Consideration And Findings
355I have carefully considered the transcript, all the evidence as tendered, the submissions of the parties and the cases cited. That consideration has required detailed review of all the documentation and transcripts in this matter. I have also outlined the respective submissions of Counsel and Solicitor which summarised the respective and opposing position of the parties and which have been of great assistance to the Commission.
356The parties have rightly identified the requisite standard of proof to be applied as that established in Briginshaw - V - Briginshaw (1938) 60 CLR 336, as further explained in Neat Holdings Pty Ltd - v - Karajan Holdings Pty Ltd (1992) 67 ALJR 170 and as consistently applied in unfair dismissal cases before this Commission. That being the civil standard of the balance of probabilities.
357The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) - V - South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus.
358In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks through an unbroken line of authorities to Budlong - V - NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state:
13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw - V - Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal in such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.
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This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt relied upon criminal inquest in the reasonable satisfaction which in a similar issue in may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil preceding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (Emphasis added).
14. In Neat Holdings Pty Ltd - V - Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450. Mason CJ, Brennan, Deane, and Gaudron JJ explained the above passage from Briginshaw this way:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on
the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. This, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary "were so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added).
359The Full Bench also went on to observe in relation to the specific decision the subject of appeal:
19 The Commission, at first instance, should be conscious of the gravity of the allegations made by both sides when reaching a conclusion. Ultimately, however, it remains incumbent upon the Commission, at first instance, to determine the issue by reference to the balance of probabilities. The question then becomes: did the Commission, in making the findings of fact at first instance, approach its task by mechanically applying a mere preponderance of probabilities, or, on the other hand, did reach a state of reasonable satisfaction, bearing in mind the seriousness of the matters alleged?......
360Observations made by Bishop C. in Australian Services Union of NSW - V - Sydney Water Corporation [2008] NSWIRComm 1064 seem particularly apposite to this matter:
Whilst it is clear that this case is about onus and whether Sydney Water has established, to the Commission's satisfaction, that the men were drinking alcohol and did therefore commit serious misconduct, coming to a conclusion about whether that onus has been discharged is also inextricably bound up with issues of the credit of witnesses and the credibility of the evidence of both sides not merely whether there is sufficient evidence of the misconduct alleged. Given how diametrically opposed the accounts are of what happened on 16 October, it ultimately comes down to whether the Commission believes one side in preference to the other and any basis for that belief.
361Generally in misconduct cases however, even if it is established after applying the requisite tests, that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne. Likewise the Commission must also consider whether the termination was harsh and/or unjust and/or unreasonable per s.88 of the Act. Here however, the onus moves back to an applicant per Western Suburbs District Ambulance Committee - V - Tipping (1957) AR NSW 273.
362It was more than evident that there were resentments held within the Security Department and it did seem to me, based on those giving evidence that there were 2 clear camps - those supporting Mr Dimovski (Mr Kotevski, Mr Mofardin and Mr Anevski) and those supporting Management (Mr Andraos, Mr Skleparis, Ms McCamley, Mr Robinson, Mr Vay and Mr Calligas).
363This had its genesis in the direction given by Mr Demigilio on 22 September 2008 to Mr Dimovski, Mr Kotevski and Mr Anevski not to speak in Macedonian at the work place. Mr Dimovski gave evidence that he was annoyed at this. Mr Kotevski gave evidence that he, Mr Dimovski and Mr Anevski submitted a complaint to the Human Rights Commission about this and Mr Anevski stated that he believed the direction to only speak in English at the workplace was directed towards Mr Dimovski, Mr Kotevski and himself for speaking Macedonian. Ms McCamley stated that Mr Dimovski, Mr Anevski and Mr Mofardin and Mr Kotevski talked together regularly in Macedonian. Mr Vay stated that Mr Dimovski, Mr Mofardin, Mr Anevski and Mr Kotevski were always together speaking in Macedonian. Mr Andraos stated that Mr Demigilio raised the matter that Mr Dimovski, Mr Kotevski and Mr Anevski had continued to speak in Macedonian while on duty despite his direction not to. He referred to their formal complaint to the Australian Human Rights Commission signed by Mr Dimovski, Mr Kotevski and Mr Anevski. I accept that Mr Dimovski, Mr Kotevski and Mr Anevski continually spoke in Macedonian together in the workplace.
364The applicant submits that the Note Book entries of Mr Vay No. 103421 and Note Book entries of Mr Calligas No. 103436 were fabricated entries which were recorded at a later date for the purpose of orchestrating the dismissal of Mr Dimovski.
365The particular entries which the applicant alleges were fabricated were as follows:
Mr Calligas' Note Book No. 103436 entry on 9/12/08:
"S/O Dimovski making vulgar and disrespectful comments towards operation manager Joseph Demigilio. George called Joseph a faggot, and that Joseph always had bad breath, he said he must be sucking cock. S/O Dimovski did ask if I was a fence sitter. I replied to him I'm jut here to work, I feel like he is testing to see my reaction or comments on this."
Mr Calligas' Note Book No. 103436 entry on 11/12/08:
"S/O Dimovski made comments to me about Norm the casual, that he is a poof, and not to trust him, he also stated again that if we put a lot of complaints in against joseph he wouldn't get the operation's managers job . I simply couldn't believe what i had heard from a senior security officer. I don't really need this bullshit. I can't believe i left radiology for this shit".
Mr Vay's Note Book No. 103421 entry on 12/7/09:
"While on N/S I was conducting a routine Patrol with George Dimovski. He asked me what I thought of poofters! I said that I don't really have a problem with anyone. I said I don't care ...... what the person is as long as Mutual respect is both way's.
He said that our Operations Manager is a Poof and that he should Not be in that Position. I was taken back about these comments. I did not say anything to George. I jut thought he may have had a argument with Joseph. I don't want to get involved.
Mr Vay's Note Book No. 103421 entry on 05/8/09:
"George told me that if you get close enough to Joseph he has Cock breath. I think I should speak to Ray. I really can't handle this. I have only been here a couple of months there is so much anger towards Joseph. I do not want to continually hear about this. I think they hate Joseph being Ops. Manager."
366Prior to November 2009 Note Books were issued with a registration number beginning with the letter "N". Between December 2008, the time when Mr Andraos commenced employment and 18 September 2009 there is no record of any Note Books issued in the Security Note Book Register (Exhibit 10). Mr Andraos in cross-examination agreed that no Note Books had been issued. Mr Andraos further said in cross-examination that Note Books of a different batch were ordered some months before the current batch runs out and they are not in a sequential order.
367Mr Vay's and Mr Calligas' Note Books contained entries which preceded and postdated the date of the entries in question. For Mr Vay and Mr Calligas to have fabricated their Note Book entries on the relevant dates they would have had to copy all the earlier and later entries as well. The applicant submitted that all Mr Vay and Mr Calligas had to do was to get a copy of the Shift Log Reports and copy them into their fabricated Note Books. There is no evidence that they have done this.
368An examination of the Note Book Register (Exhibit 10) reveals that a Note Book No. N049145 was issued to Ms McCamley on 9/11/07. The next Note Book to be issued was Note Book No. N049244, issued to Mr Kotevski on 10/11/07. Although these Note Books were issued one day after another there is an increase in the numbers from N049145 to N049244. The next entry on the Note Book Register reveals a Note Book No. N048960 was issued to C Wright on 18/9/09. This Note Book represents a decrease in number from the Note Book issued to Mr Kotevski No N049244, although it was issued at a later date. The Note Book Register reveals that Note Books issued were not done so in a sequential order, that is the Note Book numbers increase and decrease in a non-sequential order.
369Mr Calligas' Note Book No 103436 was issued to him on 18 August, 2008, the day of his first shift (Exhibit 15). On the 29 July, 2008 he signed, as an item designation, for such things as a Note Book, shirts, trousers, pouch handcuffs and the like (Exhibit 14). However, the 29 July, 2008 was not the date when the Note Book was issued to him.
370Mr Calligas' Note Book was issued to him on 18 August 2008. It is not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103436 of Mr Calligas was issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.
371Mr Vay's Note Book was issued to him on 20 June 2009. It was not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103421 of Mr Vay was also issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.
372There is approximately a two year gap in the Note Book Register (Exhibit 10) during which time no entries were recorded. This is not conclusive evidence that the Note Book entries were fabricated.
373I find the Note Books of Mr Calligas and Mr Vay were not fabricated. The Note Book Register does not provide evidence that the Note Books are fabricated. It merely provides evidence that the Register was anything but reliable. Further, on the balance of probabilities, I find that the Note Books of Mr Calligas and Mr Vay had contained such a large number of incidents that it is highly unlikely that they are fabricated.
374I do not find it necessary to consider the evidence of Mr Dimovski in relation to comments made by Mr Hugon or Mr Demigilio because I have found the Note Book entries of Mr Calligas and Mr Vay were not fabricated.
375The applicant submits that because Mr Dimovski made allegations against Mr Vay and Mr Calligas in regard to their abuse of mental health patients and Mr Calligas' distribution of photocopies of inappropriate patient X-Rays, Mr Vay and Mr Calligas had in reprisal made allegations against Mr Dimovski.
376At the end of 2008 Mr Dimovski said he informed Mr Demigilio about the allegations against Mr Calligas. This was after the direction from Mr Demigilio not to speak in Macedonian. Then in March 2009 Mr Dimovski said he informed Mr Andraos that he had been approached by Mr Anevski, Mr Mofardin and Mr Kotevski who raised concerns about Mr Calligas' treatment of mental health patients. Mr Dimovski also said he informed Mr Andraos of Mr Vay's treatment of mental health patients. Mr Andraos denies that Mr Dimovski ever informed him of Mr Calligas' or Mr Vay's treatment of mental health patients.
377I do not accept that Mr Dimovski made these complaints to Mr Andraos. The first time that Mr Dimovski put the allegations in writing was on 28 May 2010 to the NSW Ombudsman, approximately one month after the report of the External Investigator into the allegations against Mr Dimovski. Mr Vay and Mr Calligas in cross-examination denied that they had abused mental health patients.
378I find the evidence of Mr Dimovski that he complained to Mr Andraos about Mr Calligas' and Mr Vay's treatment of mental health patients untruthful. It was in April 2009 that Mr Calligas had made an allegation about Mr Dimovski making derogatory remarks about Mr Demigilio. It was from this point on that Mr Dimovski made allegations against Mr Calligas that he had abused mental health patients. In September 2009 Mr Vay made a complaint to Mr Andraos that Mr Dimovski had made derogatory remarks about Mr Demigilio to remove him from his position. I find that Mr Dimovski was a very close colleague of Mr Kotevski, Mr Mofardin and Mr Anevski. Mr Dimovski described his relationship as no more or no less friendly than any other work colleague. I prefer the evidence of Mr Vay and Ms McCamley that the four men had a close relationship. Therefore I find the evidence of Mr Kotevski, Mr Mofardin and Mr Anevski also not true.
379Lastly, Mr Demiglio's direction to Mr Dimovski, Mr Kotevski and Mr Anevski not to speak in Macedonian in the workplace provides the context for the remarks that Mr Dimovski made to Mr Calligas and Mr Vay about Mr Demigilio.
380Having carefully considered the relevant evidence and mindful of the requisite test to be applied, I make the following positive finding:
That Mr Dimovski acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Mr Demigilio, with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demigilio from his position in an improper (unlawful) way.
381The action on the part of Mr Dimovski was clearly misconduct and I find that SESI Area Health Service have discharged the requisite onus applicable under the cases cited above to establish that misconduct on the part of Mr Dimovski did take place.
382Such action by Mr Dimovski against Mr Demigilio was clearly contrary to the Code of Conduct and indeed would be contrary to acceptable standards of conduct in a work place and was of such seriousness as to warrant dismissal.
383As indicated at the outset while the onus is on SESI Area Health Service to establish that misconduct took place, and I have found that they have satisfied that onus and misconduct did take place, the onus then moves back to Mr Dimovski to establish, notwithstanding that finding, his dismissal was harsh, unjust and unreasonable and sufficiently so as to warrant the intervention of the Commission pursuant to s89 of the Act.
384The expression "harsh, unjust or unreasonable", was considered in Byrne. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any of all of those three.
385Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether a termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds.
386This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]:
64 Finally, we stress the importance of a Member of the Commission at first instance in a 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was snot harsh, unreasonable or unjust.
65 in the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms wide, under each limb of the tripartite test, the dismissal was not an "unfair dismissal".
387A dismissal can be both substantively and procedurally unfair. The case usually quoted is the High Court Judgement in Byrne.
388In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission.
389However just because misconduct is found, it does not follow that there cannot also be such procedural unfairness so to warrant the intervention of the Commission.
390The applicant's case is that the investigation conducted by the External Investigator was compromised by the verbal briefing provided by Mr Andraos. The applicant states that, on the evidence, it is clear that Mr Andraos' intention was to influence the investigation so that it was biased against Mr Dimovski. Accordingly, the External Investigator took a biased approach to interviewing witnesses and making his findings.
391According to the applicant this resulted in Mr Dimovski's dismissal being both substantively and procedurally unfair.
392The External Investigator refused to provide Mr Dimovski with the names of the persons (Mr Vay and Mr Calligas) on the basis that they were Protected Persons. According to the applicant, the External Investigator's failure to provide Mr Dimovski with this critical information undermines the accuracy and/or validity of the investigation.
393As indicated above I find that Mr Dimovski's dismissal was not substantively unfair.
394When an issue of procedural fairness is raised what must be considered is whether the defect complained about is of such substance that it could have in fact materially effected the final outcome and thus could clearly be said to have produced an unfair or questionable result.
395Even if the verbal briefing conducted by Mr Andraos to the External Investigator was biased, this does not mean the investigation undertaken by the External Investigator was biased. The purpose of a briefing is not to provide evidence. The External Investigator determined who he would speak to and what he would put to each witness.
396For there to be a finding of bias there needs to be evidence that the External Investigator has actually not approached his task with an open mind. The fact that Mr Andraos made remarks in his briefing which were unfavourable to Mr Dimovski does not mean necessarily that the External Investigator has failed to approach his task with an open mind.
397Upon a reading of the External Investigator's report (Exhibit 7) I find he approached his task with an entirely open mind. He came to the conclusions that Mr Dimovski acted in a derogatory manner and spoke words of insult regarding Security Operations Manager, Mr Demigilio with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demigilio from his position in an improper (unlawful) way, because of the existence of Mr Calligas' and Mr Vay's Note Books. There were also a number of allegations found to be unsubstantiated which further undermines the contention that the External Investigator was biased or prejudiced from the outset.
398The applicant raised the issue that Mr Vay and Mr Calligas' witness statements were not disclosed to Mr Dimovski because they were Protected Persons. The decision that Mr Vay and Mr Calligas would be Protected Persons was made by the PPU of the Department. Mr Andraos and Mr Townarcki had no input into this decision.
399Mr Calligas had been a Protected Person when earlier allegations were made of inappropriate behaviour displayed by Mr Demigilio in a separate investigation. His position as a Protected Person was compromised when a copy of this earlier report found its way to other staff members. This earlier report was provided to the External Investigator. The applicant submits that because of this there was no basis for the External Investigator's refusal to provide Mr Dimovski with Mr Calligas' and Mr Vay's witness statements. But the fact remained that Mr Calligas and Mr Vay were Protected Persons in terms of this investigation. The External Investigator received papers about the earlier investigation where it was considered that Mr Calligas had been exposed as a Protected Person. The External Investigator chose to keep Mr Calligas as a Protected Person which the External Investigator was free to do.
400The findings of the External Investigator were wide ranging reflecting the breadth of the terms of reference. The External Investigator is not the decision maker consistent with the terms of reference which were given to him. He was to make findings or not to make findings for Management's consideration and action. Mr Townarcki gave evidence that he read the whole report and came to his own view as to whether, on the balance of probabilities, misconduct had occurred. In this instance the Chief Executive, Mr Clout, was the decision maker who made the ultimate decision to dismiss Mr Dimovski.
401Having carefully considered the issues raised by the applicant I am satisfied that a fair and unbiased investigation took place. Mr Dimovski was well aware of the allegations against him, he had an opportunity to respond to those allegations verbally and in writing and he could make any representations to the decision maker before a final decision was made. The questions asked by the External Investigator were designed to elicit whatever relevant information an interviewee had to put forward about Mr Dimovski. Mr Dimovski knew the case he had to answer.
402Therefore in summary, I do not find there was procedural unfairness in relation to the dismissal of Mr Dimovski and as such given the seriousness of the misconduct, I do not find that Mr Dimovski's dismissal was unjust or unreasonable in the circumstances.
403However that still leaves me with the task of determining whether or not in all the relevant circumstances dismissal was too harsh a penalty to have been imposed.
404The issue of harshness and the task required to be undertaken in assessing whether a dismissal was too harsh a penalty, notwithstanding a finding of misconduct, was considered by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 as follows:
27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the excercise of the Commission's powers in relation to unfair dismissal (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No2) (2002) 112 IR 212 at [71] ('Little') stated:
The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.
28 This conclusion must also follow from the very meaning of the concept of "harshness" with s84(1). The words "harsh, unreasonable or unjust" in s84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated". Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne") per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account.
29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of ss84(1), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:
In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order re-instatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.
405It is without question that Mr Dimovski had a totally unblemished 22 years of service with SESI Area Health Service.
406The applicant states that Mr Dimovski is a man of 60 years of age who will have difficulty obtaining further employment. The applicant's dismissal results in a loss of self-esteem, confidence and tremendous upset on Mr Dimovski and his family. There are consequent pecuniary considerations for Mr Dimovski and there is a loss in social standing. The applicant states that there were no warnings given to Mr Dimovski in relation to his conduct and that the alleged intention "to get rid" of Mr Demigilio did not result in the removal of Mr Demigilio from his employment. Mr Dimovski should be reinstated, if not re-employed to another Hospital.
407The respondent states that the nature of the misconduct struck at the heart of the position which Mr Dimovski was employed to do. Further it was not a "one off" lapse in judgement which might be forgiven in the context of a long period of service with an unblemished record. This was deliberate, calculated behaviour that went on for a period of months. The respondent also states that re-instatement is impracticable because the nature of the misconduct has struck at the heart of Mr Dimovski's function and that the chain of command in the Security Department would be unable to function given Mr Dimovski's attempts to undermine it. These proceedings and the events leading up to it have polarised the staff members and relationships are so fractured that re-instatement is not practicable. Given the fact that Mr Dimovski has refused to admit to his actions and maintains that he did not do anything wrong and given the number of employees involved in this matter re-employment would be impracticable.
408Having carefully considered this issue I consider that the decision of the SESI Area Health Service to dismiss Mr Dimovski was too harsh in all the circumstances for the reason that Mr Dimovski has an unblemished record of 22 years in employment with SESI Area Health Service. He is a man of 60 years of age with little likelihood of future employment. I am mindful that Mr Dimovski did not follow the chain of command and did not carry out the functions of his position in that he spoke derogatory words against Mr Demigilio, who was Mr Dimovski's superior. He spoke those words with the intent of having Mr Demigilio removed from his position. Mr Dimovski has breached the Code of Conduct. The respondent has not provided any compelling argument as to why Mr Dimovski should not be re-employed. Therefore I consider that Mr Dimovski should be demoted from his position as a Senior Security Officer at St George Public Hospital to another hospital at a position of Security Officer.
409I make the following Orders: