Industrial Relations Commission New South Wales Medium Neutral Citation: Bryan Hargreaves and Director-General of Health on behalf of South Western Sydney Local Health District [2013] NSWIRComm 1022 Hearing dates: 4 April 20139 May 2013 Decision date: 25 October 2013 Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal application-Assault on patient while in full-time employment with another local health district-Actions of Applicant reflexive and defensive-Dismissal found to be harsh, unjust and unreasonable-Applicant reinstated; Appeal proceedings upheld the finding of harshness...but determined that reinstatement impracticable-Respondent has lost confidence in the Applicant acting appropriately in the future- risk to patients-awarded full compensation having regard to inclusion of the Applicant on the Service Check Registry-Agreement between Applicant and the Respondent to accept outcome of those proceedings-Applicant dismissed-Full Bench clear statement that Respondent justified in its loss of trust and confidence-Same Respondent in both matters-Director-General of Health; Same statement of duties; Patients with mental health issues in both local health districts; Director-General of Health deemed to be the Employer-Applicant voluntarily agreed to forego right to s 84 claim-Termination not found to be harsh, unjust or unreasonable-claim dismissed. Legislation Cited: Industrial Relations Act 1996 Public Sector Employment Legislation Amendment Act 2006 Public Sector Employment and Management Act 2002 NSW Health Services Act (1997) Health Administration Act 1982 Cases Cited: Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012; NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123; Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217; New South Wales Nurses' Association (on behalf of Colin Prior) and the South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164; Samad v Public Service Board (New South Wales) (1983) (NSW Court of Appeal) 5 IR 464, at 466; Sharma v Sydney South West Area Health Service (2006) NSWIRComm 1157; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) IRCA 15; Antonakopoulos v State Bank (1999) 91 IR 385 Category: Principal judgment Parties: Bryan Hargreaves (self-represented) Stephen Bull (for the Respondent) File Number(s): IRC 1215 of 2012 DECISION Background 1Mr Bryan Hargreaves, the Applicant, was employed as a Security Guard within a number of local health districts. The Respondent is expressed to be the Director-General of Health. He was employed as a full-time security officer at Hornsby Hospital, which is administratively located within the Northern Sydney Local Health District (NSLHD). The Applicant also held casual positions with two other local health districts - at Fairfield Hospital, which is administratively located within the South Western Sydney Local Health District (SWSLHD) (since 27 January 2010 albeit his first shift was on 3 May 2010) and at Cumberland Hospital, which is administratively located within the Western Sydney Local Health District (WSLHD). 2The Respondent took no issue with the fact that the Applicant had been employed as a casual employee because he was expressed to be a long term regular casual. 3The generic statement of duties, produced in consultation with the Ministry of Health, includes the provision of security services within a public hospital including de-escalating situations and the task of assisting hospital staff to deal with, and restrain, aggressive and agitated patients. 4On 7 June 2011, the Applicant, while working in his full-time capacity at Hornsby Hospital with the NSLHD, struck a patient whilst a medical procedure was being carried out. 5On 14 September 2011, the Applicant's employment with Hornsby Hospital was terminated as a result of the incident. The Applicant was advised that his name would be placed on the Service Check Registry. 6On 21 September 2011, Amanda Larkin, Chief Executive, SWSLHD, wrote to the Applicant and indicated that, as a result of the termination of his employment with the NSLHD by the Director General of Health on 13 September 2011, his employment with Fairfield Hospital was also terminated. 7On 29 September 2011, the Applicant filed a claim pursuant to section 84 of the Industrial Relations Act 1996 (the Act) for relief relating to his alleged unfair dismissal from his full-time position at Hornsby Hospital by the NSW Health Services NSLHD (the Hornsby application). 8On 30 September 2011, the Applicant proposed to the SWSLHD that, as an act of good faith, he would not lodge a separate unfair dismissal application in relation to his "termination" as a casual security officer at Fairfield Hospital if he had an undertaking that if he were reinstated as a result of the "Hornsby application" that decision would apply to his employment generally with the Respondent. 9On 10 October 2011, Amanda Larkin, provided an undertaking that, should the Applicant be "reinstated" as a result of the Hornsby application, that he would also be reinstated to his casual security officer position at Fairfield Hospital. 10The Respondent took no issue with the claim subsequently being lodged out of time as a consequence of that agreement. 11Cumberland Hospital also ceased to offer the Applicant casual work. The Applicant did not dispute that termination. 12Conciliation proceedings failed to resolve the Hornsby application and the matter was arbitrated before Ritchie C on 28 and 29 March 2012 and 27 April 2012. 13On 1 June 2012, Ritchie C issued a decision in Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012 (the Ritchie C decision) ordering the reinstatement of the Applicant, with back pay, to his employment with Hornsby Hospital. 14As a result of that decision, the Applicant's name was removed from the Service Check Registry. 15On 7 June 2012, as a result of an approach from the Applicant's Solicitors seeking to invoke the terms of the undertaking, the Applicant was reinstated to his casual position at Fairfield Hospital. 16On 22 June 2012, the Respondent lodged an appeal against the Hornsby decision and a Stay of the orders made in that decision was obtained in proceedings before the Honourable Justice Boland, the President of the Industrial Relations Commission of NSW, on 9 August 2012. The management of SWSLHD was unaware that the Director-General had lodged that appeal until it noticed the listing of the hearing in the law list. 17On 13 November 2012, a Full Bench of the Commission (comprising Boland J, President, Walton J, Vice-President and Bishop C) handed down its decision in NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 (the Hornsby Appeal). The Full Bench granted leave to appeal, upheld the appeal of the Respondent to the extent that the Commissioner erred in finding reinstatement was not impracticable, quashed the Commissioner's orders concerning reinstatement and back pay and ordered that the Applicant be paid 26 weeks' pay. The Full Bench found that even though the striking of the patient was reflexive and defensive, it was obvious that the Respondent had lost confidence in the Applicant acting appropriately in the future. The Full Bench did not disturb the finding of Ritchie C that the termination of the Applicant was harsh, unjust and unreasonable. 18The Respondent considered the findings of the Full Bench in the Hornsby appeal in relation to the practicality of the reinstatement of the Applicant and concluded that, on the basis of the clear statement made by the Full Bench, it was justified in its loss of trust and confidence in the Applicant and that the Applicant posed a risk to patients and it was therefore necessary to terminate his employment as a casual Security Officer at Fairfield Hospital. The Respondent considered, firstly, that the practical effect of the Hornsby Appeal decision was that the Applicant could not be relied upon to act appropriately in relation to a fundamental aspect of his work at Hornsby Hospital. As the function the Applicant was performing at Hornsby Hospital was the same as the function he performed at Fairfield Hospital, it followed that it would be disingenuous for the Respondent to ignore the finding of the Hornsby Appeal Full Bench in relation to his work at Fairfield Hospital. Secondly, the Respondent considered that its decision to terminate the Applicant from his casual employment at Fairfield Hospital was consistent with the undertaking reached by both parties to treat the outcome of the Hornsby application as applicable to his work generally with the Respondent. 19On 16 November 2012, Amanda Larkin wrote to the Applicant advising that his employment at Fairfield Hospital was at an end as a result of the Hornsby appeal decision: 20The Applicant's Solicitors filed a Notice of Intention to Appeal the Hornsby Full Bench decision on 30 November 2012. The Applicant wrote to the Industrial Registrar on 8 February 2013 to advise that he will not be submitting a leave to appeal and will allow the holding appeal to lapse owing to the excessively high cost of proceeding with the matter in the Supreme Court of NSW. 21On 7 December 2012, the Applicant filed a claim for relief relating to his alleged unfair dismissal from Fairfield Hospital. Conciliation proceedings held on 9 and 17 January 2013 before Bishop C failed to resolve the claim and standard directions were subsequently issued. 22The matter was originally set down for hearing on 3 April 2013. At that time there was no appearance entered by, or on behalf of, the Applicant. Correspondence was received from the Applicant, dated the same day, advising that he was unable to attend owing to the fact that he was babysitting his 10 month old son while his wife, a nurse, was on her rostered shift. He could not find a babysitter. 23In the interim, there was a petition prepared by a number of persons employed in the Respondent in relation to the Applicant's employment. As there was a dispute between the parties as to the signatories to that petition and more witnesses would be required to be called at that late stage, it was decided that the merits of the claim would be decided first and, if the Applicant was successful in his claim, the matter would be listed to consider the petition and hence the relief that would be awarded. The Respondent also indicated that it would not rely on Annexure D to the statement of one of its witnesses, Mr Miles, which contains "adverse" communication about the Applicant unless the matter proceeded beyond the merit stage of the argument. 24The matter was heard on 4 April and 9 May 2013. 25The Applicant is seeking reinstatement to his former position, reimbursement for all lost wages and his service to be deemed not to have been broken by reason of his termination. The Evidence 26The Applicant gave evidence that he had been in the security industry in varying capacities for approximately 20 years prior to his commencement with the Respondent, including managing his own security company in Ballina prior to moving to Sydney in 2001. 27In February 2009, he commenced casual employment as a Security Officer with the WSLHD (Cumberland Hospital facility). In addition, in December 2009, he commenced as a permanent full-time Security Officer with what the NSLHD (Hornsby Hospital facility). Also in addition, he completed his first casual shift as a Security Officer with the SWSLHD (Fairfield Hospital facility) on 3 May 2010 having rejected an offer of a permanent part-time position with that Service because of his full-time position with the NSLHD. 28The Applicant gave evidence regarding the training he received while he was with SSWLHD which, he understood, exceeded $1500 in value in relation to external training. He also participated in the internal training provided to the permanent Security staff, including annual refresher courses. 29The Applicant also gave evidence of the contribution he made to the administration of the Security Department at Fairfield Hospital including his successful representation of other casual Security staff in relation to implementation of a policy relating to shoe and uniform allowance; introduction of 12-hour rosters, and updating/maintaining of the duress alarm testing schedule. 30The Applicant acknowledged that some of the policies that formed the basis of the workplace duties of Security Officers in all facilities originated from NSW Health. Nevertheless, each Area Health Service also had specific workplace policies and procedures that were implemented at each of its hospitals. In addition, each Hospital had specific procedures to cater for its particular environment. He submitted that there were therefore some variations in the duties undertaken by Safety Officers between each hospital and between each Area Health Service. In addition, those duties varied depending on the size of the hospital, the level of risk, the type of in-patient and out-patient services that were provided and the socio-economic circumstances of the surrounding area. The Applicant provided examples of those differences and the risks associated with being a Security Officer at Hornsby Hospital in comparison with Fairfield Hospital. The Applicant noted that Fairfield Hospital and Braeside Hospital on the same campus do not have any mental health in-patient or out-patient services or any mental health units such as a Mental Health Care Intensive Care Unit, an Acute Mental Health Care Unit or a Psychiatric Emergency Care Centre. 31The Applicant submitted that he was requested, on 14 September 2011, to attend a meeting with senior management of Fairfield Hospital on 21 September 2011 to discuss his termination from Hornsby Hospital. When he eventually met with Paul Miles, Director of Corporate and Finance, and Chris Leahy, Acting General Manager, he said he was advised that the reason for the hour-long delay in commencing the meeting was the fact that they were liaising with the Human Resources Department attempting to obtain agreement to conduct a risk assessment on him in an effort to find options other than termination of his employment. He was advised that the Human Resources Department had issued instructions to terminate his employment. 32He said he received a hand-delivered letter dated 21 September 2011 in which Ms Amanda Larking, Chief Executive, SWSLHD, advised that, as per section 116 of the HS Act, the employer of all staff across NSW Health is the Director General, NSW Department of Health. As his employment had been terminated on 14 September 2011 from NSLHD, it followed that his employment with Fairfield Hospital was also terminated. 33He said that, on 30 September 2011, he forwarded an email to Paul Miles, Director of Corporate Services, Fairfield Hospital, indicating that he would not lodge a separate unfair dismissal application in relation to his termination as a casual security officer at Fairfield Hospital and that he would rely on an undertaking that if he was successful in overturning his termination and was reinstated as a result of the Hornsby application, that result would apply to his employment generally with the Respondent. He explained that he used the wording in the NSW Health Services Service Check Registry in negotiating the "understanding" with the SWSLHD. In particular, he referred to "overturning" his recent termination. 34On 10 October 2011, Amanda Larkin, noted in correspondence to the Applicant that, should the unfair dismissal application against NSLHD result in his reinstatement, that he would also be reinstated to his casual security officer position at Fairfield Hospital: The Applicant pointed out that, had he not received that undertaking, he would have lodged an unfair dismissal application by no later than 19 October 2011 (within the 21 day legislative limit) seeking to be reinstated to his casual position with the SWSLHD. 35The Applicant noted that his phrase "overturn my termination" had been altered to read "reinstatement" back to NSLHD. He said that, while the terms of the undertaking did not meet his requirements, he did not wish to unnecessarily escalate matters, possibly harm his good relationship with that Health District and, in addition, face the burden and cost of pursuing another application before the Commission. He pointed out that had Ritchie C provided a remedy other than reinstatement, he would have lodged an out-of-time application and believed that he had reasonable prospects of success given the circumstances. 36The Applicant provided correspondence exchanged between the parties when both he and his Solicitor wrote to the WSLHD seeking his reinstatement to Cumberland Hospital following the Ritchie C decision. All attempts to meet with the Senior Human Resources Consultant and requests for reinstatement were futile. The WSLHD consistently insisted that the district was sufficiently staffed with casual security officers. The Applicant said he did not pursue his reinstatement to Cumberland Hospital any further. 37The Applicant said that his Solicitors received correspondence from Ms Luci Caswell, A/District Director Human Resources, dated 10 July 2012, acknowledging the agreement, and advising that, based on the material provided by the Applicant, it seemed that the Applicant had been successful in his unfair dismissal application in obtaining reinstatement with the NSLHD. Ms Caswell advised that, accordingly, the Applicant would be reinstated at Fairfield Hospital. 38During cross-examination, the Applicant agreed that he used emails to communicate with management when he wanted a record kept of conversations. He said he reported to Mr Veljovic verbally in July 2012 that an appeal had been lodged by the Respondent against the Hornsby decision and the Stay Order that had been issued by the President, Boland J. He argued that he had not put it in writing because it was common knowledge amongst staff in the Security Department. 39The Hornsby Appeal Full Bench handed down its decision on 13 November 2012. The Applicant said he was rostered to work the 6 pm shift on 15 November 2012. However, he received a telephone call from Mr Miles and Ned Veljovic advising that he was not required to attend as a result of the Stay of the Ritchie C decision issued by his Honour, the President, on 9 August 2012. He was advised that he would be paid for that shift. He denied that he was told verbally that his employment was to be terminated. He insisted that Mr Miles told him that he was stood down for that shift because management needed time to assess the impact of the Hornsby Full Bench decision. The Applicant pointed out that, approximately one hour later, at about 5.17 pm, he emailed Mr Veljovic advising that he needed to provide him with an updated resume and the name of a new referee. He queried why, if he had been told of his impending dismissal, he would have forwarded that email, why he would have provided a new referee, why he bothered to attend the interview the following day and, indeed, why was he allowed by the Service to attend that interview? The Applicant denied receiving any telephone calls from Mr Miles on 16 November 2012 advising him of his termination. He provided his telephone records of outgoing calls to prove that he attempted, on four occasions, on that day to contact Mr Miles and was unsuccessful. The Applicant said that he received a letter of termination at 3.49 pm on 16 November 2012. He said the termination came as a "great surprise" to him because he had not received any informal or formal notification of any performance or disciplinary issues during his employment with the SWSLHD. He was left feeling "very upset and concerned" in view of the fact that he was to attend an interview for a full-time position on the same day. 40The Applicant pointed out that SWSLHD had not conducted any risk assessment on him. The Applicant said he held the view, supported by legal advice he had obtained, that the finding of Ritchie C was upheld, that is, the termination remained "overturned" but with an alternative remedy substituted in its place. 41The Applicant advised that he had been attempting to obtain a full-time position with SWSLHD. He applied for a full-time position which was advertised internally in about June 2012. The Selection Committee recommended him as the preferred candidate for that position. However, the SWSLHD declined to approve the recommendation. He requested, and obtained, feedback from Mr Miles regarding his application. He was advised that the SWSLHD had concerns at the feedback received from one of the referees he had provided. Mr Miles suggested to him ways in which he could address those concerns. The Applicant stated that, although he did not agree with those concerns, he addressed them in a constructive and positive manner by providing a comprehensive submission to Mr Miles. 42The Applicant said he applied for another full-time position that had become vacant as a result of a resignation. It was externally advertised in late October 2012. He attended the pre-scheduled interview on 16 November 2012. He received correspondence from Mr Veljovic on 2 November 2012 advising him that his application had not been successful. He believed that he had been unsuccessful because of his termination from SWSLHD, He had no legal or industrial right or avenue to appeal the decision to remove him from the selection process for that position. 43The Applicant contended that the Respondent had relied on the provisions of section 116 of the HS Act for arriving at the decision to dismiss him from employment. The Applicant pointed out that nowhere in that section does it state that continued employment at one Health District is dependent on continued employment at another. 44The Applicant queried how it was possible that, if, indeed, all staff employed within the NSW Health Services are employed by the one employer, the Director General: (a)he was employed as a full-time employee at one hospital and casual employee in two other hospitals all at the same time? (b)he was provided with three separate employee numbers? (c)he received three different lots of wages - all of which were deposited into the same bank account? (d)he received letters of termination from each of the Health Services rather than a single letter of termination from the Director-General? (e)each Local Health District is run as a separate business, each with its own Australian Business Number (ABN) when organisations such as the NSW Police Force and NSW Corrective Services work under "one generic centralised banner"? 45The Applicant said that he had communicated with Mr Miles on 19 November 2012 pointing out that his opinion, and that of his legal advisers, was that the Ritchie C decision remained intact in relation to the finding of an unfair dismissal and that only the remedy had been altered. He requested reinstatement to his former position with the SWSLHD and also requested that a meeting be arranged to resolve the issues between the parties to avoid an escalation. Both requests had been ignored. 46The Applicant referred to various telephone conversations he held with Paul Miles and Ned Veljovic. He pointed out that they had not, despite there being several opportunities given to them, provided any reason for his termination save for the belief that the Hornsby Full Bench decision had upheld his termination from NSLHD. 47The Applicant recalled a conversation he had with Mr Bert Coquillon, Industrial Officer with the Health Services Union, after the Hornsby Appeal Full Bench decision was handed down. He contended that Mr Coquillon told him that the NSLHD would not be putting his name back on the Service Check Register as a result of that decision. The Applicant relied on section 3.5 of the Service Check Register policy directive as support for his contention that the Respondent does not have authority to put his name back on the Register. 48The Applicant said he became aware that a full-time Security Officer commenced full operational duties at Fairfield Hospital on 28 December 2012 after completing training shifts approximately a fortnight previously. 49The Applicant is seeking reinstatement to his former position with the SWSLHD as a casual Security Officer; payment for the period from his termination until his reinstatement and that his service be regarded as unbroken. He suggested that the payment be calculated as follows: the actual remuneration he would have received for shifts he was rostered by Ned Veljovic to work, and would have worked but for his termination, from the date of his termination up to 28 December 2012; and thereafter, lost wages to be calculated on average wages. In his statement evidence in chief, the Applicant advised that he had continued to work as a casual Security Officer on Friday and Saturday nights undertaking crowd control. He pointed out that such work did not interfere with his work for the SWSLHD and therefore should not be taken into account in discounting any monetary compensation to the applicant in the form of back pay. In his statement in reply, the Applicant advised that he had changed jobs and was now working as a casual undertaking covert cash in transit work. During cross-examination, the Applicant insisted that he did not work for New South Wales Health but worked for three "very separate, very different" local health districts. The Applicant was shown a copy of an email forwarded to all staff by Dr Mary Foley when she was first appointed as Director-General. The Applicant acknowledged that he had responded with an email dated 12 April 2011 to which he had copied Mr Paul Miles and Mr Ned Veljovic. He had congratulated Dr Foley on her appointment and made a suggestion that the uniform for Security Officers be standardised, just as occurs with Nurses, Cleaners, etc. across all "departments" of the NSW health system. He denied that he considered Dr Mary Foley, the Director-General, to be his ultimate employer: I had three separate employers. I was working under the assumption back then. What I know now is completely different. It's not a matter of me changing my view. The simple fact of the matter is I was ignorant back then and now because of all the research I've done I know now it's different. 50The Applicant confirmed that at Fairfield Hospital he had to deal with the psychiatric geriatric ward at Braeside. He also confirmed that as special constable at Fairfield, he had powers of arrest equivalent to a police officer. Unlike a citizen's arrest, he could arrest on suspicion. 51Mr Simon Alan Gavaghan was called to give evidence on behalf of the Applicant. He joined the Security Industry some 12 years ago and has worked at Fairfield Hospital as a Security Officer for some 5.5 - 6 years. 52Mr Gavaghan gave evidence that he did not believe that the role of Safety Officer differed greatly from one hospital to another pointing out that they are employed to help keep a safe environment for the patients, visitors and staff and to protect the property and information kept at the hospital. 53Mr Gavaghan confirmed that when they worked together at Westmead and at Fairfield, he found the Applicant to be a competent worker when dealing with aggressive people and when responding to general enquiries from the public. 54Mr Njegos Veljovic was also called to give evidence on behalf of the Applicant. He commenced as a casual Security Officer at Fairfield Hospital in 1991 and became full-time in 2000. In 2006, he was appointed full-time Fire Safety and Security Manager at Fairfield Hospital where he remains employed. Mr Veljovic confirmed that the Applicant assisted by acting as go-between in a dispute between security officers and management in regards to a uniform and shoe allowance matter. He pointed out, nevertheless, that the Applicant had appointed himself to that position. 55Mr Veljovic agreed that he encouraged security officers to make suggestions that would make the work place more efficient and more effective. He also agreed that the Applicant made suggestions and sometimes they were appropriate but pointed out that the Applicant also made suggestions that were not appropriate. 56Mr Veljovic advised that concerns were expressed to him by nursing staff from the Emergency Department and 2B Ward about the attitude of the Applicant towards them. He could not confirm that the complaints arose as a result of interpretation problems created by language barriers because the complaints came from a number of people from differing backgrounds that included Australian and Anglo-Saxon backgrounds. He advised that he never had any issues with the Applicant performing his work but, rather, the manner in which he did the work. 57Mr Veljovic gave evidence that although he could not provide any statistics, the hospital does get mental health patients either self presenting or brought in by members of their family. He also stated that there are occasions when a mental health patient presents at the hospital but the staff are not aware of this until their file is brought up. In addition, there is a detox unit on the campus that the security officers are required to look after and, in his opinion, at least 80% of its clients visiting Corella lodge may and do have mental health issues. 58Mr Paul William Miles, Director of Corporate Services and Finance, Fairfield Hospital explained that he is responsible for the management of all non-clinical staff and services at that Hospital. Mr Ned Veljovic, head of the security department, reported directly to him. Mr Miles provided a detailed description of the facility and the type of patients it attracted. 59Mr Miles pointed out that Statements of Duties are produced in consultation with the Ministry of Health. The generic statement of duties for security officers at the Hospital, tendered in the proceedings, relevantly includes the following key performance areas: - Respond immediately to all emergency calls (ie Fire, Bomb, Assaults and Aggressive incidents) and provide assistance; - Assist staff in restraining violent or aggressive patients as directed by medical staff; - Provide assistance to staff in dealing with unruly persons; and - Conduct static security duties for potential aggressive patients prior to being assessed for scheduling. The Statement of Duties advises applicants that the position has been assessed as being at high risk of aggression and will involve some exposure to physical risks which may arise when assisting clinical staff in the management of potentially aggressive patients and/or assisting in a range of emergency situations envisaged by the Statement of Duties. Applicants are required to sign a copy of the Statement of Duties to confirm that they have read it, understand its contents and accept that they must work in accordance with the requirement of the position. It is noted that the Statement of Duties was reviewed in July 2011 and was not the one signed by the Applicant. Unfortunately, the Applicant did not take the opportunity to compare it with his original statement of duties in order to comment on the document. Nevertheless, it was recognised that should the Applicant be reinstated to his former position, that is the Statement of Duties that would be applicable to him. 60Mr Miles also tendered in the proceedings a copy of the current Position Demands Checklist for security officers at the Hospital. The checklist includes, amongst other things, a list of Psycho-Social demands which occur occasionally, that is, the activity exists up to 1/3 of the time when performing the role: - Role involves interacting with distressed people; - Role involves interacting with people who may be aggressive both physically and verbally; - Role involves treating patients who are in police custody or under police protection; - Role involves interacting with, or providing care to, persons who may have a psychological or psychiatric disorder. In relation to the working environment, the role involves direct responsibility for the safety of others. Once again, the Security Officer is required to sign a declaration that they are fit and able to perform the duties of the position as outlined on that check list. 61Mr Miles confirmed that the Applicant forwarded an email to him dated 30 September offering not to lodge a similar claim against SWSLHD if he could rely on an undertaking that if he were reinstated as a result of the Hornsby application, the result would also apply to his employment with the SWSLHD. Mr Miles said he was left with the clear understanding that reinstatement of the Applicant to Hornsby Hospital would result in reinstatement to Fairfield Hospital and, similarly, an unsuccessful outcome would result in the maintenance of his termination from Fairfield Hospital. 62Mr Miles stated that he was aware that Ms Amanda Larkin, Chief Executive, responded on 10 October 2011, providing an undertaking in relation to a reinstatement by the Commission. 63Mr Miles stated that the Respondent complied with its undertaking upon receiving correspondence from the Applicant's Solicitor on 7 June 2012 advising that Ritchie C had reinstated him to his former position at NSLHD in a decision dated 1 June 2012. The Applicant worked a number of casual shifts between 30 July 2012 and 7 November 2012. He was rostered to work a shift on 15 November 2012 but was stood down as a result of the Stay Order issued by his honour, the President. He was, nevertheless, paid for that shift owing to the late notice. Mr Miles stated in cross-examination that he was not aware of any plan at that stage to terminate the Applicant. 64Mr Miles recalled that he forwarded a termination letter to the Applicant by email at 3.50 pm on 16 November 2012. At approximately 4 pm, he received a telephone call from the Applicant. He tendered a file note he had created regarding that conversation. He noted that the Applicant was laughing throughout the conversation describing his termination by the SWSLHD as baseless. He said the Applicant: (1)advised that the HSU advised him that confirmation had been received from Richard Griffins, Director of Workforce, NSLHD, that the Applicant would not be placed on the SCR; (2)maintained that the Hornsby Full Bench had overturned his termination as it was "unjust and unreasonable" (referring specifically to paragraphs 45, 47 and 58 of their decision); (3)considered the 26-weeks pay awarded to him as a pay-out and not a termination; (4) intended to dispute his termination from SWSLHD pointing out that his name was no longer on the SCR. (5)maintained that, as his name has been removed from the SCR, there was no impediment to his continued employment with SWSLHD; (6)sought a meeting with Mr Miles in order to present a case in support of his reinstatement. Mr Miles said that he responded that the decision to dismiss him from SWSLHD was not a result of his inclusion on the SCR but was the result of the decision of the Full Bench in relation to the impracticality of his reinstatement. He said he advised the Applicant that it was prudent to read the termination letter first and then decide what he wanted to do. He also suggested to the Applicant that he obtain legal advice before settling on a course of action. He reminded the Applicant of his ability to utilise the services of the Employee Assistant Program and offered to assist him in arranging such a meeting. 65In response to a question in cross-examination, Mr Miles advised that he had conducted a preliminary investigation into the conduct of the Applicant in March 2011 when it was alleged by another Security Officer that the Applicant had verbally assaulted him, threatened him and thrown keys at him. The matter had not progressed to a formal investigation because both Officers had resolved to settle the matter by mediation. 66Also in response to a question in cross-examination, Mr Miles recalled that, in providing telephone feedback to the Applicant in August 2012 following an unsuccessful application for a full-time position at the Hospital as a Security Officer, he had suggested to him that he establish regular meetings with Mr Veljovic in order to find ways and means of addressing his shortcomings which Mr Miles personally observed while the Applicant undertook his duties at the Hospital - his general communication with other Security Officers was more like that of a Supervisor than a collegiate manner, his ability to work as part of a team and also his judgment, particularly at times of immediate high risk. He recalled that the Applicant had not taken up that suggestion. Instead of taking his advice, he said the Applicant had compiled a folder of documents in response to the issues he raised with him. Mr Miles said that he advised the Applicant that improvements displayed over a period of time would be more appropriate and would strengthen future applications for positions. THE SUBMISSIONS The submissions of the parties are summarised below. 67The Applicant submitted that the Hornsby Appeal Full Bench decision did three things - it regarded his termination as harsh, unjust and unreasonable; it awarded him the maximum compensation allowable under the Act albeit his total period of service with NSLHD was about 1.5 years; and the awarding of maximum compensation by the Hornsby Appeal Full Bench as an alternative remedy meant that his termination remained overturned. 68The Applicant pointed out that the termination by Fairfield Hospital occurred on the same day he attended an interview for a permanent full-time position at that Hospital. 69He pointed out that there is no mental health in-patient service at Fairfield Hospital - there is a geriatric and dementia service; Fairfield Hospital is a safe environment; they are a lot stricter on their procedures and on their policies in regards to patient care. 70He explained that what happened with the patient at Hornsby Hospital was an extraordinary situation. She was regarded as the worst patient in the highest graded psychiatric facility within North Sydney in that she was extraordinarily dangerous and unpredictable. She was housed in the mental health intensive care unit, one step below the highest grade, the criminal forensic unit. It was his understanding that this patient was ultimately transferred to the criminal forensic facility. In addition to all that, the procedure had not been conducted properly - the staff had underestimated the danger and unpredictability of that patient. Unlike Fairfield, there is a great responsibility put on the security officers because of the level of aggression at Hornsby hence the batons and handcuffs provided to their security officers. 71In submissions in reply, the Applicant agreed that there was no justification for doing what he did and he fully understood what happened that day and has taken it on board for the future. However, he still stood by the fact that he had acted in self-defence. Had he merely stepped back, he would have placed someone else at equal or greater danger. If that is what is required to preserve his employment, then that is the action he would take in future even if it means he would be placing someone else at an equal or greater danger. 72The Applicant also pointed out that he had lodged a "holding" appeal with the NSW Court of Appeal regarding the Hornsby Appeal outcome to allow him sufficient time to seek legal advice and an independent legal assessment of his prospects if he chose to appeal. On that basis, he was denied natural justice and due process by his termination from Fairfield Hospital when legal proceedings in relation to his termination from Hornsby Hospital had not been finalised. 73The Applicant further pointed out that the Respondent was not comparing like with like in that the circumstances existing at one workplace did not exist at the other. In addition, - no performance or disciplinary matters were ever raised with him, either formally or informally, in relation to his employment at Fairfield Hospital; - no concerns had been raised with him, either formally or informally, regarding a lack of trust or confidence in him; - no concerns had been raised with him, either formally or informally, regarding his ability to des-escalate difficult situations; - On the contrary, he has received positive feedback about his abilities; - he was provided with rostered shifts in a regular and systematic fashion over the 87 weeks of his employment (inclusive of 7 weeks of unavailability); - He was sent on an external 5-day training course as Fire Safety Officer - a course he completed on 16 September 2011; - He was appointed an (external) Special Constable of NSW on 20 September 2011; - Both the training and the appointment cost over $1500 indicating a long term investment in his professional development as an employee of the SWSLHD; - He received the same in-house training as was provided to permanent full-time Security Officers (he completed a Self Enforcement Infringement Notification System (SEINS) course on 26 July 2010 and other mandatory training courses which include annual refresher courses); and - He was to attend his annual performance management review on 22 November 2012 which was the same requirement as that for permanent full-time Security Officers. 74The Applicant noted that the statement provided in the proceedings by Mr Miles contained material relating to concerns raised about him at the workplace. In response, the Applicant annexed a series of documents to his statement in reply. As those matters have not been relied on by the Respondent in this part of the proceedings, there is no reason to set out the applicant's objections in that regard. 75The Applicant explained that up until 2001 when he settled in Sydney, he had spent his life predominantly exposed to country people and Kooris and had limited exposure to foreign languages and cultures. He noted that the material in Mr Miles' statement hinted at racism but there were no racist terms used or quoted in any of the material. He explained that his employment at Fairfield Hospital was the first exposure he had as he was required to work closely with persons of Filipino, Indian, Pakistani or Vietnamese ethnicity and admitted that he had difficulty in understanding their accents, particularly over the two-way radio. 76The Applicant explained that a difficult work environment existed in the Fire, Safety and Security Department of Fairfield Hospital. He pointed out that the concerns he expressed in his statement in reply have been known by SWSLHD for some time. He relied on the decision in Sharma v Sydney South West Area Health Service (2006) NSWIRComm 1157 [at 33 - 40] to demonstrate how entrenched the culture has been at that hospital for a sustained and lengthy period of time as the Security Officers referred to in the Sharma proceedings were still employed by the Respondent as permanent Security Officers. 77The Applicant submitted that he had written to the Respondent requesting reinstatement and asking for a meeting with management. His requests for reasons for termination were refused. He was met "with a wall of silence and a wall of ignorance". He was denied an opportunity to meet with the Respondent and provide a defence or explanation. 78The Applicant pointed out that his name was placed on the Service Check Register when he was initially dismissed from Hornsby Hospital but was later removed following the decision of Ritchie C. His name has remained removed. 79The Applicant quoted from the NSW Health Annual Report for 2011-2012. He submitted that the Ministry of Health, since 2011, acts as overseer of the performance of the local health districts who operate under individual service agreements. Each local health district has its own Chief Executive, a ward, its own separate Australian Business Number, and decisions are made locally. He did not hold three different jobs with one employer. 80The Applicant relied on the judgments in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) IRCA 15 (in relation to the practicality of re-employment) and Antonakopoulos v State Bank (1999) 91 IR 385 (in relation to procedural fairness). 81In conclusion, the Applicant stated that the dismissals had cost him dearly. The proceedings before Ritchie C had cost him over $30,000. The HSU had assisted him in funding the appeal before the Full Bench. He did not have the finances to pursue the matter before the Court of Appeal as he did not have the $20-$25,000 he was quoted for legal fees. Those expenses have all been in relation to one matter alone at Hornsby Hospital - a matter over which he had not been contacted by NSW Police, arrested, or charged; an incident which involved preservation of his own safety and that of others. He pointed out that the Respondent could have opted for a risk assessment or further training or additional supervision and he would have participated. Instead, the Respondent went straight to termination based on a flawed interpretation of the Hornsby Full Bench decision. 82Mr Bull submitted that the "octopus-like nature" of the Respondent was problematic. "It is an amorphous organisation. it includes a number of local health districts, specialist health networks and the ministry." 83The Respondent submitted that the application should be dismissed because the Applicant's employment had been terminated for a valid reason. The Respondent provided the following reasons for taking that position: (a) The Respondent did not dismiss the Applicant as a result of the Hornsby Appeal Full Bench decision. The reason he was dismissed was because he struck a patient on 7 June 2011 while he was working at another facility operated by the Respondent thereby breaching a core requirement of his position at the Fairfield Hospital facility - that he possess good judgment. It was pointed out that the Respondent must have confidence that he will conduct himself appropriately and have proper regard to patient safety. The system is run for patients and not for security officers and the Respondent cannot harbour a security officer who is just going to react and hit a patient; (b) The process adopted by the Respondent was fair and appropriate. Whilst it was acknowledged that the sequence of events that led to the termination were complex, the Applicant cannot plead ignorance as he was intimately involved in the various hearings and appeals and was clearly aware of the reason for his termination and the context in which the termination took place; (c) In his email to Paul Miles, the applicant undertook not to lodge a section 84 application in relation to his "termination" from Fairfield Hospital if he was given an undertaking that a reinstatement outcome in the Hornsby unfair dismissal case would apply to his employment generally with the Respondent; (d) Ms Amanda Larkin forwarded correspondence to the Applicant providing such an undertaking; (e) The Respondent complied with the request by the Applicant's solicitors to reinstate the Applicant at Fairfield Hospital following his successful application before Ritchie C in the Hornsby unfair dismissal application; (f) The Applicant did not advise the management of Fairfield Hospital that the Respondent had lodged an appeal against the Ritchie C decision and therefore the Applicant continued to work at Fairfield Hospital after the granting of the Stay by his honour, the President. The Respondent pointed out that Health is a very large sector of the public sector in New South Wales with over 100,000 employees therefore the District Services do not necessarily always talk to each other and there is bound to be some miscommunication between them which is not surprising given the size and complexity of the Respondent's operations; (g) The Hornsby appeal Full Bench considered the practicality of the reinstatement and held, ultimately, on 5 November 2012, that the reinstatement of the applicant was impractical and could impair the respondent's duty of care to its patients. It appears, from a plain reading of the decision, that the incident arose out of a "reflexive and defensive gesture" that no training could prevent. The Respondent cannot guarantee that it would not happen again given its instinctive and reflexive nature; (h) The clear statement of the Full Bench concerning the factual and legal clarification as to the existence and significance of the impugned conduct caused the applicant's termination; (i) The Respondent pointed out that the practical effect of that decision was that it had lost faith in the Applicant insofar as he could not be relied upon to react appropriately in relation to a fundamental aspect of his work at Fairfield Hospital as the function he had performed at Hornsby Hospital was substantially similar to the function performed at Fairfield Hospital; and (j) The Applicant is still maintaining that his actions were justified as self-defence (a defence which, in criminal law, basically allows someone to strike another person lawfully). He simply does not get it. He still believes that he is justified in using physical force in an aggressive manner on patients. He has not expressed, during these proceedings, any insight or contrition for his actions at Hornsby Hospital on 7 June 2011. That omission is singularly significant and unhelpful to the Applicant's case and reinforces the correctness of the Hornsby Full Bench decision. The Commission should be concerned about his attitude and his likely future conduct toward vulnerable patients. 84The Respondent noted that both the Hornsby Appeal Full Bench and Ritchie C were mindful of the principles regarding conduct involving assaults: New South Wales Nurses' Association (on behalf of Colin Prior) and the South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164: It is a well established and well known rule of conduct that an assault by an employee of a person under institutional psychiatric care will not be tolerated and that employees who breach this requirement will not be retained in employment. See also Samad v Public Service Board (New South Wales) (1983) (NSW Court of Appeal) 5 IR 464, at 466. 85The Respondent did not accept the Applicant's statement that his termination came as a "complete surprise" on 16 November 2012. It was pointed out that the Applicant was intimately involved in the complex sequence of events that have been described above and had a clear and complete understanding of the reason for his termination. The Applicant has had "Rolls Royce industrial justice in terms of determining his future as a security guard in New South Wales Health" in that the matter was investigated through the normal complex and thorough internal bureaucratic process, the NSLHD's decision was scrutinised by a single Commissioner and then by a Full Bench of this Commission. 86There was an agreement between the parties about the application of the outcome of the Hornsby application. That would necessarily translate to mean the outcome of that application once all appeals have been exhausted. The Agreement between the parties concerned the prospect of the Applicant being reinstated to his previous position at Hornsby hospital. It did not concern the more esoteric issue as to whether the dismissal was "harsh, unjust or unreasonable", a finding made by Ritchie C based on a consideration of the Applicant's overall conduct and his view that it did not justify termination. That finding was upheld by the Hornsby Appeal Full Bench, however, it went on to order 26 weeks' pay. At that time the Applicant was unemployed and had limited job prospects as a result of being placed on the Service Check Registry. The termination under consideration in these proceedings is for the same conduct. The Applicant has already received the maximum 26 weeks' pay at his full time rate as compensation. 87The Applicant, as a result of that agreement, did not file a section 84 application in relation to his first dismissal from his casual employment position at Fairfield Hospital. The Respondent complied with the terms of that agreement by reinstating the Applicant after the Ritchie C decision was handed down and prior to an appeal being lodged by the Respondent. It was pointed out that it was the Applicant who disregarded his undertaking by filing this application after the Hornsby Appeal Full Bench decision was handed down in circumstances where he had specifically contracted out of his ability to dispute the termination due to that agreement. 88It was argued that the agreement may be considered to be a contract, a binding agreement, between the parties in that there was an offer made by the Applicant which was subsequently accepted by the Respondent and there was consideration in that the Applicant has foregone the opportunity to lodge an unfair dismissal claim. The parties had entered into the binding agreement knowing that there were certain results at the end of the Hornsby application - in other words, there was knowledge, awareness and reasons. 89The Respondent pointed out that there was no dispute between the parties that the Respondent in this matter is the Director General of Health; that the work the Applicant performed at both Hornsby and Fairfield Hospitals were at the same award classification; and that the work involved substantially similar functions. 90In relation to the Employer being the one and the same employer on all three sites that the Applicant was engaged on, the Respondent pointed out that the effect of the 2006 PSELA Act amendments to the PSEM Act was to clarify that persons employed what were then Area Health Services were employees of the Crown in the right of the State of New South Wales thereby putting beyond doubt that persons employed by statutory corporations (such as the Area Health Services) were New South Wales Crown employees. 91In addition, section 115 of Chapter 9, Part 1 of the HS Act provides that the NSW Health Service consists of those persons employed under that Part of the HS Act by the Government of New South Wales in the service of the Crown. Section 116 notes that the Director General of the Ministry exercises the employer functions on behalf of the Government of New South Wales in relation to the staff employed in the NSW Health Service albeit a right of delegation of many employment functions is exercised by the Director General. 92It was submitted by the Respondent that the Applicant, in any event, recognised that he had one real employer in the three positions he held, hence, his belief that he could rely on an undertaking that the decision in the Hornsby matter would be generally applied. 93It was submitted by the Respondent that it is appropriate that the findings of the Hornsby Appeal Full Bench, in relation to the inappropriateness of the Applicant performing security work and the general duty of care of the Respondent, be applied generally. If the Respondent had, in relation to the Applicant's continued employment at Fairfield Hospital, disregarded the clear statement made by the Bench, then his continued use in a patient contact security role would impair the Respondent's duty of care that it owed patients. 94The Respondent advised that the Applicant undertook general security duties at Fairfield Hospital. It was confirmed that Fairfield Hospital does not have a dedicated mental health unit but it does have an Emergency department, an aged care facility (which includes geriatric patients, patients with dementia and people with challenging behaviour). It was pointed out that a fundamental function of a Security Officer is to assist clinical staff to de-escalate situations involving patients, including patients with mental health issues. 95The Respondent pointed out that the Applicant had not progressed an appeal against the Hornsby Appeal Full Bench decision in the Court of Appeal. 96Finally, the Respondent pointed out that the termination cannot be categorised as a summary dismissal of the Applicant. The Applicant's conduct at Hornsby Hospital had been investigated by the Respondent prior to his dismissal from the relevant Service. His conduct was then scrutinised by Ritchie C in front of whom the Applicant gave evidence and was later scrutinised by a Full Bench of this Commission. In other words, there was an extremely thorough and fair process undertaken prior to his eventual dismissal from Fairfield Hospital. As the termination flowed from the undertaking agreed between the parties and a clear decision of the Full Bench of this Commission, there was no necessity for a show cause process to be adopted and, in fact, such a process would have been redundant. It was pointed out that the Respondent could have easily done nothing and merely stopped rostering the Applicant. Relevant Legislative Provisions 97In 2006, the Public Sector Employment Legislation Amendment Act 2006 (the PSELA Act) made a number of amendments to the Public Sector Employment and Management Act 2002 (the PSEM Act) to clarify that persons employed within what was then called Area Health Services were employees of the Crown in the right of the State of New South Wales thereby putting beyond doubt that persons employed by statutory corporations were New South Wales Crown employees (per section 4B of the PSEM Act). 98Chapter 9, Part 1 of the NSW Health Services Act 1997 (the HS Act) provides that the NSW Health Service consists of those persons employed under that part of the HS Act by the Government of New South Wales in the service of the Crown (per section 115). 99In addition, the HS Act notes that the Director General of the Ministry is the employer of all staff and exercises the employer functions on behalf of the Government of New South Wales in relation to the staff employed in the New South Wales Health Service (s 116 (3) albeit employment functions may be delegated to any person (per section 21 of the Health Administration Act 1982): NSW Health Services Act (1997) 116 Employment of staff generally (2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff. (3) The Director-General may, subject to subsection (2), exercise on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service. Note: The Director-General's functions under this or any other A ct may, under section 21 of the Health Administration Act 1982 be delegated to any person. Service Check Register 100The Service Check Register (SCR) is an electronic state-wide reference database. It contains records of actions taken during, or at the conclusion of, an investigation into a serious disciplinary matter. 101Compliance with the Policy Directive relating to the Service Check Register for NSW Health Services is mandatory for NSW Health and is a condition of subsidy for public health organisations. 102All NSW Health Services are mandated to create a record in the SCR when any one of a number of actions are taken by a Health Service including where a full-time or part time staff member (permanent, temporary or casual) is dismissed as a consequence of a disciplinary process. That record must be removed when the decision to dismiss is overturned (section 3.5). 103All full-time, part-time, temporary and casual staff of the NSW Health Service and all visiting practitioners must be checked against the State Service Check Register as part of a recruitment process or when finalising a disciplinary process. A Health Service must, prior to making an offer of employment or an appointment, conduct a check of the SCR to determine if the preferred applicant(s) is on the register. If they are, then the Health Service must contact the nominated person who created that record to obtain details about the matter and to determine if these matters are relevant to the current position. 104It is noted that the Policy Directive provides, under the heading "Policy Statement, that "Inclusion on the register does not automatically preclude a person from employment or appointment" and that its role is "to alert staff involved in recruitment or in disciplinary processes to the existence of previous matters that may be relevant when making an offer of employment or appointment or when finalising a disciplinary process". 105The Applicant was employed on a full-time basis by the NSLHD and on a casual basis by the WSLHD and, relevantly, by the SWSLHD. A reading of the Policy Directive would indicate that the latter casual employments are considered to be secondary employment. 106The Policy Directive quite clearly recognises that: 5. ... There will be instances where one Health Service is able to mitigate a potential risk by formally supervising a staff member... however another Health Service may be unable to provide adequate levels of supervision and is therefore unable to mitigate the same risk. Because one Health Service has suspended, terminated, dismissed or changed the duties of a staff member ... and that person's name is on the SCR, it does not mean another Health Service should automatically suspend, terminate, dismiss or change the duties of the ... staff member. However, all Health Services where that individual works need to be aware of the action taken and must conduct a risk assessment to determine if mitigation strategies are required. 5.2 Any Health Service/workplace notified ... must conduct a risk assessment to determine whether the staff member ... poses an ongoing risk....and consider matters such as the following: the safety of patients; the safety of other staff;... the reputation of the organisation... 6. A Health Service must not use the information on the SCR to exclude a person automatically from employment or appointment. CONSIDERATION The Ritchie C Decision 107The incident at Hornsby Hospital was described thus in the Ritchie C decision: 6. .... At approximately 11.00 am Dr Tina Kastowsky approached [the Applicant], Mr Dave Edwards another security officer and some nurses for assistance in the taking of blood from a scheduled patient (CB). [The Applicant] said that after consulting with the nurses Dr Kastowsky made the decision to take the blood sample in the patient's bedroom with the patient in a seated position. There were six persons in the room. They being Dr Kastowsky, Nurse James Wall, Nurse Mark Campbell, Nurse Steve Read, Security Officer David Edwards and the applicant. Each person held an arm with Nurse Campbell standing at the doorway and the applicant kneeling down and holding the patient's legs. 7. The applicant stated that he was aware that the patient CB had a previous history of aggression and unprovoked violence which had resulted in serious assault on staff. 8. The patient became agitated and partially got her arm free from Mr Edwards with the applicant stating he sought to assist Mr Edwards and momentarily took his arms off the patient's legs. The patient then kicked out at the doctor before he reapplied pressure on her legs. 9. The patient told the applicant to take his hands off her legs but he maintained the pressure. She then suddenly lunged forward towards the applicant and tried to bite him with her mouth wide open. The applicant said that he pulled his head away and with his open palm of his right hand he struck the left side of her face with a low degree of force. 10. He said that it was a reflex defensive action. He then said to her "Don't try and bite me". 108Ritchie C found that: 109. ...the response by the applicant in slapping the patient's face was an instinctive reaction by the applicant. I would not classify it as wilful or premeditated. 110. It is also my finding that taking into consideration what I have expressed above, I would categorise his response as being self defensive in the circumstances. It is my finding that the applicant did not assault the patient on that day. I accept the submission that he may have struck the patient with more than minimal force but with an open hand on the one occasion and not with a closed hand. It is my finding that he sought to stop the patient from biting him whilst the doctor was in the midst of drawing blood from the patient's arm... 114. In summary it is my finding that the termination of the applicant was harsh, unjust and unreasonable. The respondent has placed the applicant's name on the Service Check Register which it was submitted by the applicant would result in him being unlikely to ever be employed in the Public Sector Health industry. As part of his claim he seeks that his name be removed from such register. Reinstatement is the primary remedy available under the Act, following a finding that the applicant had been unfairly dismissed. Submission was made by the respondent of the applicant's attitude of blaming others, not accepting any responsibility for what occurred and stating words to the effect of "nobody got hurt". That last comment has given me some concern with respect to his attitude towards vulnerable patients but I have also noted that he apologised to Doctor Kastowsky for his action. In summary I am of the view that reinstatement of the applicant is not "impracticable" and that he return to work for the respondent in the role of a security officer. The Full Bench Decision 109The Hornsby Appeal Full Bench, in considering the practicality or otherwise of the reinstatement of the Applicant, noted: 46. Nothing in this conclusion derogates from the findings of the Full Bench in Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 at [53[ - [54] as to the significant duty of care held by the employer towards vulnerable patients, particularly those in mental health care. Our conclusion turns upon the involuntary or reflexive nature of the respondent's action.... [Emphasis added] 56. Even though the striking of the patient was reflexive and defensive, it is apparent that the appellant has lost confidence in the respondent to act appropriately in the future. In the circumstances, we have concluded reinstatement is impracticable. The appellant believes the respondent cannot be relied upon in what is sometimes a provocative environment that requires the utmost sensitivity and restraint on the part of those charged with the care of patients. There is a reasonable basis for that belief. We are satisfied the respondent's reinstatement could impair the appellant's duty of care to its patients. [Emphasis added] 57. We have considered the option of re-employment, but, in this case, we face the same difficulties in providing that as a remedy as we do with reinstatement. Accordingly, we have decided compensation is the appropriate remedy. 110The Hornsby Appeal Full Bench, in considering the amount of compensation to be awarded to the Applicant were swayed by the fact that the Applicant's name had been placed on the Service Check Register. The Bench noted: 58. In considering the amount of compensation to be awarded we note that the respondent's name has been placed on the "Service Check Register". We were informed that the entry of the respondent's name on the Register, which indicated he had been dismissed, "would probably prohibit future employment with other Local Health Districts". 59. In exchanges with senior counsel in the course of proceedings we were advised that even if the Full Bench held that the Commissioner did err in finding the dismissal of the respondent was harsh and unreasonable, but that the Full Bench upheld the second limb of the appellant's case and found reinstatement was impracticable, the respondent's name would remain on the register. 60. In those circumstances the respondent's opportunities of finding employment in the public health sector, where he has been working since 2009, will be severely curtailed.... 111The Hornsby Full Bench conducted its hearing on 5 November 2012 and issued its decision on 13 November 2012. The Full Bench noted that, In upholding the second limb of the NSLHD case and finding that reinstatement and re-employment were impracticable, Mr Hargreaves' name would remain on the Register and his opportunities of finding employment in the public health sector would be severely curtailed. It was in those circumstances that the Full Bench awarded the maximum compensation available under the Act. 112It is noted, however, that the Applicant's name has been removed from the Service Check Register and remains removed. It is unclear from the Applicant's evidence when that removal occurred. Identity of the Employer 113The Respondent contended that the Applicant was employed by the Director-General of Health and had worked at its administrative divisions which are known as Local Health Districts. The Applicant contended that he was employed by the South Western Sydney Local Health District. 114Mr Miles gave uncontradicted evidence that an offer of casual employment as a Security Officer on call at the Hospital was made to the Applicant on 27 January 2010. The letter of offer, which was tendered in the proceedings, was signed by Ms Helen Legakis, Manager, Recruitment Unit, for and on behalf of the Director-General, NSW Department of Health. The letter confirmed that the Applicant, as part of the employment process, had completed the Position Demands Checklist indicating his ability to undertake the full range of duties for this position. Ms Legakis pointed out in that letter to the Applicant that there may be times when, due to changing business needs, SSWAHS may change some of the duties, responsibilities and work locations either permanently or temporarily. (The attachment was not tendered with the letter of offer and it is therefore unclear what is meant by changes in work locations.) Ms Legakis went on to refer to the requirement to notify the Director-General of any disciplinary action proposed by an Area Health Service for endorsement, rejection or variation. Ms Legakis pointed out that "The protection of patients, clients and children is a paramount consideration in determining what action will be taken." 115The Applicant accepted the terms and conditions of that offer by appending his name to the document on 23 February 2010. He generally worked 1-2 shifts per week at Fairfield Hospital. 116During cross-examination, the Applicant insisted that he did not work for New South Wales Health but worked for three "very separate, very different" local health districts. The Applicant was shown a copy of an email forwarded to all staff by Dr Mary Foley when she was first appointed as Director-General. The Applicant acknowledged that he had responded with an email dated 12 April 2011 to which he had copied Mr Paul Miles and Mr Ned Veljovic. He had congratulated Dr Foley on her appointment and made a suggestion that the uniform for Security Officers be standardised, just as occurs with Nurses, Cleaners, etc. across all "departments" of the NSW health system. He denied that he considered Dr Mary Foley, the Director-General, to be his ultimate employer: I had three separate employers. I was working under the assumption back then. What I know now is completely different. It's not a matter of me changing my view. The simple fact of the matter is I was ignorant back then and now because of all the research I've done I know now it's different. 117It is noted that when Ms Amanda Larkin, Chief Executive, SWSLHD, wrote to the Applicant on 21 September 2011 and advised of his consequential dismissal from Fairfield Hospital, she advised as follows: As you were terminated on 14 September 2011, it follows that the Director General, NSW Department of Health terminated your employment from that date and consequently you are also no longer employed at Fairfield Hospital.[emphasis added] 118It is also noted, from the Policy Directive appended to the Applicant's statement (published on 30 January 2009), attaches roles and responsibilities to, amongst other classifications, Chief Executives of the Local Health Districts, in relation to the observance of the principles and requirements of that policy. Local Health Districts are required to check all full-time, part-time, temporary and casual staff of the NSW Health Services... as part of their recruitment process or prior to finalising actions arising out a of disciplinary process. The Applicant is no longer on the Service Check Register and therefore it is not an issue in these proceedings. However, it is relevant in that it is the Director-General of Health who is issuing directions to the Local Health Districts in relation to recruitment and disciplining of staff - a hallmark of an employer. 119It is further noted that it was not disputed that statements of duties are produced in consultation with the Ministry for Health and are generic in nature. 120Finally, it is noted that when the Applicant wrote to Mr Miles offering to enter into an agreement regarding continued employment at Fairfield Hospital pending the outcome of the Hornsby application, he acknowledged that he had been employed by NSW Health: As an act of good faith I will not lodge an unfair dismissal claim against SWSLHD as a precautionary measure and will rely on the fact that if I am able to overturn my recent termination at NSLHD at the upcoming Industrial Relations Commission of NSW conciliatory hearing that this will suffice to enable my automatic re-instatement to SWSLHD as a Casual Security Officer as I would no longer be terminated by NSW Health. [Emphasis added] 121Having considered all of the evidence in this regard, I find that, by virtue of s 116 (3) of the NSW Health Services Act 1997, the Applicant is deemed to be employed by the Director-General of the Ministry. Additionally, I find that: - the Applicant was or should have been aware of that fact because he was provided with an offer of employment at its South West Sydney Local Health District division by the Director-General of Health; - the Applicant accepted that offer by appending his name to the letter - he was engaged on work within three of the Divisions of the Ministry of Health. The full-time work he had at NSLHD was the principal employment and the casual work undertaken with both WSLHD and SWSLHD being secondary employment; - his ultimate termination from employment with the SWSLHD was not because of his inclusion on the Service Check Register as his name had already been removed from that Register. His ultimate termination, as Mr Miles advised him, was because of the findings of the Full Bench in relation to the impracticality of reinstatement/re-employment. 122Even if the employer had been the SWSLHD, can the work the Applicant undertook at Fairfield Hospital be distinguished from the work he undertook at Hornsby Hospital sufficiently to arrive at a finding that the Applicant can be reinstated to the Fairfield Hospital? 123Mr Miles, Director of Corporate Services and Finance, Fairfield Hospital, provided undisputed evidence that the Hospital, which has 220 beds, is classified as a major metropolitan hospital, with a very busy emergency department. He said that the demands placed on its security personnel were varied as a result of the very wide variety of persons who use the hospital and related facilities. 124The Hospital also has wards dedicated to geriatric patients and patients with drug and alcohol problems. In addition, there is, on the hospital campus, a dedicated geriatric and rehabilitation facility known as "Braeside Hospital" which has one dedicated psycho-geriatric ward and the remaining wards are dedicated to palliative care and geriatric rehabilitation. A service agreement exists between both hospitals to the effect that Fairfield Hospital's security services are used by Braeside Hospital. 125Mr Miles stated that security officers employed on campus are routinely asked to assist in dealing with confronting behaviours exhibited by patients and/or their family members within both Fairfield Hospital and Braeside Hospital. 126Mr Miles explained that Fairfield Hospital is a 24-hour facility and therefore security officers are rostered at all hours of the day on any one of three shifts (Day shift - 6am - 6 pm; Night shift - 6 pm - 6 am; and a swing shift from 6 pm to 2 am. The Security guards are generally unsupervised and the Hospital relies on their judgment, maturity, the ability to de-escalate difficult situations; and professionalism to carry out their duties with minimum supervision as an important function of their work is assisting hospital staff with aggressive and agitated persons. These persons can be patients who may simply be distressed or suffering from some cognitive disorder or a family member. The Respondent must be able to trust that a security guard will respond appropriately when called to assist de-escalate a situation. 127The Applicant confirmed that he had to deal with patients in the dedicated geriatric and rehabilitation facility known as Braeside Hospital. He also confirmed that the facility has a dedicated psycho-geriatric ward. 128Mr Veljovic, Fire Safety and Security Manager at Fairfield Hospital, who was called by the Applicant to give evidence on his behalf, also confirmed that the hospital does get mental health patients either self presenting or brought in by members of their family. He pointed out that there are occasions when mental health patients present at the hospital but the staff only become aware of their mental health status when they bring up their files. He opined that at least 80% of the clients visiting Corella Lodge, the detox unit on the campus that the Security Officers are also required to service, may and do have mental health issues. 129I accept that the fundamental duty of a Security Officer is to assist clinical staff to de-escalate situations involving patients, including patients with mental health issues. I accept the submission made by Mr Bull that the precise reason why Security Officers are employed in hospitals is "to ensure ... the normal course of human behaviour does not pan out, that the situation is de-escalated, that the person is calmed and restrained" because "mental health patients are people who are distressed, who display abhorrent and unpredictable behaviours" 130I note that the Applicant did not indicate any understanding of the gravity of his actions at Hornsby Hospital and did not express proper contrition until Mr Bull pointed that out in final submissions. In reply, Mr Hargreaves agreed that there was no justification for doing what he did and had taken it on board for the future. 131I accept the Respondent's concerns, recognised by the Full Bench, that there is reasonable basis for the belief that the Applicant cannot be relied upon in what can sometimes be a "provocative environment that requires the utmost sensitivity and restraint on the part of those charged with the care of patients". 132It must be pointed out that it was not disputed at any time that the Applicant had performed his duties at Fairfield Hospital in a diligent manner and made several significant contributions to the administration of the Safety Department. There were other matters that had occurred over time and about which the parties reserved their rights to address the Commission if the matter proceeded beyond the merit argument. Nevertheless, the support he had from senior management of that Health District was evidenced in the assistance they tried to render to him.. 133Nevertheless, I accept that the finding in the Hornsby Appeal Full Bench is equally applicable to the same Employer at Fairfield Hospital, that is, the Applicant's reinstatement could impair the Respondent's duty of care to its patients. The Mutual Undertaking 134The mutual undertaking entered into by the parties in relation to his return to work at Fairfield Hospital following his first dismissal featured a great deal in these proceedings and ought to be addressed in the decision. 135Ms Amanda Larkin, Chief Executive, SWSLHD, wrote to the Applicant on 21 September 2011 and advised of his consequential dismissal from Fairfield Hospital as a result of his termination by the Director-General of Health following the Hornsby incident: As you were terminated on 14 September 2011, it follows that the Director General, NSW Department of Health terminated your employment from that date and consequently you are also no longer employed at Fairfield Hospital. 136In response, the Applicant forwarded an email to Mr Paul Miles, Director of Corporate Services, Fairfield Hospital, on 30 September 2011 indicating that, as an act of good faith, he would not lodge a separate unfair dismissal application in relation to his "termination" as a casual security officer at Fairfield Hospital and that he would rely on the undertaking that if he were reinstated as a result of the "Hornsby application" it would apply to his employment generally with the Respondent. The email stated in part: As an act of good faith I will not lodge an unfair dismissal claim against SWSLHD as a precautionary measure and will rely on the fact that if I am able to overturn my recent termination at NSLHD at the upcoming Industrial Relations Commission of NSW conciliatory hearing that this will suffice to enable my automatic re-instatement to SWSLHD as a Casual Security Officer as I would no longer be terminated by NSW Health. [Emphasis added] 137Ms Amanda Larkin, noted in correspondence to the Applicant dated 10 October 2011 that, should the Applicant be reinstated as a result of the Hornsby application, that he would also be reinstated to his casual security officer position at Fairfield Hospital. The correspondence relevantly reads: I advise if you are successful in your unfair dismissal application against Northern Sydney Local Health District resulting in your reinstatement at that local health district, then South Western Sydney Local Health District will agree to your reinstatement as a casual security officer at Fairfield Hospital. 138The Solicitors for the Applicant, Adams & Partners, wrote to Paul Miles on 7 June 2012 seeking his reinstatement to his casual position in accordance with that undertaking. The Respondent complied with its undertaking and reinstated the Applicant. 139The Applicant gave evidence that it did not miss his attention that the Respondent's undertaking related to "reinstatement" rather than the phrase he had used in his offer which was "overturn my termination". He said that, while the terms of the undertaking did not meet his requirements, he did not wish to unnecessarily escalate matters, possibly harm his good relationship with that Health District and, in addition, face the burden and cost of pursuing another application before the Commission. He had accepted the undertaking without demur and has to accept its consequences. 140The Applicant insists that his termination had been overturned. His termination had been found to be harsh, unjust and reasonable by Ritchie C. That finding was not disturbed by the Full Bench. Nevertheless, the Full Bench did not uphold the remedy of reinstatement awarded by Ritchie C. Rather, the Full Bench maintained the dismissal and awarded maximum compensation for the reasons set out above. 141It cannot be found that the Applicant is unsuitable for employment at one hospital but be suitable for employment at another in the circumstances described above where the work in both hospitals are similar. 142The Applicant had entered into a conditional reinstatement - an offer which he had made himself, was amended by the Respondent, and ultimately accepted by the Applicant. 143Even if the SWSLHD were a separate employer for the purposes of these proceedings, the Applicant had, nevertheless, given an undertaking that if he was not successful in obtaining reinstatement at Hornsby Hospital, he would not pursue an unfair dismissal claim against SWSLHD. The Applicant was not successful in gaining reinstatement to Hornsby Hospital and had voluntarily given up the right to pursue the present claim. 144In conclusion, I find that the Applicant's termination by the Director-General of Health from his employment at Fairfield Hospital was neither harsh, nor unjust nor unreasonable. ORDERS 145The proceedings in Matter No IRC 1215 of 2012 are 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: 25 October 2013