Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW and Sydney Local Health District; ; Health Services Union, New South Wales (o/b Mohammed Sarower Siddique) and Sydney Local Health District [2016] NSWIRComm 1033 Hearing dates: 20 – 22 January 2016 inclusiveSubmissions - 22 March 2016 Decision date: 02 November 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim upheld. Compensation awarded. Catchwords: Dispute Notification-threatened dismissal-conciliation unsuccessful-dismissal-Unfair Dismissal claim filed-Applicant in breach of Code of Conduct-Self-defence, damage to property not an issue-Visitor was a patient to the hospital-NUM required to be obeyed in relation to how patient is to be managed-Dismissal not unreasonable or unjust-Dismissal harsh-compensation awarded. Legislation Cited: Industrial Relations Act 1996 Health Services Act 1997 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Sydney Local Health District (Respondent) Representation: Mr G O'Donoghue (Applicant) Mr A Britt, Counsel (Respondent) File Number(s): 2015/374338 (formerly IRC 798 of 2015)2015/374358 (formerly IRC 971 of 2015) DECISION 1. The Health Services Union, New South Wales (the HSU), on 2 September 2015, filed a notification advising of a dispute with Sydney Local Health District (the Respondent). The HSU sought the assistance of the Commission in relation to an unsuccessful attempt to obtain a copy of CCTV footage of an incident involving its member, Mr Mohammad Sarower Siddique, and a person described as "intoxicated and aggressive" (2015/374338 (formerly IRC 798 of 2015)). Mr Siddique had been asked to show cause, by 17 September 2015, as to why his employment should not be terminated. 2. On 13 November 2015, an unfair dismissal claim, pursuant to section 84 of the Industrial Relations Act 1996 (the Act) was filed by the HSU in relation to the alleged unfair dismissal of Mr Siddique on 23 October 2015 (2015/374358 (formerly IRC 971 of 2015)). Overview 1. Mr Siddique commenced employment with the Respondent as a "temporary" full-time Security Officer (SO) in April 2011. He became a permanent employee on or around July 2013. He was based at Royal Prince Alfred Hospital (the RPAH). 2. Mr Siddique was involved in an incident in the Emergency Department (the ED) of RPAH at 5.30 pm on 11 May 2015. A person, who for present purposes, will be described as a "visitor" was injured while being escorted by Mr Siddique and another security officer, Mr Nikola Kuzmak. Mr Andrew Figurka, Nursing Unit Manager (NUM) of the Emergency Department, alleged that the visitor was "pushed by security officers, stumbled and fell to the ground". The visitor was admitted as a patient and released the next day following investigations and monitoring overnight. 3. Management advised both Security Officers, in separate correspondence dated 15 May 2015, that a team had been commissioned to investigate an allegation that excessive force was used by those Officers in response to an aggressive visitor resulting in an injury to the said visitor. Both were advised that they would be restricted in their duties pending the outcome of the formal investigation. 4. The said visitor had a history of aggressive behaviour at RPAH. He had attended the hospital on a number of occasions as his partner was an in-patient and there had been a number of issues with the visitor which necessitated security staff involvement. 5. Mr Siddique participated in the investigation. On 26 August 2015, he received correspondence informing him that the investigation had been completed and that the General Manager, Ms Deborah Willcox, had accepted the findings of the investigators that: a. Security Officers had attended the ED on 11 May 2015 in relation to a call from an Administration Officer who felt the patient was aggressive and intoxicated; b. Nursing staff in the ED had not requested assistance from the Security Department as they were successfully managing the visitor to be triaged; c. The decision to take the visitor out of the ED was made by Mr Siddique prior to attending to the patient; d. Mr Siddique should have sought specific direction in reaction to the decision by nursing staff to have the patient triaged; e. There was no need to physically hold the patient whilst escorting him outside the ED with the assistance of Mr Nikolas Kuzmak, another Security Officer; f. The behaviour of Mr Siddique after it was clear that the patient was injured was of grave concern as he had attempted to get the patient off the ground even though he considered that the patient had blacked out; g. Mr Siddique used excessive force in deliberately pushing the patient. As a consequence of the injuries he sustained from Mr Siddique's actions, the patient was admitted overnight to the Hospital; and h. Mr Siddique's conduct was in breach of the NSW Health Policy, including the NSW Health Code of Conduct and Policies. 1. As was requested of him, Mr Siddique wrote to the Respondent by 17 September 2015 to show cause why his employment should not be terminated. 2. Mr Siddique was terminated by correspondence dated 30 October 2015. In that correspondence, it was pointed out that the members of the nursing staff were successfully managing the visitor to be triaged when he made a unilateral decision, without seeking specific direction, to take the visitor out of ED. The correspondence stated: Not only did you act in contravention of the nursing staff directions by taking the visitor outside of the Emergency Department, with no need to physically hold him, you effected an act of aggression in pushing the visitor who sustained a serious injury requiring him to be admitted overnight as a patient…. There was no basis for you to push the visitor and with reference to the information you have provided, your actions were punitive in nature. There was no unintended or defensive response in your actions towards the visitor but rather a deliberate and wilful act of aggression on your part…. 1. It was held that Mr Siddique's conduct and behaviour demonstrated a fundamental breach of what was expected and required of a Security Officer within the Local Health District which has mandatory obligations under the Health Services Act 1997 [at s119] to have paramount consideration for the protection of patients, clients and children in relation to disciplinary matters. 2. Mr Siddique was terminated for misconduct and breach of Policy, including the NSW Health Code of Conduct effective from 23 October 2015 and was paid one week's pay in lieu of notice. 3. Mr Siddique was advised that he has been placed on the NSW Health Service Check Register. 4. Mr Siddique is seeking reinstatement to his former position or monetary compensation. He is not seeking re-employment to another position. The Allegations 1. The letter of termination set out the grounds for a misconduct finding as follows: 1. Taking the visitor outside the ED when he was being triaged by nursing staff; 2. Physically holding the visitor when taking him outside; 3. Using excessive force in deliberately pushing the visitor over; 4. Putting the visitor at risk of further injury when he tried to pick him up off the ground when he appeared to be unconscious; and 5. The conduct and behaviour were in breach of Policy and Code of Conduct. The Evidence 1. Conciliations proceedings failed to resolve the dispute/claim and the matter was listed for hearing on 20 – 22 January 2016 inclusive and 22 March 2016 during which time evidence was received from: Mr Mohammed Sarower Siddique Applicant Ms Dee McNamara Health Promotion Officer Mr Malcolm Duguid Security Officer – RPAH Ms Heidi Pangallo Registered Nurse - RPAH Mr Andrew Figurka Registered Nurse – RPAH Mr Malcolm McClelland Deputy Director of Workforce Services, Sydney Local Health District Ms Gina Finocchiaro Director, Workforce Services, Sydney Local Health District 1. Also tendered and played to the Commission and the witnesses during the proceedings was CCTV footage of the incident. 2. Consent Prohibition and Restriction Orders were sought and granted in relation to the identity of the visitor/patient and his patient partner. Previous Incidents 1. On 8 May 2015 the said visitor attended the ED at RPAH at 3.40 pm with his partner and became highly aggressive towards security officers. Mr Siddique stated that the visitor had threatened to return and get him and Security Officer Morales. He stated that Mr Morales had handled the incident very tactfully and the visitor left as directed. 2. He was aware that Ms Nicola Hall from RPA Pharmacy reported later that day that she had overheard the visitor on the telephone to someone asking for guns to shoot the RPAH security officers. Mr Siddique had no direct knowledge of that conversation. 3. The visitor came to the hospital at about 8.20 pm on 10 May 2015. The Applicant was not present as he had worked the day shift. He had no direct knowledge of the incident apart from the debrief he had received. The visitor left the hospital upon being asked to do so. The Nursing and Resource Administration Unit allegedly prepared a warning notice to be served on the visitor in question but he left before it could be served on him. 1. On 11 May 2015, the same day as the incident in question, the visitor came to the ED at 11.30 am and had to be escorted out of the ED by security officers as a result of his aggression towards nursing staff. The Applicant was not on duty at that time. 2. It is noted that none of the reports on the above previous incidents stated that he attacked anyone or punched anyone. Submissions The submissions made by Mr O'Donoghue on behalf of the Applicant may be summarised as addressing the four issues raised in the termination letter as follows: 1. The issue of visitor v. patient was contrived after the termination of employment as the letter of termination referred to the individual as a "visitor" and not a "patient". 2. The visitor had attended RPAH on the three days leading up to the incident on 11 May 2015 to visit his partner who was a patient. The evidence demonstrated a pattern of aggressive and abusive behaviour by the visitor at least from 8 – 11 May 2015 during which the visitor had threatened to get a gun and return to shoot security officers, including the Applicant. 3. On 11 May 2015, he attended the ED in an intoxicated state, slurring his speech and staggering. He was not there to obtain treatment but for the purpose of seeking SO Michael. He had threatened, as confirmed by Ms McNamara, to smash/break the window separating them causing the receptionist to call security twice for assistance. 4. Ms McNamara's evidence clearly indicated that she called the security office twice – once when the visitor made the approach to her and again when she noticed that he had tailgated someone into the ED. It was pointed out that the Applicant had not attended the ED on his own volition – he was directed by the Security Leading Hand, Joe Lahood, to attend the ED to deal with an issue involving the visitor. 5. Ms Pangallo confirmed the evidence of the Applicant that the visitor became agitated when security staff arrived and she had heard him say words to the effect that he will shoot/kill them if they touched him. 6. It was conceded that the visitor had initially been compliant with directions to return to the waiting room. Mr Siddique maintained that, as the visitor was walking towards the ED entry door of his own volition, he turned in an aggressive and threatening manner and started to flail his arms with clenched fists. 7. In accordance with policy, and as a result of his professional training as a Security Officer, the Applicant formed the view that a restraint was needed to prevent the possibility of injury to others. They used choke holds to restrain him. The method used was one in which they had received training and was not considered excessive. The CCTV footage showed that the visitor was struggling with security officers while restrained and his fists were clenched in a threatening manner. 8. The Applicant, cognizant of the need to ensure the health and safety of other visitors and patients to the hospital, and consistent with the Health Policy Preventing and Managing violence in the NSW Health Workplace – a Zero Tolerance approach, and consistent with his training, escorted the visitor outside the ED to calm him down. He did not, at any stage while doing so, receive a direction from nursing staff to stop in the ED waiting area. 9. It was suggested that it was pure speculation or a guess to suggest that the Applicant planted his foot and pushed the visitor as that was not evident from the CCTV footage. Rather, the footage demonstrated that Mr Kuzmak pushed/nudged the visitor causing the visitor and the Applicant to stumble forward out of the clear vision of the camera. 10. It was pointed out that the footage demonstrated that it was Mr Kuzmak who placed his hands against the visitor's right shoulder and pushed. The visitor, already unsteady on his feet due to his intoxication, spun in an anti-clockwise direction to the point that he started to fall backwards. As Mr Siddique demonstrated, he had controlled the visitor's left hand with his own right hand, his right arm in front of the visitor's left arm and then back under the armpit to the left shoulder. Therefore, when the visitor started to fall backwards, Mr Siddique started to fall with him. Mr Siddique planted his foot on the ground to avoid falling over the visitor. 11. It was noted that the CCTV footage demonstrated that the visitor was still resisting and had clenched fists as he was being escorted through the ED waiting room. Despite the Applicant's statement that the waiting room was "full of patients and visitors", it was conceded that not all seats were occupied. Nevertheless, there were some patients and visitors in the area who could have been injured had the visitor decided to escalate the violence if he had been released at that point. 12. Mr Siddique gave evidence that his immediate reaction was to go to the visitor's assistance and help him up not realising that the visitor was injured. Mr Siddique left the visitor to be assisted by the medical staff once he realised the extent of his injury. It was noted that the Applicant had no clinical training. It was erroneous of the investigators to suggest that he had endangered the visitor by assisting him back on his feet. It was pointed out that the Applicant's actions were later described by Ms Finocchiaro as deliberately dragging the visitor. 13. It was submitted that it was Ms Finocchiaro who had breached the Guidelines for the Management of Behavioural Emergencies in the Emergency Department which requires that "ED staff should be mindful that security officers have no formal training in health care and have numerous other duties to perform elsewhere". 14. Mr Siddique maintained that type of intervention was undertaken by security hundreds of times and it was only because the visitor suffered an injury on that occasion that caused them not to be commended for a job well done. 15. The termination letter contended that Mr Siddique had used excessive force in pushing the visitor, contravened directions of nursing staff and tried to pick up the visitor from the ground. The termination letter did not allege that he had used excessive force while escorting the visitor outside of the ED. The Respondent is now relying on CCTV footage to contend that he pushed the visitor over in the absence of any credible eyewitness account. 16. The Applicant relied on ss 7 and 8 of the Protecting People and Property NSW Health Policy which states: 7. The use of restraint of any other person must only occur in an emergency situation where failing to immediately restrain the person could result in imminent injury to security staff or to others, and all other de-escalation actions have failed or are not appropriate in the circumstances. In these circumstances, restraint must only be used until the risk of harm is reduced…. 8. Under both statues [the Crimes Act and Civil Liability Act], conduct is carried out in self-defence where the person believes the conduct is necessary to defend himself or herself or another person, to protect property, or to prevent criminal trespass. Both statues require the person to believe that the conduct was necessary and that the conduct was a reasonable response to the circumstances as perceived by the person. 1. It was emphasised that the decision to conduct the restraint therefore rested with the security officer and was not dependent on instructions from a third person such as a nurse. It was pointed out that it was reinforced in the final version (20 November 2015) of the NSW Health Information Sheet 1 titled "Role of security staff working in HSW Health" which left it up to the security staff in attendance to make the decision on the use of restraint. The Applicant relied particularly on the following sections: 2. Scope of duties: 2.1 The role security staff undertake in NSW Health Agencies can include: …. 2.2 Additionally, the role security staff undertake in a NSW Health Agency can include, as an option of last resort: 2.2.1 Restraining physically (that is, holding the person temporarily), by a reasonable amount of force, a patient or visitor who has assaulted the security staff, other staff, another patient or another visitor and who is (in the reasonable opinion of the security staff in attendance) likely to continue to assault and where the security staff believe the restraint is necessary to defend themselves or another, and report to police as appropriate. 2.2.2 Restraining physically (that is, holding the person temporarily), by a reasonable amount of force, a patient, or visitor who (in the reasonable opinion of the security staff in attendance) is threatening to imminently assault the security staff, other staff, another patient or a visitor, and where the security staff believe the restraint is necessary to defend themselves or another, and report to police as appropriate. 2.2.3 Restraining physically (that is, holding the person temporarily), by a reasonable amount of force, a patient or visitor who has destroyed or damaged significant property of the NSW Health Agency and who is (in the reasonable opinion of the security staff in attendance) likely to continue to destroy or damage the property, and where the security staff believe the restraint is necessary, and report to police as appropriate. 2.2.4 Restraining physically (that is, holding the person temporarily), by a reasonable amount of force, a patient or visitor who is (in the reasonable opinion of the security staff in attendance) threatening to imminently destroy or damage significant property of the NSW Health Agency, and where the security staff believe the restraint is necessary, and report to police as appropriate. 1. It was submitted that Mr Siddique had maintained his composure in the face of very aggressive cross-examination. Such demeanour belied the assertion by the Respondent that he was like a "Kings Cross bouncer". 2. Mr Siddique has a Bachelor of Computer Science and a Masters in Information Technology. Management had supported his application to undertake a Masters of Health Service Management scholarship and to pursue further in-house studies with the centre for Education and Workforce Development. 3. In addition, Mr Siddique was a model employee, had an unblemished employment record with the Respondent with no previous issues regarding use of excessive force and has the support of his colleagues. 4. It was submitted that the dismissal was harsh, unjust and unreasonable because the Applicant did not push the visitor. Rather, he had acted in accordance with policy and training. 5. It was also submitted that there was no impediment to reinstatement as the Applicant had, at all times, met expected standards, had not engaged in unsatisfactory conduct and had done nothing wrong. The submissions made by Mr Britt on behalf of the Respondent may be summarised as follows: 1. The visitor fell under the definition of "patient" in part 14.3 of the "Protecting People and Property" policy. 2. The Respondent was left with no option but to dismiss the Applicant for misconduct. He had not only acted, as conceded and demonstrated in the CCTV footage, in contravention of nursing staff directions to escort the visitor to the triage area, but failed to demonstrate insight and take responsibility for his conduct. On the evening in question, rather than acting in a measured, reasonable and responsible manner, he used excessive force to remove the visitor from the ED to the Ambulance bay area and, once outside, deliberately and wilfully pushed him resulting in an injury to the visitor. He then proceeded to attempt to pick up the visitor when he was lying injured and to pull him along the cement thereby putting him at further risk of injury. 3. Although the Respondent was of the opinion that the Applicant's actions constituted wilful misconduct and warranted summary dismissal, he was not summarily dismissed. He was dismissed for misconduct and provided with a payment in lieu of notice. 4. The Respondent acknowledged that it bore the onus of establishing that the Applicant was guilty of misconduct. 5. The CCTV footage spanned a period of 15 minutes and verified the Respondent's contentions except for a period of time the security officers and the visitor were in the RAFT area. Nevertheless, there was an eyewitness account from both Mr Figurka and Ms Pangallo that the visitor had been co-operative, was leaving the area of his own accord and did nothing to threaten the security staff. Their eyewitness accounts, which were not suggested to them in cross-examination to be mistaken or fabricated, also stated that the visitor only reacted when the Applicant grabbed him without any provocation. It was the visitor's reaction that led Mr Kuzmak to grab his other arm. 6. The Applicant had breached, amongst other things: The Respondent's Protecting People and Property Policy (June 2013) with respect to sections 2.2, 14.2, 14.3, 14.4, 14.5, 14.6, 14.12, 15.4 and 15.5; The Respondent's Code of Conduct of Ethical Conduct; and S 119 of the Health Services Act 1997. 1. The Applicant's first report on the incident was written in such a way as to paint him in the best possible light and he continued to embellish his story in his subsequent reports and statements. 2. Both Ms Pangallo and Mr Figurka gave unrefuted evidence that the visitor had been co-operative and was leaving the area of his own accord without posing any physical threat to the Applicant or anyone else. It was the Applicant who, unprovoked, grabbed the visitor's arm resulting in a reaction from the latter. S/O Kuzmak then grabbed the visitor's other arm. It was therefore hardly surprising that the visitor made a clenched fist when placed in a security hold by Mr Siddique and then grabbed by Mr Kuzmak. It was also hardly surprising that he would commence to struggle when he was "frog marched" by both security officers. 3. The Commission was invited to make adverse findings as to the Applicant's credit upon assessment of the facts in the case and the inconsistencies evident from a comparison of the Applicant's statements, the security diary, security report, his record of interview and his oral evidence during which he admitted errors in the former records. During cross-examination, he admitted that: 1. The visitor did not stumble as previously described; 2. He wrote the security report in a manner which painted him in the best possible light; 3. The report he wrote regarding the incident did not depict exactly what happened and contained considerable omissions including that Mr Kuzmak told him that he had nudged the visitor prior to the preparation of that report; 4. The CCTV footage and/or his later evidence belied his claims that: the Respondent had served a barring notice on the visitor; he rushed in response to the call from emergency; the visitor was not a patient; Mr Kuzmak entered the ED some time after him; He was not aggressive towards the visitor; He restrained the visitor because the latter tried to punch him; He and Mr Kuzmak grabbed the visitor at the same time; He did not push the visitor while inside; He was concerned that he would be shot; The waiting room was full; He only took one to two steps when they got the visitor out of the hospital; There was a plan/or no plan to stop when he got outside; He lost his balance as a result of Mr Kuzmak letting go of the visitor; The position of his hand on the shoulder of the visitor prior to the latter falling; He did not push the visitor; The claim that he did not drop the visitor after he picked him up from the floor; He did not disobey an instruction from clinicians; He had no memory of what happened outside; and He had apologised to staff; 1. He was not kicked in the head by the visitor; 1. The Commission was invited to prefer the evidence of Ms Pangallo and Mr Figurka in relation to the fact that there was no physical threat to the Applicant by the visitor during the move from the area near the Emergency consulting rooms to the corridor and no change in the visitor's demeanour. They had no reason to lie and it was never suggested on behalf of the Respondent that they had. 2. In other words, the Applicant had acted deliberately and disproportionately to any real or imminent risk in a manner that constituted an assault even before the visitor was taken outside ED. There was, according to the evidence of Mr Figurka and Ms Pangallo, no conduct by the visitor to provoke Mr Siddique. In addition, the evidence was that the visitor had made it clear that he wanted to see a security officer called "Michael" and he was not there to get the Applicant. 3. It was submitted that the dismissal was not unjust given that the evidence demonstrated that the Applicant was guilty of the alleged misconduct nor can it be unreasonable given that the decision to dismiss was not based on inferences. 4. As far as a consideration of harshness is concerned, it was submitted that weighing the gravity of the misconduct evidence against him and taking into account that he was neither an exemplary employee nor had he demonstrated any special circumstances warranting any mitigation of the penalty of dismissal, it should result in the conclusion that he had not satisfied the onus on him that the dismissal was harsh and that, on balance, the dismissal was not harsh. 5. In the alternative, it was submitted that reinstatement would be impracticable given the severity of the Applicant's failure to meet the expected standards, his inability to appreciate the gravity of his actions and his denial of any wrong doing. 6. Re-employment would also be impracticable for the same reasons as those given for reinstatement. In addition, the Applicant had not provided any evidence of any other positions that are "available" and about which the Commission can form the opinion that they are "suitable". 7. If the Commission was minded to award compensation, then it ought to be a minimal amount given the evidence of the Applicant's weak attempts at finding alternative work and the remuneration subsequently earned by him. Consideration Ground 1 – Taking the visitor outside the ED when he was being triaged by nursing staff 1. The visitor returned to the ED at 5.39 pm on 11 May 2015. The CCTV cameras recorded everything that happened except for what occurred in the Rapid Assessment and Fast Track (RAFT) area. It showed that the visitor was unsteady on his feet and appeared confused. He knocked, according to the evidence, in a non-aggressive manner, on the glass sliding doors that separate the hallway and adjoin the ED. An unknown person opened the door for him from the inside as the only entry from the hallway is via swipe card access. 2. The visitor was seen speaking to the Administration Assistant and then going to sit in the triage area. The Administration Assistant proceeded to drink a cup of coffee, seemingly unperturbed. At about 5.40 pm the visitor rose from his seat and staggered after a person in an orange vest into the emergency area. He tapped on a window in the emergency area and is then seen entering the RAFT area of the ED. 3. Mr Siddique said he was in the security control room when Ms Dee McNamara, Administration Officer within the ED, rang the leading hand in Security Services, Joe Lahood, and reported that a visitor, who appeared to be highly intoxicated and aggressive, had threatened to break the reception glass window. She also advised that the visitor had tailgated another person through the glass doors of the reception area and gained access to the restricted corridor into the RAFT area of the ED. Mr Siddique gave evidence that Ms McNamara rang Mr Joe Lahood to attend as she said she felt threatened. She asked for someone to come and "remove the guy from ED". 4. Ms McNamara confirmed that the visitor attended the reception counter and said "I want to see Michael the Security Officer" or he "would break the window". She did not know the visitor but other staff said he was a "regular". He did not provide a reason for wanting to see "Michael" (neither of the security officers who later attended the ED were known as "Michael"). She formed the view that the visitor was intoxicated because he was unsteady on his feet and had slurred speech. 5. In rebuttal, Ms McNamara stated that she would have activated the duress alarm had she felt threatened by the visitor. In fact the CCTV footage demonstrated, from her subsequent actions, that she was unperturbed by the visitor. She said she called Security merely as a risk management strategy for their assistance if required as the visitor's conduct had been verbally aggressive and he had used swear words. She said she had made two calls – the first to advise that an intoxicated visitor had asked to see security officer "Michael". The second call she made to Security was to advise that the said visitor tailgated someone into the emergency area. It is noted that she said she had not mentioned in either of those calls that the visitor had threatened to smash the window. 6. During cross-examination, the Applicant confirmed that he had not been privy to Ms McNamara's part of the conversation. He also admitted, during re-examination, that he did not become aware of the threat to smash the reception glass window until he read the reports after the incident. 7. Mr Siddique stated that Joe Lahood instructed him and Leading Hand Security Officer Duguid to attend the incident pointing to the security screen and saying "This is the same guy we have had problems with for the past 3-4 days … you need to attend now." Mr Siddique said that SO Duguid refused to attend saying "I am not going he is too aggressive call the police" at which point Mr Lahood showed them his personal mobile telephone to demonstrate that he had contacted Newtown Police earlier about the said visitor and they had not yet attended. Mr Lahood repeated that they had to attend the ED. During cross-examination, the Applicant conceded that the visitor did not appear to be aggressive when viewed on the security screen. 8. SO Duguid said that he intended to respond to the call but left to get his jacket from the locker room because it was cold. He then proceeded to the Ambulance Bay area but could not see either Mr Siddique or Mr Kuzmak. He called them on the radio but neither had responded. 9. Mr Siddique said that as he proceeded to the ED he contacted other security staff on the two-way radio to attend with him. He agreed, upon viewing the CCTV footage, that he did not appear to be in a hurry as he wandered down the corridor. He explained that he was waiting for other Security Officers to join him. 10. SO Kuzmak said that a leading hand, Hany, called and advised him that there was a problem in ED and asked him to sort it out. He said Hany then proceeded to radio Mr Siddique to meet SO Kuzmak there. The CCTV footage confirmed that Mr Siddique entered through the sliding doors of the ED at about 5.41 pm, a split second before SO Kuzmak arrived. Mr Siddique was carrying his gloves in his hands and was not wearing goggles. Mr Kuzmak was not wearing gloves. The footage showed that they spoke to one another. 11. Ms Heidi Pangalla, Registered Nurse, who was trained in aggression management and de-escalation techniques, gave evidence that she was standing at the Nurses' station when she heard a noise. Ms Arikorian-Medeiros, another nurse in RAFT, also said she heard the banging noise. They both saw the visitor sitting in one of three chairs near the consult room. They observed him banging his head against the wall. Ms Pangalla walked over to him. She heard him slur the words "I'm not well, I need help". From her experience, he appeared to be under the influence of some substance. As he appeared to be agitated and needed assistance, she utilised de-escalation techniques to assist him. That evidence was supported by Mr Figurka who joined her and also utilised de-escalation techniques on the visitor. 12. Not long after Ms McNamara's call, Mr Siddique attended the ED waiting room and came up to her window. She told him that the visitor had tailgated a staff member into the restricted area of the ED waiting room. He noticed SO Kuzmak approaching to assist. They had a very brief chat before they entered through the glass entry door into the ED. Mr Siddique said he observed the visitor sitting next to consulting room 1. 13. SO Kuzmak during the investigation process alleged that Mr Siddique said to him that "he [the visitor] has to be kicked out". It was initially denied by the Applicant but later during cross-examination he stated that he could not recall whether he did make such a statement. 14. Mr Siddique said that as he approached the visitor, the latter became verbally aggressive and abusive towards him. In his work diary, he noted that the visitor said variously: "Where is the other s/o Mark, I will kill the cunt." "You's are all cunts I am gonna kill all of you's." In his statement, the Applicant said that the visitor said words to the effect, "I will shoot all of you". 1. In his diary entry, the Applicant stated that he and SO Kuzmak advised the visitor to go back to the waiting room to book on the RPA administration system to see a doctor. In his statement, Mr Siddique stated that he and the nursing staff advised the visitor to go back to the waiting room if he needed to see a doctor. Mr Siddique emphasised that he was directly involved in convincing the visitor to go back to the waiting room. During re-examination, Mr Siddique stated that when he arrived and went up to the visitor the following exchange had taken place. He said to the visitor "How are you going, mate? Are you alright?" He said the visitor became aggressive resulting in him saying "Look, mate…". The visitor replied, "I'm not well" to which Mr Siddique replied, "If you're not well, you need to go back to the waiting room and getting treatment", "You have to go back to the waiting room". He said the visitor replied, "You're a fuck" or "you are fucking cunts", "I'll kill you. I'll kill all of youse. I'll shoot all of youse." He said Mr Figurka came over and advised the visitor that he had to get logged on the system before he can be treated. At that stage the visitor stood up and made comments such as "Where is Security Officer Mark?", "I'll kill the cunt". 2. Mr Figurka, who has also been trained in aggression management and de-escalation techniques, denied that the visitor was either verbally aggressive or abusive towards the security officers or made any such remarks. Ms Pangallo gave evidence that she observed that the visitor had become agitated when the security officers approached, however, he was not physically threatening and remained in his chair. She did hear him make a comment to the effect, "Don't touch me or I will shoot you". 3. Ms Panjallo and Mr Figurka both denied Mr Siddique's involvement in convincing the visitor to return to the waiting room. Mr Figurka insisted that he did not hear Mr Siddique at any time attempt to engage in any discussion with the visitor. They both gave evidence that they alone had explained to the visitor that if wanted to see a doctor he had to return to the waiting room to be triaged. 4. Part 14.3 of the "Protecting People and Property" policy (June 2013) defines a "patient" as "a person under health care whether they may be waiting for this care, receiving it or have already received it". The evidence of Ms Heidi Pangallo leaves no doubt that the visitor was waiting for such care. In any event, that fact was admitted by the Applicant. 5. Mr Figurka was also unclear as to why security staff were in attendance as he had not called them in his role as Acting Nursing Unit Manager. He had formed the view that the visitor was co-operative and was not a risk to any persons in the Triage area. Mr Figurka stated that he had communicated out loud his decision that the visitor was to be triaged. Mr Siddique confirmed, during cross-examination, that no-one from the nursing staff had instructed him to escort the visitor to triage. 6. Mr Siddique pointed out that there was confusion amongst the ED staff as to who had contacted security and why. 7. After a few moments, the visitor stood up on his own accord and started moving towards the ED entry door. 8. The Protecting People and Property Policy defines a patient as one waiting for care, a person in need of treatment. Mr Siddique admitted that he was aware that the visitor had advised that he was not feeling well and wanted help and the clinicians had directed him to triage because he needed treatment. 9. There was absolutely no reference to the visitor's girlfriend or that the visitor had attended RPAH to visit her. In fact, there was no evidence before the Commission as to whether she was still a patient in the hospital at the time of the incident. 10. There is no doubt, given the above, that the visitor had attended the Hospital on that occasion to receive treatment and therefore was a patient and not a visitor. Ground 2 - Physically holding the visitor when taking him outside 1. Mr Siddique stated in his diary entry that while entering the ED waiting room through the glass sliding door, the visitor appeared to be more verbally and physically abusive towards the Security Officers and showed an immediate threat to punch Mr Siddique causing both Officers to restrain him by the arms. In his statement, Mr Siddique stated that the visitor turned towards him in an aggressive and threatening manner with raised hands. In re-examination, he stated that the visitor said words to the effect "I'm going to shoot. I'm going to kill all of youse". Mr Siddique stated that he had reasonable grounds of fear for his safety at that point in time causing him to use the least restrictive self-defence option available to him which was to restrain his left arm. He took hold of the visitor's left arm at the elbow and at the wrist while still in the RAFT area. At that stage the Applicant was wearing his goggles and gloves. When SO Kuzmak subsequently restrained the visitor's right arm, the three of them were already through the glass sliding doors and in the corridor. It was then that the visitor commenced to struggle. 2. Mr Siddique confirmed, during cross-examination, that he told the investigators that the reason he restrained the visitor was the fact that he thought the safest option was to restrain his hands as he was worried that the visitor might punch him. 3. Mr Figurka gave evidence that he was walking closely behind the visitor who was flanked by both security officers. Other nursing staff were beside or behind him. He did not see the visitor turn towards Mr Siddique in an aggressive or threatening manner or even raise his hands. He insisted that he did not see any physical action by the visitor directed towards the security officers. He saw Mr Siddique, without any justification, grab the visitor's arm in a forceful manner and SO Kuzmak followed suit by grabbing the other arm. 4. Mr Siddique said that the visitor's aggressive and violent behaviour towards him and SO Kuzmak continued as they approached the waiting room which, it was perceived, was full of patients and visitors. Mr Siddique said that, in consideration of the safety of staff, patients and visitors in the waiting room, they continued to move him away from the waiting room in order to calm him down with the intention of bringing him back to the waiting room to be triaged after he had calmed down. In the CCTV footage, they are seen to be pushing and dragging the visitor through the emergency waiting area while still holding on to him. The Applicant said the visitor was a strong man and he kept resisting by leaning back on them. They continued to propel him through the exit door to the ambulance bay area. 5. When shown the CCTV footage, the Applicant agreed that it was his gloved hand that could be seen on the visitor's right shoulder "moving him on" through the door. During cross-examination, the Applicant agreed that there were at least 10 empty seats in triage yet they did not stop there. He also agreed that he had acted contrary to the direction given to him by nursing staff to take the visitor to the waiting room to be triaged. 6. Mr Figurka argued that there was no conduct on behalf of the visitor that would require him to be taken out of the waiting room area. What he witnessed was Mr Siddique and SO Kuzmak ignore his instructions to take the visitor to the waiting room and, instead, continue to walk straight out of the ED still holding on to the visitor. 7. Ms McNamara said she watched the Applicant and Mr Kuzmak "drag" the visitor outside. She felt that they were using excessive force. She witnessed him, at one stage, go down on his knee and they continued to drag him through and out of the waiting room. They each had hold of an arm in what appeared to her to be "a strong grip". A short time later, a nurse came in to the ED and asked her to arrange a bed for the visitor. The visitor was returned to the ED on a stretcher. 8. Ms McNamara stated in cross-examination that she had witnessed security officers escort troublesome patients/visitors out of the emergency areas and could recall only one other occasion when restraint was used. On all other occasions, she had witnessed the troublesome patient/visitor walk out escorted but unrestrained by security officers. On that one other occasion when restraint was used, the patient's arms were held behind his back and he was walked out as he had been very aggressive and was swinging his arms around. In the present instance, the visitor was not given the chance to walk on his own two feet properly. 9. The CCTV footage does not collaborate the evidence given by the Applicant and the accounts of independent eyewitnesses clearly do not support his conflicting evidence. Ground 2 is clearly proven. Ground 3 - Using excessive force in deliberately pushing the visitor over 1. In his diary entry, Mr Siddique stated that upon releasing the restraint on the visitor outside the ED, the visitor headed forward and then turned back towards the security officers prior to stumbling on the pavement in the ambulance bay. 2. During cross-examination, Mr Siddique said that he did not let go of the visitor once they were out of the triage area as he considered that it would be hazardous to do so in case he tried to go back in. He said he was concerned that the visitor would punch the glass doors breaking the glass in the process. He said he planned to get him to a safe area and then speak to him and "handle him safely". 3. The Applicant told the investigators and included in his statement in these proceedings that he had no memory of what happened outside in the ambulance bay. He later discovered that, as they passed the exit door of the waiting room, SO Kuzmak "nudged" the visitor away from him. As he was still holding on to the visitor's left arm, SO Kuzmak's action resulted in Mr Siddique stumbling in the same direction as the visitor. He argued that the CCTV footage supported his recollection. Believing that he would end up landing on top of the visitor, he let go of the visitor's left arm which resulted in the visitor falling to the ground and hitting his head on the cement floor. He insisted that he had not pushed the visitor at any time nor had he intended to harm the visitor. 4. The Applicant noted that SO Kuzmak was now on medication as a result of the incident and opined that it would account for the different account that officer gave in these proceedings when compared to his record of interview. 5. During cross-examination, Mr Siddique agreed that the CCTV footage showed SO Kuzmak let go of the visitor's elbow, place both hands on his back and push. Mr Siddique also agreed that one of his own hands was on the visitor's right shoulder and the other had moved to his lower back towards the side. He denied that the footage showed his right foot firmly planted on the ground as he braced himself in order to push the visitor. He denied that he had pushed the visitor insisting that he was falling over the visitor. He also denied that he had then pushed the visitor in the chest area insisting that he had taken hold of the visitor's shoulder to stop him falling. The visitor had turned around and pulled away his shoulder causing the Applicant to lose balance again. The following exchange took place during cross-examination: Q. So you knew he was pushed at the time you did the statement? A. Yes. Q. You knew it just simply wasn't you lost your balance because he let go of the arm? A. No I did not, yeah, yes, no on that part yes. Q. Yes? A. Yeah. Q. So you knowingly said something incorrect in your statement? A. Correct I did mention that he … Q. You say sir, "I clearly state I did not push the visitor, although I lost my balance when my colleague let go of the right arm without me knowing"? A. Yeah. Q. That's not true is it? A. (no verbal reply) Q. Simple question sir, that's not true? A. Look it's just … Q. Answer my question sir, is it true yes or no? A. No. 1. Mr Siddique gave evidence that, at about 5.44 pm, when he went to assist the visitor with his bleeding head injury, the visitor was non-responsive for a short period of time. He was neither moving nor talking so he tried to get the visitor to stand up. He denied that he attempted to lift and drag the visitor on the ground. 2. Mr Siddique stated that when the visitor became responsive, he commenced to swear and throw punches at him. He contended that the visitor continued to be highly aggressive and abusive towards three security officers and at least three nurses who were trying to hold him down. He also contended that the visitor had kicked him in the forehead with his knee several times. Mr Siddique's statements did not contain any reference to any of the allegations contained in this paragraph. 3. Mr Siddique argued that he had acted in accordance with his role and in accordance with policy directives by the Ministry of Health. 4. Mr Siddique argued that the person in question was a visitor to the hospital - not a patient. Nevertheless, he did not ignore the directions from the nursing staff. He interpreted the contents of Information Sheet 1 – Role of Security staff working in NSW Health (issued by the NSW Government on 20 November 2015) as determining that it is the role of security staff to determine the level of response required. The training he had received required that he either isolate an aggressive person by moving others away from them or, if possible, by moving that person away from others. On that occasion, he deemed that the latter was more appropriate as the emergency room was full of patients. He said he fully intended to talk to the visitor outside and calm him down. 5. SO Duguid gave evidence that he was standing outside the ED when he saw Mr Siddique and SO Kuzmak heading in his direction each holding on to one arm of the visitor. He gave evidence that as they walked in his direction, he witnessed SO Kuzmak let go of the visitor's arm near the ED glass doors while Mr Siddique maintained his hold. He noted that the visitor's behaviour was neither aggressive nor threatening towards Mr Siddique. He then saw the visitor turn around as if to go back in and he witnessed Mr Siddique give him a "forceful" push (in his record of interview he referred to it as a "good push") around the chest area which resulted in the visitor being thrust backwards onto the ground. He heard a loud cracking noise when the visitor hit the ground and saw blood discharge from the back of his head. The visitor was unconscious for a short period of time. When the visitor became conscious, he did not appear aggressive. However, he did look startled when he saw nursing staff and a paramedic attending to him and the latter was trying to insert a cannula in his arm. He attempted to get up but staff held him down to prevent potential spinal injuries. He observed the visitor look in Mr Siddique's direction and say words to the effect, "You done this". 6. Mr Figurka gave evidence that he was inside the ED and observed what was occurring through the glass entry doors. He said he lodged an incident report as a result of observing the visitor being pushed firstly by SO Kuzmak and then by Mr Siddique. Mr Figurka gave evidence that he did not observe Mr Siddique stumble. He said he saw Mr Siddique push the visitor who then stumbled, lost balance and fell heavily to the ground. He lay prone on the ground with his feet facing the glass doors. He approached the visitor to provide assistance but a paramedic reached him first. He observed that the visitor had active bleeding from the back of his head and appeared to be unconscious. He also observed the visitor regain consciousness and say in the direction of Mr Siddique (who was standing nearby), "I know what he did to me". 7. Having observed the CCTV footage, considered the evidence of independent eyewitnesses and considered the conflicting evidence provided by the Applicant, I find based on the above that this ground is also proven. Requirements of the IR Act 1. Section 88 of the Industrial Relations Act 1996 (the IR Act) requires the Commission to take into account the following matters: 1. Whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ; and 2. If any such reason was given – its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment; and 3. Whether a warning of unsatisfactory performance was given before the dismissal; and 4. The nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment with the employer, and 5. Such other matters as the Commission considers relevant. 1. It was conceded by the Applicant that he was provided with a reason for his termination. The Applicant relied primarily upon s 88 (b) in his application contending that the misconduct did not occur. 2. Mr McClelland, Deputy Director of Workforce Services, contended that the Applicant had breached the Code of Conduct (dated 22 October 2013) in relation to the Department's core values (clause 3); the requirement to treat patients and members of the public with courtesy and respect (subclause 4.1.1); and the requirement to comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them (subclause 4.3.7). 3. Mr Siddique confirmed that he was aware that he was required to respond to security related requests in the clinical environment under the direction of the clinicians and that it was not his role to forcibly remove individuals from NSW Health premises. In that regard, he argued: A. …. We didn't remove from the premises, we just removed - … we I tried to isolate him from the patient area to a very secure place, where we can talk to him…. Q. I want to put to you that you were forcibly removing him from the premises? A. I didn't remove him from the premises. I showed him policy directive I have, PD2015 something, the policy directive, it clearly say that if stopping, you know, security officers, when you identify a risk, I escorted(?) an aggressive person away from the individual so there is no imminent threat to the patients all around him. 1. It is quite clear that ss 7 and 8 of the Protecting People and Property NSW Health Policy [paragraph 38] provides that the use of restraint must only occur in an emergency situation in the circumstances described and where it is carried out in self-defence, to protect property or to prevent criminal trespass. The CCTV footage and the eyewitness accounts do not support that any action was required pursuant to the said policy. 2. It is also quite clear that the NSW Health Information Sheet 1 titled "Role of security staff working in HSW Health" [paragraph 39] upon which the applicant relied provides for the security officers the ability to use temporary physical restraint, using a reasonable amount of force, as an option of last resort, only in particular circumstances – in defence of staff (including security staff) and others where a patient/visitor has assaulted any staff member, another patient or another visitor and is likely to continue to assault such staff or others (subclause 2.2.1); in defence of staff (including security staff) and others where a patient/visitor is threatening to assault such staff or others (subclause 2.2.2); to protect property from further destruction or damage where the patient/visitor has already destroyed/damaged significant property of the Respondent (subclause 2.2.3) and finally, to protect property from imminent destruction or damage by the patient/visitor (subclause 2.2.4) 3. The patient asked for a security officer called "Michael". Neither of the officers who attended were known as "Michael". Secondly, it turned out that the patient wanted to apologise to "Michael" for his behaviour earlier that day. I acknowledge that was not known to the Applicant at that time. Thirdly, the patient had not assaulted any staff member. The Applicant conceded that the visitor did not appear to be aggressive when viewed on the security screen prior to proceeding to the ED. Fourthly, I accept that the patient may have threatened to shoot any security officer who touched him but he was not armed, he complied with directions to go back to the waiting room to be triaged the security officers (including the Applicant) and the staff who attended to him in the RAFT section were all trained in aggression management and de-escalation techniques and had applied those techniques. Physical restraint is only to be used as a last resort. The evidence was that the Applicant did not participate in convincing the patient to return to the waiting room. In view of the conflicting versions of events provided by the Applicant, I prefer the evidence of Mr Figurka and Ms Panjallo. Fifthly, the Applicant cannot rely on the provision regarding destruction to property as, on his own admission, he did not become aware of the threat to smash the receptionist's window until after the event. 4. Mr Siddique also confirmed that he was aware that he was required to attempt all other prevention strategies prior to resorting to manual restraint. He said that he was among those trying to talk to the visitor to try to convince him to go back to the waiting room. Even though I accept that the visitor made a threat to shoot them, he was not armed, he did stand up and he started walking towards the triage area. Mr Siddique stated that at some stage he made a gestured threat to punch him causing him to manually restrain the visitor – that is not backed up by either the CCTV footage or the eyewitness accounts. 5. Mr Siddique confirmed that even when manual restraint was used, he was required to use the minimal amount of force. He denied that he had used excessive force by frogmarching the visitor outside the emergency area. 6. Mr Siddique insisted that his intention was to escort the visitor to the ED waiting room but changed his mind and restrained the visitor when the latter turned around and made a threatening gesture as if to punch him. 7. Mr Siddique also acknowledged that the Protecting People and Property Policy provides that a decision to use manual restraint must only be made by a clinician. He stated that he made the decision to use manual restraint on the visitor to protect himself in the face of a threat from the visitor to punch him. Mr Siddique did not defer to SO Kuzmak for instructions considering that the latter was a leading hand and therefore more senior to him. He initiated the restraint and he decided to continue taking the patient outside the waiting room into the ambulance bay. 8. A Security Officer can exercise discretion to use manual restraint on a patient only in two circumstances – firstly, in the absence of a clinician and, secondly, where clinical staff are unable to issue instructions - neither of which were applicable in the present circumstances. 9. Mr Siddique strongly resisted classifying the visitor as a patient despite conceding that he came within the definition. It was suggested that his resistance related to the fact that the Policy provides for further circumstances where a person may be restrained when not a patient – when there is imminent injury to security staff and others. The Applicant was also referred to an HSU newsletter (which he had read) advising security officer members that only a doctor can direct them to restrain and/or detain a person once the doctor has determined that the person is incapable of giving consent to necessary medical treatment in accordance with the Guardianship Act. 10. The Applicant was obliged to obey lawful and reasonable directions. 11. There is little doubt that the Applicant breached the Code of Conduct and the "Protecting People and Property Policy" by failing to act as directed. 12. The Applicant relied on the Information Sheet 1 – Role of Security staff working in NSW Health as set out above. It is noted that the Information Sheet also provides: 1. Overview of the Role The frequency with which specific duties for security staff need to be undertaken will vary according to the type, location, size and local circumstances of the NSW Health Agency. However, in all cases security staff should work in collaboration with other staff, to assist with managing patients, to provide assistance to visitors, and to assist with protecting staff and securing the assets of the Agency. The emphasis of the role in NSW is on assisting with the early identification, prevention and management of incidents. [emphasis added] 1. Contrary to the Applicant's interpretation, the Information Sheet requires that security staff should in all cases work as part of a team, in collaboration with other staff, to assist with managing patients, to provide assistance to visitors and to assist with protecting staff and securing the assets of the Agency. The Information Sheet places emphasis on security staff assisting with the early identification, prevention and management of incidents. 2. It is also pertinent to note the provisions of clause 3, Activities outside of the scope of duties of that Information Sheet which provides: It is NOT the role of NSW Health security staff to: 3.6 Forcibly remove individuals from NSW Health premises. … Security staff must not place themselves, or be expected by others to place themselves, at unnecessary risk in carrying out their duties. Where there are concerns about public safety the police should be called. 1. The Information Sheet also provides, in relation to the scope of duties of security staff, that the role can include, "as an option of last resort": 2.2.2 Restraining physically (that is, holding the person temporarily), by a reasonable amount of force, a patient or visitor who (in the reasonable opinion of the security staff in attendance) is threatening to imminently assault the security staff, other staff, another patient or visitor, and where the security staff believe the restraint is necessary to defend themselves or another, and report to police as appropriate. [emphasis added] 1. It talks about restraint of persons only. The Information Sheet makes it abundantly clear that activities outside the scope of duties of security staff is the forcible removal of an individual: It is NOT the role of NSW Health security staff to: … 3.6 Forcibly remove individuals from NSW Health premises. 1. Mr Siddique relied on the fact that Security Officers were empowered to make decisions as to safety, however the RPAH Guidelines for the Management of Behavioural Emergencies in the Emergency Department – August 2011, requires – Emergency staff must take the lead in the event of any behavioural emergency and give clear direction to security staff, when the involvement of security staff is required. 1. It sets out the following procedure: • If staff consider the patient to constitute a high risk of aggression it may be necessary to summon additional ED staff, invoke a duress call or call security urgently for support. • Security staff may be needed for a brief period to support staff while initial management is instigated. • Security staff are to discuss the case with the NUM on the shift for updates and with any concerns. • Emergency staff must take the lead in the event of a behavioural emergency. 1. In addition, the RPAH Code Black Policy, although not applicable to the present circumstances, provides that even in more dire circumstances, the recommended practices for managing acts of aggression by patients, staff or general public are: • The role of Security staff is to follow the instructions of the Team Leader (generally the NUM). • The role of the Team Leader includes establishing a short-term management plan and to engage the person who is exhibiting the aggressive behaviour. 1. I do not accept that the circumstances in question involved a behavioural emergency. The Nurse Unit Manager made a decision that the patient had to go back to the waiting room to be triaged. The Applicant ignored that instruction. Chapter 2, Responsibilities, of the publication, Protecting People and Property: NSW Health Policy and Standards for Security Risk Management in NSW Health Agencies, provides that security officers are responsible for responding to security related requests, in the clinical environment, under the direction of clinicians. Mr Figurka and Ms Pangallo agreed that the visitor needed to see a doctor and therefore would have to be triaged so as to get logged on to the system. They both agreed that their decision had been communicated to both the visitor and the security staff. The visitor had agreed and stood up of his own accord. Mr Siddique confirmed that it was clear to everyone, and that he had agreed with the nursing staff, that the visitor had to go back to the ED waiting room. 2. Mr Siddique had attended the scene with a pre-conceived notion about the visitor. He told the Review Panel: I had a pre-concern about him about all this reports and I deal with him on Friday that he told me when he left I'm going to come and get you guys… because of the aggression level I thought that let's get him outside of the waiting area and talk to him and calm him down if he's safe and comply with us and we slowly bring him back and get him triaged. That was my plan ….. 1. SO Kuzmak confirmed that Mr Siddique made the decision to get the visitor completely out of the ED area saying words to the effect, "he has to go he's very bad we had trouble with him in the past few days" (in his written report) and "we've got to kick him out" (in his interview). The Review Team considered that the decision to take him outside of the ED waiting room area was made prior to attending to the visitor. I concur with that conclusion. 2. Section 121 (1) of the Health Services Act 1997 (the HS Act) requires the Industrial Relations Commission to have regard to s 119 of that Act in exercising its functions pursuant to Part 6 of the IR Act. Section 119 of the HS Act provides that: The protection of a public health organisation's patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff under this Part. 1. The Commission finds that – 1. The Applicant had acted in contravention of nursing staff directions by not escorting the visitor to the ED to be triaged; 2. He had used excessive force to remove the visitor from the hospital; 3. He pushed the visitor and caused injury to him in an act of aggression which was deliberate, wilful and punitive in nature; 4. He failed to act in a measured, reasonable and responsible manner; and 5. The CCTV footage showed that the visitor fell to the ground. The Applicant lifted him up, dragged him on the ground and then dropped him thereby placing the visitor at further risk of injury by his actions. 1. Having considered the evidence in these proceedings as to the conduct of the Applicant, I find that the reasons for dismissal had a basis in fact. 2. RPAH runs in-house mandatory training for its Security Officers. Included in that training is aggression management and training in de-escalation techniques. 3. Mr Siddique's training record noted that he undertook a number of in-house training courses prior to the incident in question including, relevantly: 2011 - Critical Incident Positive Outcome – Managing Challenging Behaviour 2013 - Violence Prevention and Management – Promoting Acceptable Behaviour in the Workplace Critical Incident Positive Outcome Refresher De-escalation and Breakaway Techniques Violence Prevention and Management – An Introduction to Legal and Ethical Issues Conflict Resolution – Introduction 1. The Applicant breached the Code of Conduct and the Protecting People and Property Policy. Neither the Applicant nor staff nor other patients had been in any danger of violence or physical aggression by the visitor. 2. The Applicant agreed that he was provided with an opportunity to make out a defence against the allegations against him. He was provided with an opportunity to view the CCTV footage both prior to participating in the investigation and twice in the company of his Union (one of which was prior to submitting his written response to the show cause letter). He was provided with an opportunity to respond in writing to each of the allegations against him, he was provided with a copy of the investigation report and three weeks in which to prepare and submit a response to the show cause letter. 3. The Respondent has satisfied the onus. The ultimate question is whether the dismissal was "harsh, unreasonable or unjust". 4. I find, based on the evidence which has been forensically examined and detailed above, that the Respondent had a reasonable basis for terminating the Applicant's employment on the grounds of misconduct. The termination was neither unjust nor unreasonable. The question remains – was the termination harsh? 5. I acknowledge that the previous behaviour of the patient in question had left a lot to be desired. 6. I accept that there was uncertainty within the ED. The Administration Clerk did not advise the NUM that she had called security. When security staff arrived, they did not report to the NUM and seek instructions. In fact, the ED nursing staff were confused as to why security guards were in attendance. 7. The NUM did not question the security staff as to their attendance at the scene as he had not called for their assistance. The NUM did not challenge the security staff once it became apparent that the visitor was being escorted out of the ED. 8. SO Kuzmak, as leading hand, ought to have taken control of the situation but did not do so. He allowed the Applicant to take the lead. 9. Mr Siddique's December 2014 performance review indicated that he exceeded expectations in relation to technical knowledge, problem solving, communication, adaptability, personal and professional development, organisational values and customer service. 10. There was no evidence before the Commission of any behavioural or performance issues prior to the incident in question since he commenced employment in 2011. 11. It is very unfortunate that the Applicant, in attempting to explain his behaviour and actions on that day, provided conflicting reports and evidence to the extent that I believe that reinstatement and re-employment are not viable in the circumstances. On that basis, I find that the dismissal was harsh. 12. I believe that a sum of compensation is warranted. I would also recommend that consideration be given to the removal of the Applicant's name from the Service Check Register given the above finding and given the time period that has elapsed since his termination. Decision 1. Having regard to the provisions of Section 84 of the Industrial Relations Act 1996, the Respondent shall pay to the Applicant a sum equivalent to six weeks' pay. 2. The payment is to be made within 21 days of today's date. 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: 03 November 2016