on notice not to contact these Officers; and discussing the investigation is a breach of the Code of Conduct. Mr Morgan stated that he had advised Mr Hill that his actions may be considered to be "bullying". Mr Morgan said that Mr Hill confirmed that he had rung them, apologised and undertook that it would not happen again. That was not part of Mr Howard's evidence. Mr Hill said Mr Morgan's recollection was incorrect. He contended that Mr Morgan had not advised him that he was on speaker phone. He was told that Mr Martinac had lodged a complaint and that Mr Morgan "knew" that Mr Hill rang Mr Usel. He said he asked if Mr Morgan was telling him that he cannot contact them on non-work related issues to which Mr Morgan replied "Of course you can" and that was the extent of the conversation. Mr Morgan said that, on reflection, he recollected that Mr Hill rang him back later that afternoon when he was alone in his office. Mr Hill had asked him the question as to whether he was barred from ringing Usel and Martinac on non-work related issues. He recalled thinking that if Mr Hill wanted to contact his work mates for personal reasons, then there was nothing he could do to stop him. Mr Howard gave evidence that Mr Morgan advised him the following day about that conversation. 102Mr Morgan said he accompanied Messrs Usel and Martinac to the Human Resources Department to speak to Ms Finocchiaro about the issue. He gave evidence that on the way to that office, each of those Officers received a call from Mr Hill. Both Officers had shown him the screen on their mobile telephones and he confirmed for himself that it was indeed Mr Hill who was calling them. Mr Morgan said that Mr Martinac was quite distressed by that time and Mr Usel was also becoming quite agitated. 103Mr Hill pointed out that he has been friends with Mr Martinac for over four years and believed that they had a close relationship. They would call one another regularly "on multiple occasions on any given day". 104Mr Hill said that the reason why he attempted to contact Mr Martinac on 8 July 2010 was because they had an on-going dispute in relation to shears he had borrowed from Mr Martinac. 105The investigation panel found that allegation (d) was substantiated in that he did, contrary to directions, inappropriately contact, and continue to try to inappropriately contact, other security officers involved in the enquiry. The Panel held that it was a breach of the sections 1.1, 1.2, 1.6, 2.1 and 7.1 of the Code and recommended that Mr Hill be issued with a formal warning in that regard. Investigations 106On 27 April 2010, Mr Bright, then Area Director of Corporate Services, received a typed letter of complaint from "Concerned security staff" although its contents appeared to be from a single individual. That complaint was expressed to have been copied to Internal Audit. The complaint read as follows: "I am writing to you in hope we can stop some of the very unethical occurrences in Cumberland security. Cumberland Hospital Security Officer Colin Hill recently took it upon himself to contact the security company we use / E Group and personally ask for his friend, an E Group employee to be given as much work as possible at Cumberland., Colin has no right to do this let alone pretend he was a Security Manager and request a particular contractor. I believe this is against the code of conduct and is very unethical. Colin is the first to be against contractors but when it is a friend of his he pretends to be a Manager and seeks a particular request. This has happened (sic) before and it is very wrong. Please investigate." 107Initial investigations (conducted by Mr Lingard, Corporate Policy Development and Redesign Officer/Area Security Coordinator) led Mr Bright to believe that there was no foundation to the allegation and he advised Mr Stephen Billingsley of the Internal Audit Department accordingly by email on the same day. Later on the same day, it came to his attention that the Manager from E Group that Mr Lingard had spoken to was not aware of all the relevant facts. Nevertheless, it appeared that Mr Noone, Corporate Services Facility Manager, Auburn and Cumberland Hospitals, had already dealt with the matter appropriately as Mr Flight was no longer receiving shifts at Cumberland Hospital. 108On 28 April 2010, Mr Troy Smith telephoned Mr Lingard to correct the advice given to Mr Lingard the previous day by the E Group. Mr Lingard reported to Mr Bright the following: "Troy [Smith] told me that a person from Cumberland Hospital Security by the name of Colin had telephoned E Group's rostering supervisor, Charlie Nohra, and said that he knew of a security officer who could work for E Group. Colin told Charlie that E Group should start this person and roster him for any shifts that become available at Cumberland Hospital. Troy said based on Colin's request, E Group employed that particular security officer and gave him all shifts at Cumberland... When he rang and made the request, Colin apparently didn't say to Charlie that he was supervisor at Cumberland, but Charlie got that impression, which is why he acted on the request. Tony Morgan [Security Supervisor, Cumberland Hospital] found out about the arrangement and told Colin it had to stop. Troy said the security officer was dismissed when found sleeping on the job." 109There were a number of email communications about the issue between members of management resulting in Mr Bright forming the view that the manner in which the matter had been handled thus far was inadequate as the E Group held Mr Hill responsible for both getting his friend a position as well as having him assigned to Cumberland for his shifts. The E Group contended that it was given the impression that a Cumberland Manager was making the request and acted to meet what they thought was their client's desire. Mr Bright proceeded to gather reports and data from the relevant persons plus all email exchanges, minutes and so on relevant to the issue. Copies of those documents were tendered in the proceedings. 110On 18 May 2010, Mr Bright contacted Ms Gina Finocchiaro, Human Resources Manager, and asked her to assist him in conducting an investigation into Mr Hill's actions. 111The investigation panel interviewed Mr Tony Morgan on 4 June 2010. Mr Bright then wrote to Mr Hill on 9 June 2010 setting out the four areas of concern identified by the investigation panel and the sections of the Code of Conduct which may have been breached if the allegations are proven. Mr Hill was invited to attend a recorded interview on 17 June 2010 and advised that he may have a support person in attendance. 112Mr Hill attended the meeting on 17 June 2010 with Mr Bob Parker as his support person. He read from a prepared statement and then responded to questions. A copy of the transcript was tendered in the proceedings. 113The investigation panel interviewed Mr Nohra on 30 June 2010. A copy of the transcript of the recorded interview was also tendered in the proceedings. 114Mr Hill attended an interview with Mr Bright, Ms Gina Finocchiaro (SWAHS Human Resources Manager) and Mr Bob Parker (HSU Site Delegate) on 17 June 2010 during which he was questioned in relation to the first allegation. Mr Hill contended that the tone of the questioning was "rather aggressive and accusatorial" and felt intimidated by the attitude of the management representatives. He said he formed the impression that a decision had already been made to dismiss him. He denied ringing Mr Nohra to propose Mr Flight as a suitable security officer or that he rang Mr Nohra to request that Mr Flight be given available shifts at Cumberland Hospital. 115Mr Nohra attended an interview with the investigator, Mr Adrian Bright, on 30 June 2010 regarding his conversations with Mr Hill. Also in attendance were Simon Smith of the E Group and Gina Finocchiaro of SWAHS. 116Mr Bright and Ms Finocchiaro considered the evidence and agreed that allegations (a) (i) and (a)(ii) had been made out and allegations (a)(iii) and (a)(iv) could not be sustained. An investigation report, dated 16 July 2010 was provided to Mr Morris for his consideration. Mr Hill said he received a copy of the first investigation report on 19 July 2010. No recommendations had been made about disciplinary action because new allegations about the conduct of Mr Hill had emerged which the Investigation Panel was required to investigate prior to any recommendations being made about disciplinary action. 117Mr Hill attended another interview by the investigation panel in relation to the additional allegations on 22 July 2010. The members of the panel were the same save for the union representative. Mr Adam Hall attended as Mr Hill's support person on that occasion. Once again, Mr Hill said he felt that his responses were ignored and that the decision to terminate his employment had already been made. 118At the request of Mr Bright, Mr Noone advised that he had made enquiries of the cleaning contractors in relation to the cleaning of the toilets and advised as follows on 3 August 2010: "Further to your request, Young Hee Riemeyer, Manager of General Services, Cumberland Hospital, advised me today that the 2 external toilets and all internal toilets in Blg 112 (Mental Health Sciences Building) are cleaned daily Monday - Friday. This cleaning frequency is documented in the work schedule, and the cleaner on the 23 June is very reliable, and Young Hee does not have records of receiving complaints about the cleanliness of the external toilets in that building..." Young Hee advised Mr Bright by email on 4 August 2010 that the schedule allocated one hour (between 8.30 am and 9.25 am) to clean the toilets in that building on weekdays. 119On 10 September 2010, Mr Hill received a letter from Mr Adrian Bright (dated 8 September 2010) detailing the findings of the investigations into each element of his conduct and the disciplinary options available under the Code of Conduct. Mr Hill said he noted that the allegations numbered thirteen although he had only been informed of seven. Mr Bright explained that there were only seven allegations. However, the allegation relating to Mr Hill leaving work early without authority had been broken up into sub-parts, each of which was discussed with Mr Hill during the interview on 22 July 2010 and evidenced by the transcript of that taped interview. 120Ms Heather Gray, Chief Executive, SWAHS, wrote to the Applicant on 22 October 2010 advising of the termination of his employment with one week's base salary paid in lieu of notice. CONSIDERATION 121The parties were agreed that the approach to be taken by the Commission in relation to conduct based dismissals is that established by the Pastrycooks line of cases (in relation to the shifting onus) and adopted by the Full Bench of the Commission in Bigg & Anor v NSW Police Service (1998) ADIR 434. In other words, if an allegation of misconduct is raised as defence or as justification for dismissal, the legal burden, in an evidentiary sense to establish that fact, shifts from the dismissed employee to the employer. 122The Respondent conceded that the Commission is obliged to conduct its own independent assessment of the evidence and not rely on the internal investigation conducted by the respondent (Graham v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023). 123During the first investigation, Mr Hill insisted that Mr Flight got the job at E Group with no assistance whatsoever from himself. During the investigation and also in his affidavit evidence, Mr Hill said he merely rang the E Group, along two other companies, in early December 2009 and enquired as to vacancies for Security Officers because Mr Flight "asked me to help him find a position in the security company". He said he made the calls from home and identified himself as "Colin Hill" but did not make any reference to either Cumberland Hospital or SWAHS. Mr Hill said that when he made the call to the E Group, he rang the general line and spoke to a woman. He said he passed on the information to Mr Flight that two of the companies, including the E Group, had vacancies and Mr Flight obtained the position with the E Group, "Totally by himself with nothing at all to do with me". 124When probed further by the Panel, Mr Hill said that Mr Flight suffers from post-managed stress depression, was having a few problems at the time and tended to lean on others to help him. He said Mr Flight actually sought his assistance. Mr Flight, when giving evidence before the Commission, denied any knowledge of Mr Hill making any approaches to the E Group on his behalf, pointing out that Mr Hill was particularly opposed to working with "P Plate" Officers. He said that he had telephone the three companies suggested to him by Mr Hill and attended the interview with the E Group. He provided an account of how well he went at that interview. There was no mention by him, at that time, of any problems associated with the alleged post-managed stress depression. Mr Nohra was familiar with Mr Hill in that he received calls from the latter, at least twice or three times a month over the previous two years, requesting additional security guards for Cumberland Hospital. He was adamant that he received a call from Mr Hill in December 2009 identifying himself by name as well as the site he worked in. He contended that Mr Hill proposed a friend of his, James Flight, for employment as a security guard pointing out that he was looking for work, had a security licence, and was really good at his work. Mr Hill further stated that he would provide Mr Flight with a good reference and would like to work with him. Mr Nohra said he passed on the information to the Human Resources Department to follow up. 125Mr Hill attempted during the first recorded interview by the Investigation Panel to indicate that the issue was so trivial to him that he could not even remember that he made the calls in December 2009 and could not even recall "when he [Mr Flight] even started there". Yet Mr Flight gave evidence, during cross-examination, that he had a conversation with Mr Hill after his engagement by the E Group during which the latter was made aware of his engagement and about the absence of shifts being allocated to him. The evidence indicates that Mr Flight was rostered to work with another Officer in Yaralla Ward on his first shift. Mr Morgan gave evidence that Mr Flight would have been inducted by his "partnered" Officer as to the operation of that ward. Yet Mr Flight gave evidence before the Commission that Mr Hill took him under his wing on that first shift, inducted him to the site, and then stayed back at the end of his shift to go through the procedures of the psychiatric ward with him. 126Both the Applicant and Mr Flight denied speaking to Mr Nohra about the employment of Mr Flight by the E Group. There is absolutely no advantage to be gained by Mr Nohra making up a story about a conversation with Mr Hill regarding Mr Flight's engagement. Mr Nohra's evidence did not change throughout the investigation period and the hearing unlike the evidence of the Applicant and Mr Flight as evidenced above. Therefore, in regard to the manner in which Mr Flight was engaged by the E Group, I prefer the evidence provided on behalf of the Respondent. 127I find that Mr Hill inappropriately rang the E Group requesting that Mr Flight be engaged by that Group and that the E Group accepted Mr Flight as a possible employment candidate as a result of Mr Hill's introduction and reference. Mr Hill's actions got Mr Flight a foot in the door. The rest was up to Mr Flight. He went though the E Group's recruitment process and was appointed as a result of the outcome of that process. 128Mr Flight said he telephoned the E Group to inquire why he did not receive any shifts. He was directed to speak to Mr Nohra and it was during that conversation that he mentioned that he was a friend of Mr Hill and asked if he could get shifts at Cumberland Hospital. Mr Nohra agreed that such a conversation had taken place but insisted that the reason Mr Flight had been given extra shifts was because he received a call from Mr Hill identifying himself and the site on which he worked and asked that Mr Flight be given as many shifts as possible at Cumberland Hospital as he enjoyed working with him. Mr Nohra confirmed that he was aware that Mr Morgan was the Cumberland Security Manager and not Mr Hill. Nevertheless, Mr Nohra was aware that Mr Hill was a senior officer at Cumberland Hospital and therefore believed that it was in his firm's best interests to provide a positive response to Mr Hill in both referring Mr Flight on for possible employment as well as allocating him as many shifts as possible at Cumberland. Mr Flight admitted that he would often mention that Mr Hill was his friend and that he enjoyed working with Mr Hill at Cumberland Hospital in an effort to obtain more shifts there. Mr Flight attributed the number of shifts he received to the fact that not many security guards were available to work during the Christmas-New Year break. He claimed that Mr Nohra said he was grateful to him for making himself available for those shifts. Mr Nohra denied making any such comment to that effect and stated that the E Group would not have had any trouble filing the available shifts at Cumberland Hospital during the relevant period. 129A review of the 40 available Cumberland shifts during the period 29 December 2009 to 6 February 2010 revealed that 28 shifts were worked by James Flight and the next highest only worked 12 shifts during that period, the third closest worked 11 shifts and of the remaining nine officers, three worked three shifts, two worked two shifts and four worked one shift each. Mr Hill said he only worked on two or three shifts with Mr Flight. In actual fact, Mr Flight worked directly with Mr Hill on five shifts. 130The E Group was tipped off by an anonymous complaint regarding the number of shifts afforded to Mr Flight. There was evidence that there was talk circulating around the site about the inordinate amount of shifts being given to Mr Flight. That would indicate that there were security guards who begrudged the preference being given to Mr Flight and belies the statement of Mr Flight that he was provided with shifts because no one else was available to undertake those shifts. 131When one considers the reason for Mr Flight's suspension and Mr Hill's opposition to the engagement of "P Platers" at Cumberland Hospital, it is an extraordinary act on behalf of Mr Hill to contact Mr Morgan to query the above. It confirms the interest that Mr Hill had in Mr Flight's employment at Cumberland Hospital, despite his protestations. Having regard to the evidence before the Commission, the version provided on behalf of the Respondent as to why Mr Flight was provided with a large amount of shifts is to be preferred. 132I find that Mr Hill inappropriately requested that Mr Flight be rostered as much as possible in Cumberland Hospital. 133There was no evidence before the Commission of Mr Hill giving the impression that he had the authority to act on behalf of SWAHS in regard to the rostering of security contractors. Mr Nohra made it clear that he was influenced to provide Mr Flight with more shifts by the fact that the call came from Mr Hill, the fact that Mr Hill held the position of senior security guard at Cumberland Hospital, the contents of the message imparted by Mr Hill, and the fact that the Respondent was a valued client of that Group. 134I find that Mr Hill did not give the impression that he had the authority to act on behalf of SWAHS in regard to the rostering of security guards. 135Mr Flight was caught sleeping whilst on guard duty at Yaralla Ward and subsequently dismissed. There was no evidence from the E Group to confirm that Mr Hill contacted anyone to enquire about the circumstances surrounding Mr Flight's dismissal from E Group. There was evidence, however, of Mr Hill contacting Mr Morgan, on or about 14 or 15 April 2010, querying what the latter knew about Mr Flight being suspended for sleeping whilst on guard duty at Yaralla Ward; the subsequent meeting between the E Group and SWAHS officers; and why the E Group sent one of its night supervisors to do a spot check. 136I find that Mr Hill did not inappropriately ring the E Group to inquire into the termination of Mr Flight although, as mentioned above, he did make those enquiries from Mr Morgan. 137The Applicant was aware that the shift he was working on 23 June 2010 was the first of an extraordinary shift designed to guard the copper piping in the Eastern campus of the Hospital from theft. The latest theft had occurred on 22 June 2010. 138It was not disputed that the Eastern campus is more exposed after working hours as it houses administrative buildings and the workers work ordinary hours only. 139It was also not disputed that, firstly, there was no mention to anyone at any time prior to the commencement of the shift ,or during the course of the shift, of Mr Parker being sick with the flu or Mr Hill subsequently becoming sick. Secondly, the call to Mr Parker about that evening's 8 pm shift was made at approximately 3.10 pm on 23 June 2010. Mr Parker made no mention of being too sick with the flu to take on that shift, or indeed being sick at all. Thirdly, Mr Usel saw Mr Hill and Mr Parker just after 11 am when they arrived at Yaralla ward to get the GM Key. There was no evidence of him noting that either of them was sick with the flu. Fourthly, Mr Parker, after having left the site at approximately 5.30 am because he was too ill to continue the shift, returned at 12.30 pm on the same day to attend a consultation meeting between the HSU and the Respondent about security related concerns. Fifthly, Messrs Hill and Parker turned up for the 6 am shift on the very next day without any residual signs of the flu from the previous day. 140The Investigation Panel expressed concern that, despite the alleged different health related starting points (Mr Parker was allegedly ill when he commenced his shift and Mr Hill became ill at about 3 pm), both men agreed, at about 5.30 am, that they were too ill to complete the shift. I share that concern in view of the evidence outlined above. 141There was a suggestion by Mr Parker that they had been too busy to take a second crib break and that justified them leaving the site half an hour early. He included that in a report dated 24 June 2010. Mr Hill gave evidence that he could not recall whether or not they had a second crib break. Mr Martinac had a distinct recollection that both men returned to the Security Office for their 3 pm break because he recalled that he went out on to the balcony to avoid being in the office with them. Even if both men had not taken their second crib break, they were not justified in concluding their shift half an hour early bearing in mind the nature and purpose of the shift they were working. 142I find, contrary to the findings of the investigation panel, that the allegation that Messrs Hill and Parker were not truthful about the reason for leaving the campus early is substantiated. 143Mr Morgan gave evidence that he arrived on site at 5.30 am and could not find Hill and Parker. He said that Martinac and Usel confirmed to him verbally that both men had left the site before 5.30 am. Mr Tonna, a security guard who arrived at 5.30 am in readiness to commence the day shift said he did not see either of them in the office. In their written statements to the Respondent, Mr Parker said they left at "approximately" 5.40 am and Mr Hill said they left at 5.40 am. Mr Martinac said they left at approximately 5.35 am. During oral evidence, both Hill and Parker stated that 5.40 am was an approximate time. I agree with the submissions made on behalf of the Respondent that, in order to arrive at the Security Office by 5.35 am, Messrs Hill and Parker would have had to leave the eastern campus before 5.30 am - at least half an hour prior to the scheduled completion of the extraordinary shift. 144I find that Messrs Hill and Parker left the eastern campus prior to the scheduled completion of the extraordinary shift thereby leaving that campus exposed to the security risk that the overtime shift was supposed to address. 145During the recorded interview with the investigation panel, Mr Hill said that he told Usel that both he and Parker were going home because they were "crook". He said that Usel noted that there were another 20 minutes left to the shift and he would conduct the last patrol of the eastern campus. However, in his affidavit, he merely advised that Mr Usel undertook that he would cover the last 30 minutes of their shift. In his later affidavit, Mr Hill referred to Mr Usel as undertaking that he would cover the last 20 minutes of their shift. Nevertheless, he noted that Mr Usel was completing his paperwork at that time. Mr Parker said that it was he who advised Mr Usel that both of them were leaving because of illness and asked, and Mr Usel agreed, to cover the eastern campus until 5.55 am. Mr Hill maintained that it was he who did the talking when they returned to the Security office. It is noted that Mr Hill did not, at any time, contend that either of them asked Mr Usel to complete their shift. A request was certainly never made by him. He simply relied on Mr Usel's response, "You go, you go", as indicative of an offer to complete their shift. Mr Usel denied ever agreeing to, or volunteering to, complete their shift by either word or action. As the Respondent rightly noted, Mr Usel would not have been able, for safety reasons, to conduct the last patrol of the eastern campus alone while Mr Martinac undertook the handover to the day shift. Mr Parker gave evidence that, had he not received an assurance that Mr Usel would cover the rest of their shift, he would have remained and completed the shift. It is of concern that the same level of commitment was not demonstrated by Mr Hill. 146The Respondent submitted that the nature and extent of the calls made to Messrs Usel and Martinac were the critical considerations bearing in mind that both those guards were extremely busy on standby at the Uralla Ward which can be a difficult and dangerous duty. The Respondent rightly noted that the Applicant was reluctant to go to the western campus to use the toilets because of the nature of the extraordinary shift he was engaged on that night. Yet he was prepared conclude his shift half an hour early. 147I do not accept that Mr Hill, one of the senior Security guards employed by the Respondent, and after nearly three years employment at Cumberland Hospital, was not aware of what external toilets there were on the site. Messrs Martinac and Usel were aware of those toilets. 148In spite of the fact that Mr Hill was directed at the recorded interview to maintain confidentiality regarding the investigations, Messrs Martinac and Usel both made formal complaints about being bullied and harassed. Their complaints are detailed above. 149Mr Hill, in responding to Mr Bright, on 9 September 2010, about the intended recommendation to dismiss him as contained in the second investigation report, said he had received a telephone call from a Joseph Matter, the working partner of Mr Martinac, who told him that Mr Martinac had confided in him that when he made the allegations against Mr Hill he was upset. Mr Matter allegedly said that Mr Martinac said to him that he was already upset over his wife going overseas without him, he was experiencing difficulties in selling his house, his sister in New Zealand was critically ill with cancer. It was contended that those upsets were compounded by the fact that the actions of Messrs Hill and Parker caused the Human Resources Department to examine the Sign On/Sign Off book and that exposed that he was one of those Officers who had failed to sign on and off. 150It is noted that Mr Hill did not call evidence from Mr Matter in relation to that contention and is therefore considered to be merely hearsay evidence. 151Mr Hill gave evidence that he had attempted them to talk about union issues and garden shears. Those reasons are detailed above. 152I accept that Mr Hill did inappropriately contact, and continued to try to inappropriately contact, other security officers contrary to directions from the investigation panel. 153The Commission was shown a security footage of an incident referred to by the Applicant in his statement. Mr Hill described dealing with a dangerous situation involving a self admitting patient brandishing a knife and a tomahawk menacingly towards a doctor while being interviewed at admissions. The Respondent questioned the credibility of the Applicant who admitted, during cross-examination, that, contrary to what he said in his statement: * he did not see the patient brandishing any weapon; * it was his partner and not himself who had grabbed a female doctor and pulled her into the office quickly; * he had not closed the door to the office; * he had not confronted that patient; * he was not prompted to return to the office by what he was told by the nurses; * no police officers entered the admission building with their guns drawn; * the patient had not been handcuffed by police; * he remained in the admissions building for 10 minutes after the police departed with the patient from the admissions building. 154I accept the submissions made on behalf of the Respondent that Mr Hill had grossly embellished and exaggerated his own role in connection with that incident. 155It is noted that Mr Hill has only had one day's absence on sick leave during his 3-year employment period with the Respondent. He has also not received any warnings or counselling during that period of employment. Both records are commendable. 156Nevertheless, the findings outlined above are sufficient to arrive at a conclusion that the termination from employment is not harsh, unjust or unreasonable. ORDERS 157Matter No. IRC 1298 of 2010 is hereby dismissed. I Tabbaa AM 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: 14 May 2012