On 22 June 2020, the applicant, Mr John Dul, filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal following the termination of his employment on 28 May 2020 by Dr Teresa Anderson AM, Chief Executive, Sydney Local Health District ("Application"). The respondent to the Application is the Health Secretary, in respect of Sydney Local Health District ("SLHD"). SLHD was, until 2010, part of Sydney South West Area Health Service ("SSWAHS").
The applicant had been employed at SLHD/SSWAHS as a Mechanical Fitter and Control Room Operator since 7 March 2007.
The dismissal of the applicant followed an investigation by Mr Tony Tabet, Principal Officer, Audit and Investigations, and Ms Narmadha Ravishankar, Workforce Advisor, Workforce District Services of SLHD, into a number of allegations against the applicant and a number of other employees and the preparation of an investigation report which was finalised on 28 October 2019 ("Report").
The termination letter of 28 May 2020 from Dr Anderson contained the following:
I refer to correspondence dated 5 February 2020, from Ms Gina Finocchiaro, Director Workforce & Corporate Operations, Sydney Local Health District (SLHD), in relation to allegations concerning your conduct.
As you are aware, Ms Finocchiaro wrote to you providing the findings of the investigation report that substantiated the following:
• You "presented to work for 2 of Mr Edward Hahu's shifts; however no dates have yet been provided to the Engineering Services Manager, RPAH" (Allegation 6);
• You were "engaging in the breach of the shift swap process to favour Mr Hahu's actions of personal gain" (Allegation 6);
• You "did not seek approval from his supervisor and/ or the authorised person responsible for roster changes to work the 2 shifts" (Allegation 7); and
• You "had known about the process for shift swaps, but preferred to swap shifts without written authorisation from ... Supervisor/Manager and without using the Shift Swap Forms" (Allegation 7).
Consequently, Ms Finocchiaro's letter required you to provide any reasons in writing as to why a recommendation should not be made to the Chief Executive for the termination of your employment.
As such, you provided your written response (the Response) to Ms Finocchiaro dated 21 February 2020 providing reasons that your employment should not be terminated.
Please be advised I have given due consideration to this matter.
You stated in the Response that working in the control room is a "highly responsible job". However, the investigation report made findings that you engaged in breach of shift swap process when you "had known about the process for shift swaps, but preferred to swap shifts without written authorisation from ... Supervisor/Manager and without using the Shift Swap Forms", which indicates that you failed to meet the responsibilities for your position to seek approval.
You also stated in the Response that you "have good rapport with... fellow engineering colleagues". Nevertheless, this is not a reasonable basis for you to engage in shift swaps circumventing the established process, without approval or notification to your manager.
The investigation report highlighted actions unsupported by SLHD which also creates a risk to yourself, other staff as well as the Control Room's ability to provide a continual service delivery to patients and staff.
You have provided no information that causes me to depart from the findings of the investigation report concerning your conduct.
Pursuant to section 119 of the Health Services Act 1997, I have mandatory obligations whereby the protection of patients, clients and children are of paramount considerations on whether to take disciplinary action against a staff member. The findings made by the investigation report involved you engaging in shift swaps with other staff for personal gain, which adversely impacted continual service delivery to patients and staff.
The investigation found you to be in breach of the NSW Health Code of Conduct (PD2015_049). Specifically, the obligations to "ensure their actions and decisions are not influenced by selfinterest or considerations of personal gain or other improper motives" (Section 4.2.3). The investigation team also found that your actions breach the SLHD Rostering Best Practice Policy Compliance Procedure (SLHD_PCP2019_024).
After due consideration of this matter, I inform you that I have lost faith and trust in your ability to comply with your obligations arising from the NSW Health Code of Conduct and your employment contract.
As you are aware, you received a Final Warning regarding a serious omission of duty of care and a breach of the NSW Health Code of Conduct (section 4.3 Acting professionally and ethically) on 1 July 2016.
Accordingly, I advise that your employment is terminated on the basis of a serious form of misconduct of engaging in conduct for personal gain and breach of the NSW Health Code of Conduct (PD2015_049), as detailed in the investigation report.
Your termination will take effect from the date of this letter. You will be paid one weeks' pay in lieu of notice and any outstanding monies owing to you will be paid into your nominated bank account. You are required to return any work belongings, including your staff identification to the Workforce Services Department.
In the Application, the applicant is seeking reinstatement to his former position and monetary compensation.
The "Reasons for Application" section of the Application contained the following:
Factual Background
1. The Applicant commenced employment with the Respondent on 7 March 2007 as a Maintenance Mechanical Fitter. In 2016, the Applicant transferred to be a permanent Mechanical Fitter and Control Room Operator (Position). The Applicant worked at Royal Prince Alfred Hospital (RPA) for the entirety of his employment with the Respondent. The Applicant worked on a full-time basis and performed 4 to 5 shifts per week. The Applicant's shifts were 12 hours long.
2. The Applicant had completed approximately thirteen years and two months continuous service at the time of the dismissal. The Applicant signed a contract of employment when he commenced work with the Respondent. He does not have a copy of this contract.
3. In the Position, the Applicant undertook all roles incidental to the role of a Mechanical Fitter and Control Room Operator. This included maintenance of RPA's:
a) air conditioners;
b) steam boilers;
c) machinery; and
d) pumps.
4. For the duration of his employment with the Respondent, the Applicant performed his responsibilities to a high standard. The Applicant was only subject to two disciplinary matters over his thirteen years and two months of employment with the Respondent. The first disciplinary matter related to an incident on 18 September 2015. The second disciplinary matter led to the termination of the Applicant's employment with the Respondent.
First disciplinary matter - 18 September 2015
5. On 30 May 2016, the Respondent issued the Applicant with a "final warning" in relation to an incident that occurred on 18 September 2015. The circumstances of this incident… can be summarised briefly as follows:
a) the Respondent found that a colleague of the Applicant, Mr Allan Griffiths (Control Room Operator), was intoxicated at the workplace on 18 September 2015;
b) the Respondent alleged that the Applicant failed to report Mr Griffiths' intoxication to his managers and that this jeopardized the safety of staff, visitors and patients of RPA;
c) the Applicant denied the allegations and informed the Respondent that he reported Mr Griffiths' intoxication to his managers on several occasions; and
d) despite the Applicant's denial, the Respondent issued the Applicant with a "final warning".
6. The Applicant submits that receiving a "final warning" was premature in that it was not preceded by a warning and/or it was not otherwise reasonable in the circumstances. Despite this, and although he denied (and continues to deny) the allegations described in relation to the first disciplinary matter, the Applicant accepted the ''final warning" issued to him. He recommitted himself to performing his responsibilities in the Position to a high standard.
7. The Applicant submits that the "final warning" given the circumstances in which it was issued, and its age, is of little if any weight. In this regard, the reference to the first disciplinary matter in the Termination Letter (defined below) is unjust, inappropriate and significantly unfair.
Second disciplinary matter
8. In 2019, several allegations were made by the Respondent against the Applicant in relation to allegedly swapping shifts with his colleagues without approval. The Respondent issued the Applicant with a letter dated 22 July 2019… This letter describes the allegations as follows (Allegations):
"Allegation 1: Mr Edward Hahu, without seeking approval or authority from his supervisor and/ or the authorised person responsible for roster changes, did not attend work for his rostered shifts, and was paid for those 2 shifts as though he had worked them."
Allegation 2: Mr John Dul presented to work for 2 of Mr Hahu's shifts, however no dates have yet been provided to the Engineering Services Manager, RPAH."
Allegation 3: Mr Dul did not seek approval from his supervisor and/ or the authorised person responsible for roster changes to work the 2 shifts."
Allegation 4: There is also a cash payment arrangement between Mr Hahu and/or Mr Dul with working another person's rostered shifts."
Allegation 5: During such shift swaps, Mr Hahu and/ or Mr Dul may have worked continuous night shifts without a break potentially resulting in a work health and safety issue."
a) On 30 July 2019, the Applicant met with the Respondent to provide a verbal response to the Allegations… The Applicant was subsequently provided with an investigation report dated 28 October 2019 (Investigation Report)… The Investigation Report concluded, among other things, that the allegation that the Applicant worked two shifts for Mr Edward Hahu without authorisation to swap shifts was substantiated however, the dates of these shift swaps is not known/recorded;
b) the allegation that the Applicant engaged in a cash payment arrangement in relation to shift swapping was not substantiated; and
c) the allegation that during shift swaps, the Applicant potentially caused a work health and safety issue, was not substantiated.
9. Despite the Investigation Report finding that several of the allegations against the Applicant were not substantiated, the Respondent provided the Applicant with a show cause letter dated 5 February 2020 (Show Cause Letter)…
10. The Show Cause Letter invited the Applicant to show cause as to why a recommendation should not be made to terminate the Applicant's employment. The Applicant provided a response to the Show Cause Letter… The Applicant's employment was subsequently terminated on 28 May 2020 pursuant to a termination letter dated 28 May 2020 (Termination Letter)…
11. For the duration of his employment with the Respondent, swapping shifts occurred regularly. Frequently during his employment with the Respondent, the Applicant was informed by his managers that shift swapping was allowed as long as someone performed the shift. Between 2007 and 2018, Mr Tony Kenny, Mr Paul Cujack, Mr Rodney Janetzki and Mr Matthew Pocock, who each were the Applicant's direct manager at different times, conveyed this to the Applicant.
12. Mr Pocock was the Applicant's manager up until late 2019. In or around early 2019, Mr Pocock said to the Applicant words to the effect of (Mr Pocock's Direction):
"Jessica has given me a form regarding shift swapping. You guys need to fill in this form when you swap shifts."
13. The Applicant understood that Mr Pocock was referring to Ms Jessica Montaner, the Respondent's Engineering Services Manager, who Mr Pocock reported to. The form that Mr Pocock provided to the Applicant and his colleagues to swap shifts (Swap Shifts Form) was different to the form that was provided to the Applicant during his interview with the Respondent on 30 July 2019… The Applicant had not seen that form previously.
14. Following Mr Pocock's Direction, when the Applicant next changed a shift, on 25 April 2019, the Applicant completed a Swap Shifts Form n order to swap his shift. As a former serviceman, the Applicant swapped his shift on 25 April 2019 so that he could take part in ANZAC Day marches. There were no issues that arose from this. The Applicant did not swap shifts again for the remainder of 2019.
15. The Applicant did not swap shifts between when he received Mr Pocock's Direction and the date of the Investigation Report, other than on 25 April 2019, and he used the Swap Shifts Form required.
16. The Applicant acknowledges that he swapped shifts prior to Mr Pocock's Direction without obtaining formal approval from his managers. At all times prior to Mr Pocock's Direction, the Applicant believed that this was permitted, given that his managers had indicated that shift swapping was allowed as long as someone performed the shift.
17. However, the Applicant acknowledges that it may have been more prudent for him to inform his managers when swapping shifts prior to Mr Pocock's Direction. That said, the Applicant submits that the termination of his employment remains considerably harsh and was a significantly disproportionate outcome.
18. The Investigation Report and the Show Cause Letter state that the Respondent does not know the dates that the Applicant swapped shifts with Mr Hahu. The Applicant submits that:
a) before Mr Pocock's direction, he was authorised to swap shifts with his colleagues, including Mr Hahu, without obtaining formal approval; and
b) he obtained formal authorisation to swap his shift on 25 April 2019 (by completing a Swap Shifts Form), and that this was the only shift he swapped after Mr Pocock's Direction and before the date of the Investigation Report.
19. In these circumstances, the Applicant submits that he did not engage in conduct that warranted the termination of his employment.
Dismissal
20. The Applicant submits that the dismissal was harsh, unreasonable and unjust for at least the following reasons.
No basis in fact for the Applicant's dismissal
21. First, there was no reason that "had a basis in fact", as contemplated by section 88(b) of the Industrial Relations Act 1996 (NSW) (IR Act) for the dismissal.
22. In relation to the first disciplinary matter, the Applicant submits that the final warning should have limited if any weight, for the reasons stated.
23. In relation to the second disciplinary matter, the Applicant at all times complied with the established custom and practice in relation to swapping shifts and otherwise in accordance with Mr Pocock's Direction. Even if there was some failing by the Applicant in that regard, which is denied, it did not justify the termination of his employment, particularly in circumstances in which:
a) the Applicant was never formally warned about swapping shifts and the consequences that could arise;
b) the more serious allegation against the Applicant, that he engaged in a cash payments arrangement in relation to swapping shifts, was unsubstantiated; and
c) the Applicant had accrued over thirteen years of employment with the Respondent with a relatively good employment record overall.
No warning
24. Second, there was no proper "warning of unsatisfactory performance" before the Applicant's dismissal, as contemplated by section 88(c) of the IR Act.
Harshness
25. Third, the Applicant submits that the dismissal of the Applicant is otherwise manifestly harsh, pursuant to sub-section 88(f) of the IR Act, because of:
a) the Applicant's strong disciplinary record;
b) the harsh impact of the termination on the Applicant financially and emotionally;
c) the difficulty that the Applicant will experience in obtaining comparable employment, particularly given his age (58 years old). The Applicant has attempted to mitigate his loss by applying for new employment, however, he has to date not been successful in these applications; and
d) the timing and difficulty caused by the COVID-19 pandemic.
26. The Applicant seeks reinstatement to the Position pursuant to section 89(1) of the IR Act, and/or compensation for lost income.
The Employer's Reply filed by the respondent on 1 July 2020 contained the following:
1. Mr John Dul was employed as a Fitter/Motor Mechanic, Engineering Services at Royal Prince Alfred Hospital (RPA) with the Secretary, NSW Ministry of Health, in respect of Sydney Local Health District (the Respondent).
2. The Respondent received concerns raised with a number of staff, including Mr Dul, in the Control Room swapping shifts without following process and approval between 23 March 2018 and 31 August 2018. The allegations relating to Mr Dul were that he worked two (2) shifts of Mr Edward Hahu, Fitter/Motor Mechanic, RPA Engineering Services. Furthermore, it was alleged that Mr Dul did not seek approval to work these shifts.
3. The Respondent conducted an investigation into the allegations. The investigation team interviewed the person raising the concerns, the staff involved in the shift swaps, reviewed timesheets/rosters as well as change of shifts applications made by other staff including Mr Hahu from 2014.
4. The investigation team in their report noted a directive issued in March 2013 to the Control Room staff which required written approval for shift swaps (Directive). Additionally, the investigation report noted that Mr Dul reported in writing that Mr Hahu owed him shifts.
5. The investigation team in their report substantiated, on the evidence, that the Directive regarding the process for shift swaps was hand delivered to all Control Room staff. Furthermore, the investigation report substantiated that Mr Dul "had known about the process for shift swaps, but preferred to swap shifts without written authorisations".
6. Moreover, Mr Dul "did not seek approval from his supervisor and/or the authorised person responsible for roster changes", "presented to work" for Mr Hahu's shifts and was engaged in the breach of the "shift swap process for actions of personal gain", as found by the investigation report.
7. The investigation team concluded Mr Dul's actions were in breach of the NSW Health Code of Conduct. Specifically, in relation to the obligations to "ensure their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives". Furthermore, the investigation report found that Mr Dul breached "complying with all lawful and reasonable directions given by their managers".
8. On 5 February 2020, the Respondent wrote to Mr Dul providing him with an opportunity to respond to the findings of the investigation report and to show due cause why a recommendation should not be made for the termination of his employment on the basis of a serious form of misconduct and breaches of the NSW Health Code of Conduct.
9. Mr Dul provided a written response dated 21 February 2020. The Respondent noted that Mr Dul's response did not reconcile with the findings of the investigation report as he failed to appreciate the seriousness of the misconduct. The Respondent lost trust and confidence in Mr Dul's ability to comply with his obligations arising from the NSW Health Code of Conduct and from his employment contract.
10. The Respondent noted that Mr Dul received a Final Warning on 1 July 2016 for a serious omission of duty of care and a breach of the NSW Health Code of Conduct for an incident on 18 September 2015. The Respondent provided Mr Dul with an opportunity to respond to the alleged conduct on 4 March 2016.
11. The Respondent considered Section 119 of the Health Services Act 1997 where the protection of patients, clients and children is of paramount consideration when determining disciplinary actions against a staff member. After careful consideration, Mr Dul's employment was terminated for engaging in a serious form of misconduct for personal gain as well as breach of the NSW Health Code of Conduct.
12. The Respondent notes that Mr Dul's Application is filed 25 days after the dismissal date, which is 4 days out of time. The Respondent contends that the application is not within jurisdiction.
The respondent's jurisdictional objection on the basis that the Application was filed outside the 21 day time limit provided for in section 85(1) of the Industrial Relations Act 1996 ("Act") was not pressed during the hearing of the Application. Accordingly, the Application will be determined on its merits.
[2]
Background
By letter dated 30 May 2016, Ms Gina Finocchiaro, Director, Workforce Services, SLHD, issued the applicant with a letter which contained a "Final Warning" for failing to report another Control Room Operator who had attended for work in an intoxicated state. The applicant disputed at the time, and continues to dispute, the basis for this "Final Warning". Apart from the matters that led to the applicant's dismissal, this was the only disciplinary issue involving the applicant during the 13 years that he was employed by the respondent.
Mr Dean Benke commenced employment as District Director Engineering Services, SLHD, in September 2017. He became aware that "there were issues in the Control Room and decided it best to introduce a Shift Swap Forms". Ms Jessica Montaner commenced as Engineering Services Manager at Royal Prince Alfred Hospital ("RPA") in July 2018. On 8 October 2018, Mr Benke issued a Shift Swap Form in the format set out at [12] below.
On 2 February 2019, Mr Danasagaran Padayachee, Control Room Operator, approached Ms Montaner and expressed his concerns regarding the transfer of another Control Room Operator, Mr Eddie Hahu, to the Mechanical Fitters' Workshop and alleged that he, Mr Padayachee, had worked five shifts for Mr Hahu during the period they worked together in the Control Room. Mr Padayachee also alleged that Mr Hahu "owed" shifts to the applicant.
Sometime around 25 April 2019, the applicant completed and signed a form that he had been provided with which is set out below:
Engineering Department
Application to Change Shifts
Control Room Staff who require to change shifts need to meet requirement of the Control Room Roster and are required to be pre approved by management.
Step 1 - Applying to Change Shifts
Name of Staff Member requesting John Dul
change of shifts:
Date Change FROM: 25th April 2019
Date Change TO: N/A
Reason: x 3 SHIFTS EDDIE HAHU OWES ME
Signature: Signed J Dul
[3]
Step 2 - Agreeing to Change Shifts
Name of Staff Member Agreeing EDDIE HAHU
to change of shifts:
Date Change FROM: N/A
Date Change TO: ____________
Reason: DUE TO CHURCH
Signature:
[4]
Step 2 - Granting Approval
RPA Engineering Services Manager or Delegate
Date:
Approval/Signature:
Please Note: Approved forms must be attached to timesheet.
[5]
It was the applicant's purpose to have Mr Hahu work the applicant's rostered shift on 25 April 2019 so that the applicant, having served in the military between 1984 and 1989, could participate in the ANZAC Day march. This was approved by management. The applicant claimed that he had previously worked a number of Mr Hahu's shifts.
This ultimately led to the investigation carried out by Mr Tabet and Ms Ravishankar ("Investigators").
Critical to the investigation was an unsigned and undated memo which, according to the Report, was issued in March 2013 by Mr Jon Gowdy, A/Area Director Asset Management, SSWAHS, ("Gowdy Memo"). The Gowdy Memo was in the following terms:
Control Room Staff
Engineering Services RPAH
RE: Control Room Roster
Please note all Control Room staff must strictly adhere to current rosters. Ie. Do not report to work unless you are rostered to report to work.
If you require to make any changes to your roster, this will required preapproval from Rodney Janetzki.
Sincerely
Jon Gowdy
A/Area Director Asset Management
SSWAHS
Attached to the Gowdy Memo was a form, which I will refer to as the Roster Change Form, in the following format:
ENGINEERING DEPARTMENT
Changes to Control Room Roster
Staff Name:___________ Notice Given:______________
Reason for changing roster:
() Sick Leave
() Annual Leave
() Long Service Leave
() Other
Alternative staff contacted to cover shift:
() Name:_____________________________________
Yes, Agreed No, Does not agreed
() Name:_____________________________________
Yes, Agreed No, Does not agreed
Email Staff concerned.
Supervisor's signature:_______________ Date:______
Annexed to the Report were a number of similar forms, including forms apparently completed in November 2014 and signed by Mr Rodney Janetzki as Supervisor on 4 December 2014. I deal further with these forms later in this decision.
[6]
The investigation
The allegations which were the subject of the investigation and the Report were:
1. When Ms Montaner transferred Mr Edward Hahu's place of work from the Control Room to the Mechanical Fitters' Workshop, Mr Danasagaran Padayachee, Control Room Operator, advised Ms Montaner on 2 February 2019 that Mr Hahu owed him 5 shifts whilst they worked together in the Control Room between the dates 23 March 2018 to 31 August 2018.
2. Mr Padayachee worked 5 of Mr Hahu's scheduled shifts which were rostered on the following dates: 23 March 2018, 13 April 2018, 27 July 2018, 24 August 2018 and 31 August 2018.
3. Mr Hahu, without seeking approval or authority from his supervisor or the authorised person responsible for roster changes did not attend work for his rostered shifts, and was paid for those 5 shifts as though he had worked them.
4. Mr Padayachee did not seek approval from his supervisor or the authorised person responsible for the roster to work the 5 shifts.
5. Mr Padayachee agreed to swap shifts with Mr Hahu to extend his period of leave for another 5 days when he goes on holidays without the need to use his leave entitlements.
6. Mr John Dul, Fitter/ Motor Mechanic presented to work for 2 of Mr Hahu's shifts, however no dates have yet been provided to the Engineering Services Manager, RPAH.
7. Mr Dul did not seek approval from his supervisor and/or the authorised person responsible for roster changes to work the 2 shifts.
8. Mr Hahu, without seeking approval or authority from his supervisor and/or the authorlsed person responsible for roster changes, did not attend work for his rostered shifts, and was paid for those 2 shifts as though he had worked them.
9. There is also a cash payment arrangement between Mr Padayachee, Mr Hahu and/or Mr Dul with working another person's rostered shifts.
10. During such shift swaps, Mr Padayachee, Mr Hahu and/or Mr Dul may have worked continuous night shifts without a break potentially resulting in a Work Health and Safely issue.
As part of the investigation, the following SLHD employees were interviewed:
- Ms Montaner
- Mr Matthew Pocock, Mechanical Services Manager
- Mr Hahu
- the applicant
- Ms Carol Lopez, Senior Administrator, Engineering Services
- Mr Gowdy
- Mr Padayachee
- Mr Benke
In her interview with the Investigators on 14 June 2019, Ms Montaner stated that "Shift Changes Forms" have always been in place, however staff had always refused to complete these, preferring to make their own personal arrangements with other staff. She advised that, shortly after starting in her role in July 2018, a new "Shift Change Form" was introduced. Ms Montaner also stated that shift changes are normally agreed to or approved by management, providing sufficient notice is given by the employee. When asked to explain why Mr Hahu did not complete the necessary forms and have them approved by the Manager, Ms Montaner advised that there has been a long term management issue with the Control Room staff. Ms Montaner was also asked whether the Control Room Attendance Book was reviewed daily by a Supervisor, to ensure that the shifts were completed by the staff that had signed in and out and, if so, why was the unapproved shift swapping not detected earlier. She replied that, apparently, the Manager, Mr Pocock, had not been regularly checking the Control Room Attendance Book to confirm the accuracy of the attendance records as being the reason for these swapped shifts not being detected sooner. She claimed that, "[o]verall, it would seem that in the past that there has been a lack of supervision in the Control Room creating a poor control environment". Ms Montaner was not called to give evidence in these proceedings.
On 10 July 2019, Mr Tabet had a brief telephone conversation with Mr Benke. He told Mr Tabet that he became that there were "issues" in the Control Room and decided to introduce Shift Swap Forms. Mr Benke stated that he was more than happy to accommodate any shift changes, particularly with Mr Hahu due to his religious beliefs, but needed him to provide the forms. Mr Benke was not called to give evidence in these proceedings.
Mr Pocock was interviewed by the Investigators on 25 July 2019. He was asked about his responsibilities in the Control Room between March and September 2018, the period when the alleged shift swapping involving Mr Padayachee and Mr Hahu had occurred. Mr Pocock claimed that the procedure was for the Control Room Operators to fill out a form with Ms Lopez in advance and she could change the roster accordingly. He claimed that the form had been in place for the last couple of years. Before that, he was not sure because he was in an acting role and "wasn't aware of it until a couple of years ago". During the interview, the following exchanges took place:
TONY: Okay, so you would compare the control room attendance book to the roster?
MATTHEW: That's right, yep.
TONY: Religiously?
MATTHEW: No.
TONY: Okay.
MATTHEW: To be honest, no; it's a busy job and the main thing I was looking at is that there was always an operator available because a lot of the time we had a lot of trouble with filling the shifts let alone, you know, checking every day this attendance book.
……………………………
TONY: Okay then. It has been brought to our attention that the control room staff had been organising their own shift swaps for the past fifteen years. To your knowledge, were you aware that unapproved shift swapping was occurring amongst the control staff?
MATTHEW: Well I could probably count one or two occasions where I took on the role four years ago to relieve my predecessor who was having surgery and I've since been in this role because he didn't come back, but when I first started I thought nothing more than first two occasions, particularly if there was a wedding; if one of the chaps had a wedding to go to I said - "Okay, as long as the other guy' is happy" But then soon after that I found out that no, you've got to fill out forms and so that's what I implemented that about three or four years ago and since then I haven't heard any requests to swap shifts. I think that was all happening beyond my back. Unless there was I'd always just refer them to Carol if they wanted to swap a shift then she'd have to redraw the roster.
Mr Pocock was not called to give evidence in these proceedings.
Mr Hahu was interviewed on 29 July 2019. During that interview the following exchanges occurred:
TONY: Could you describe your understanding what is the usual process for staff in the Control Room wishing to change their shifts?
EDWARD: Okay, previous to what the new management, Mr Gowdy was the General Manager for the Engineering. I asked him when I had problems with ... because I don't work on Saturday ... sorry, Friday evenings until sunset on the Sabbath … Saturday evening. It is my Sabbath; I go to church. So I asked him if there's any arrangement that can be made to suit me so I don't have to work; somebody can work my shift. And he told me that I can talk to the boys and have them … if anyone's willing to do my shift they can swap my shift so that we can swap between ourselves. And one of the boys, Dan Padayachee, had a look at it, the shift and he said that it is in our union conditions that we are able to do that. So he agreed to do my shift and that's where all this comes in.
NARMADHA: When did you talk to Jon Gowdy about this?
EDWARD: This was when Jon was the manager still downstairs because now Dean Benke has taken over, so this is like two years and before two years.
………………………………
TONY: Okay. To your knowledge, were you ever officially advised of the correct process for shift swapping? Like were you given directions in writing?
EDWARD: We were never given anything in writing. I asked Jon Gowdy myself about it but nothing was written down but I was told that I could ask the boys if they're willing to do my shift if I'm not there and I can do their shift on a different day and they agreed. So if they are not working they will work my shift then whenever they want I can do their shift.
TONY: Okay. So Eddie you've never seen this before this memo that was issued back in March, 2013? (referring to the Gowdy Memo)
EDWARD: No, I haven't seen it myself, no.
TONY: Okay, so that's been signed off by Jon. And what they've done is they've also attached what the required form to be completed and signed. So you're stating that you've never seen that?
EDWARD: Yeah. I haven't seen one with Rodney's name on it; I haven't because it might be in a time when Rodney was here; he was a supervisor.
TONY: Okay, Rodney who?
EDWARD: Rodney Janetzki.
………………………….
TONY: So have you experienced any occasions where your request for a shift change was not approved? So have you approached Jon or anyone else since John if you wanted a shift swap?
EDWARD: After Jon departed?
TONY: Yeah.
EDWARD: Yes there was because we couldn't do that anymore now. Jessica and Dean came in and they stopped it. So every holiday or every sick leave or anything, we have to be able to fill out the forms and have them approved otherwise they won't take it.
……………………………..
TONY: Okay, what about Mr Pocock?
EDWARD: He's our supervisor.
TONY: Okay, so why didn't you approach Matthew?
EDWARD: Oh we have, yeah.
TONY: You have, okay.
EDWARD: Yeah, I've spoken to him personally about these issues and he gave me the same thing, he said if you can, talk to some of the boys if they can help you out then do it the way you guys have been doing.
TONY: Do it the way you guys have been doing it; so did you need to complete any form for approval to be sent in?
EDWARD: We haven't had any, like I haven't seen this one so I can't really say.
……………………………..
TONY: Okay, so what you're saying is Matthew didn't have an issue with you changing shifts providing you could find somebody else
EDWARD: Yes. Providing we have someone there.
TONY: Okay then, but he didn't ask you to complete a form or anything?
EDWARD: No, we've never signed any forms.
The applicant was interviewed on 30 July 2019. He maintained that shift swaps in the Control Room always happened with the agreement of the Manager or Supervisor. It was only in March 2019 that "paperwork" was introduced in relation to shift swaps. Prior to that there were no forms to fill out. He claimed that he had, at different times, approached his Supervisors, including Mr Paul Cujack and Mr Janetzki going back to when he started in 2007. He was shown the Gowdy Memo regarding shift changes which "was apparently sent in 2013" but denied ever having seen it. The applicant stated that he had seen a form at around March 2019 and had filled it out in relation to his request for a shift swap for ANZAC Day that year (at [12]).
Ms Lopez was interviewed on 5 August 2019. During this interview, the following exchanges occurred:
TONY: Carol, I'll start with the questions now. This is to get a better understanding of the process for shift changes and what checks were being done by engineering services,
For the record, could you describe what the usual process was back in 2018 and prior years prior to this latest directive issued in October 2018, for control staff wishing to change shifts?
CAROL: Well, it's my understanding that they needed to obtain supervisor's approval, um, for changing shifts, um, on and off there has been forms that they had to fill in and submit the forms for approval, um, other, other than that, I don't know if there was anything else, but it was my understanding they had to have approval to change shifts.
……………………………..
TONY: In your fourteen years, can you recall whether you received many requests from staff wishing to swap shifts?
CAROL: There is not many requests, no, maybe a couple that l know of, but that's about it.
TONY: A couple?
CAROL: Maybe, I don't know, I can count them with my hands, I will say…
TONY: So, five?
CAROL: Five, six, not more than ten.
……………………………..
TONY: OK, fine, so you've answered that question, ten, I think that's fine. In your opinion, do you believe that shift swaps were occurring amongst staff and were not being approved by the supervisor/manager? In other words, they weren't completing the paperwork?
CAROL: To have it in my opinion, my opinion, yes.
TONY: Having said that, so these, so there were no requests, and approval?
CAROL: Not formal, no.
TONY: Ok. Where you did receive a request, how did you find out? Did the person come to you stating, what, what would they do in the case where they did want and you knew about it?
CAROL: The few occasions that happened, I would have the person come in to me saying that they wanted to change shifts, I will direct them to the manager. I always directed them to the manager. Rod Janevski, and Matthew were the two managers that were running the control room at the time.
TONY: Would they come with the form Carol?
CAROL: Not all, no, no.
TONY: Ok.
CAROL: They would just verbally ask me.
TONY: Would you then complete the form for them and have it approved?
CAROL: No, I would never complete a form.
TONY: So, so someone would come and ask you "I want to swap shifts" and then you would refer them back to...
CAROL: To the Manager.
TONY: And then what would happen, Carol?
CAROL: If the change continued, I would probably get a form, right, signed by the manager, saying that they changed that shift, otherwise I would not hear it anymore.
………………………………..
TONY: Ok. It's been stated that when someone, I'm just confirming with what's been stated, that when they wanted to swap a shift, that they would come to you and ask you that, for instance, that Matthew had told me it was ok to swap shifts and that they would then complete the form, I mean did you get any like that?
CAROL: I never completed any forms.
TONY: They would complete?
CAROL: They would complete the forms and then the manager will sign it.
TONY: OK. Did you get any forms when Matthew was in charge?
CAROL: Did I get any forms? I think when Matthew, before Jessica, you mean before Jessica?
TONY: Before Jessica.
CAROL: No, I will say no. Arr, not that I recall.
…………………………………
TONY: Ok. That's fine. I just want to make it easy for you, that's all, With regards to this directive, some of the staff have stated they had no knowledge of seeing it, um, you were around at the time that this was issued, ok, can you recall how the staff would have received this directive? (referring to the Gowdy Memo)
CAROL: Um, a copy of the memo will have been put out in the control room for all the staff to read.
TONY: Who put it in the control room?
CAROL: Rodney Janevski probably, by the date I would say Rodney Janevski.
TONY: Because he's the person that's in there, yeah.
Have you ever seen it in the control room?
CAROL: I never went up to the control room before. I only started going to the control room more after Jessica started, because I had been going down there more as a support person, so she is not down there with the boys on her own, um, but before I never went to the control room.
TONY: Ok.
CAROL: Very rare.
TONY: And when you did go down to the control room was, I mean, have they got it like on some sort of a notice board? Or?
CAROL: They have papers everywhere in the control room, they got every single sign, memos, anything and everything, but it will have been put in the book, like you know how they got those big books with the log books that they have? Whenever there was something that everybody needed to read it will be just put in there for everybody coming in and reading it, that's what l can say.
TONY: Ok, but you can't....
CAROL: But I haven't seen it.
TONY: Ok, and you can't guarantee that's where it may have been placed?
CAROL: I can't guarantee, yeah, no, I mean, Rodney would be the person that probably was taking it down there because that's how he was running with the staff at the time. He used to go down there and spend a lot of time in the control room, so he would go and put whatever needed to be given to the· boys down there.
NARMADHA: So, they don't sign as an acknowledgement?
CAROL: At that time, no, they didn't.
TONY: Ok.
CAROL: I have to admit they started signing papers once Dean came on board.
TONY: Ok. So, so we are quite certain that the control, the control room staff should have seen it?
CAROL: Oh yes.
TONY: In one way or another?
CAROL: Or another.
TONY: Yeah, ok,
TONY: But we have no real evidence apart from what your understanding is that it is either put inside the logbook or it may have been put on the notice board.
CAROL: That's right, that, as I said before it was given to the manager and the manager was taking it down there, so whatever the manager did at the time, I don't know. I can't guarantee that.
TONY: Ok. The directive shows that it was placed in a HR file.
CAROL: Yes, that was by John Gowdy, I had spoken to Jon Gowdy about this memo as you asked me to and I explained to him your concerns that there, it's in the local health district and his area and he seems to think that it was when he was changing, like the two areas were splitting up and Tony Kenny was the Director of Engineering at the time and he was on leave and John was acting as one and that that's all he told me about, he said "That's all" and he said "and I can guarantee that, that memo went out and that, that they read it", so.
NARMADHA: He can't guarantee that?
CAROL: That's what he said, yes.
NARMADHA: So, this memo went out and did people read it or not?
TONY: Can you repeat that again, you're not, he's not certain whether this went out?
CAROL: No. He guaranteed that this memo was put out and that the control room operators new about it and read it. That's what Jon Gowdy told me the other day when I queried that memo, cause he gave me this, I didn't have it in my records, he actually gave me that copy from his paperwork.
TONY: And, what about the date there, Carol? March 2013, which is a date
you had on your email there.
CAROL: That's all l have, yes. Would it have been 2013?
CAROL: Well, that's what Mr. Gowdy said, so I just gone for what, for what he
told me.
TONY: And, like, you saying you were here since 2004, ok.
CAROL: Yeah.
TONY: Ok, so prior to this issue, the procedure regarding shifts changes would have always been the same? This may have been, would you think?
CAROL: Before, before the roster changed, right, I had nothing to do with the roster, so I didn't know who the roster was run by the control room, the guys were running the roster, no not management.
TONY: Ok.
NARMADHA: The guys in the sense, the supervisor in the control room?
CAROL: Well the supervisor, I, would assume that the supervisor was aware of what was going on in the control room. l don't know but there was a lot of issues with the roster prior to this right, prior to this new roster and my understanding was that what, no one was running it and that was the problem that no one knew who was doing what, who was coming to work, who was not coming to work. I wish I had a copy of the old roster, I just don't know, I just don't know, I don't, cause I had nothing to do with it but it was an based on A, B, C and D.
TONY: A, B, C and D?
Ms Lopez was called to give evidence in these proceedings. Her evidence is dealt with later in this decision.
Mr Gowdy was interviewed on 19 August 2019. During that interview, after Mr Gowdy was taken through the ten allegations that were under investigation (at [18]), the following exchanges occurred:
TONY: So, they're the allegations. The questions ... for the record, could you describe to us what the usual process was back in 2018 and prior years for control staff wishing to swap shifts.
JON: The process was always clarified with the supervisor whether there was any shift changes associated with the roster to reflect that.
TONY: So, was there a form involved, Jon?
JON: It would depend on the nature of the shift change. If it was like within twenty-four hours' notice and it was a phone call to the supervisor ... no. But if it was for holiday leave, or something like that, then definitely a form.
TONY: Okay. All right. So ... so, something that was urgent within a twenty four-hour period, you had that window ... they could ... they could make a call to their supervisor and that would be okay. Yeah, and then if to change the roster then that would be ... that would filter through to Carol? Okay then, did do you have any suspicions that unapproved shift swaps were occurring and supervisor managers were allowing these to occur.
JON: No.
TONY: So, all the supervisor or managers would be aware of any shift changes
JON: To the best of my knowledge, the process was being followed. So, I didn't hear anything from any of the individuals involved, be it supervisors, be it Carol, be it the guys down there that this was happening without authorisation.
TONY: With regards to the directive issue in March 2013, some staff have claimed not to have had any knowledge of seeing it. Could that be possible?
JON: Could it be possible? I look it's going back six years now. It was hand delivered by Rodney at the time to all staff. He reported to me that all staff had the letter. He was their direct supervisor ...
TONY: Okay.
JON: So I took him at his word.
……………………………….
TONY: To your knowledge, did staff question or make any enquiries or did you receive any feedback with regard to that directive, Jon?
JON: Nothing to me.
Mr Padayachee was interviewed on 23 August 2019. He also claimed to have never seen the Gowdy Memo or Roster Change Form prior to being shown it during the interview.
As part of the investigation, the Investigators reviewed the Control Room Roster, the Control Room Attendance Book, the Building Equipment/Malfunction Failure Log Book and employees' timesheets. It was confirmed that a number of Mr Hahu's rostered shifts in 2018 were actually worked by Mr Padayachee without written authorisation from his Supervisor/Manager or a completed form having been submitted.
In the Report Allegations 6 and 7 (at [18]), which involved the applicant working two shifts for Mr Hahu, were substantiated but the dates on which those shifts were worked were not identified. Allegations 9 and 10 were not substantiated.
[7]
Case for the applicant
The applicant's direct Managers/Supervisors were Mr Paul Cujack (from late 2010 to about mid 2011), Mr Rodney Janetzki (from about mid 2011 to 2015) and Mr Matthew Pocock (from 2015 to late November 2019).
In relation to the incident on 18 September 2015 which led to the applicant receiving a "final warning" letter on 30 May 2016, the applicant claimed that it was common knowledge amongst Control Room staff, including Mr Janetzki, who was the applicant's direct Manager at the time of the incident, that the employee concerned was an alcoholic who would attend for work affected by alcohol. The applicant also claimed that, on a number of occasions between 2007 and 2015, he reported his concerns about this situation to management, including to Mr Gowdy himself, but, as far as the applicant was aware, nothing was done about it. He felt that his complaints had fallen on deaf ears.
On 7 October 2015, the applicant attended an interview about the incident on 18 September 2015 and stated that he was not a medical practitioner and could not say for certain, or prove, that the employee concerned was intoxicated on that date. He denied that, by failing to raise his observations of the employee concerned, he had potentially jeopardised the safety of staff, visitors and patients within the hospital. The applicant continued to dispute the "Final Warning" letter of 30 May 2016.
In relation to the shift swapping allegations, the applicant, in his witness statement, stated as follows:
Established custom and practice of swapping shifts in the Control Room at RPA
27. During the whole of my employment at RPA, employees within the Control Room would often swap shifts with each other. I knew this because my fellow employees in the Control Room discussed swapping shifts in my presence and because I observed employees attending for shifts for which they were not rostered, after having swapped with someone else. This was a common practice.
28. In about March 2019, my direct manager at the time, Mr Pocock said to me words to the effect of: 'Jessica has given me a form regarding shift swapping. You guys need to fill in this form when you swap shifts.' (Pocock Direction) At this time, Mr Pocock handed me the form to which he referred (Pocock Swap Shift Form).
29. When he said 'Jessica', I understood Mr Pocock to be referring to Jessica Montaner, Engineering Services Manager at RPA. Mr Pocock reported to Ms Montaner.
30. I was a serviceman between about 1984 and about 1989. In compliance with the Pocock Direction, on or about 25 April 2020 (sic 2019), I used the Pocock Swap Shift Form to swap my rostered shift on 25 April 2020 (sic 2019), so that I could take part in ANZAC Day marches. No issues arose from this. I did not swap any other shifts in 2019.
31. Prior to receiving the Pocock Direction, I understood that the swapping of shifts was allowed as long as someone performed the shift. This was conveyed to me by my direct managers Mr Kenny, Mr Cujack, Mr Janetzki and Mr Pocock. This was conveyed verbally by each of them saying words to the effect of 'I don't mind shifts being swapped as long as someone is there to do the shift.'
32. Prior to receiving the Pocock Direction, I understood that permission or approval for a shift swap could be obtained verbally from my direct manager. This was conveyed to me by my direct managers Mr Kenny, Mr Cujack, Mr Janetzki and Mr Pocock. This was conveyed by the fact that each of them gave verbal permission to fellow Control Room staff to swap shifts and did not ever ask for a written form prior to the Pocock Direction.
33. Whenever someone attended a shift for which they were not rostered, because they had swapped their shift, my direct managers never questioned why they were there, because they had already been informed of the shift swap and had given their verbal permission.
34. Prior to receiving the Pocock Direction, I do not recall ever receiving any verbal or written instructions setting out any other process for swapping shifts.
35. I had never been informed that swapping shifts without a formal or written authorisation from my direct manager could result in disciplinary action. If I had been aware that this could be the consequence, I would have obtained formal or written authorisation.
36. I perceive this to be apparent from my compliance with the Pocock Direction in April 2020 (sic 2019).
Allegations against me
37. On 22 July 2019, I received a letter, given to by Dean Benke by hand, and signed by Narmadha Ravishankar, Workforce Adviser, District Workforce Services, Investigations Officer, Sydney Local Health District. The letter informed me that Ms Ravishankar and Tony Tabet, Principal Officer Audit and Investigations, had been asked to conduct an investigation into 5 specified allegations. The letter further invited me to attend an interview at 9 AM on 30 July 2019 to respond to the allegations.
……………………………….
39. On 30 July 2019, I attended the interview.
………………………………..
[8]
The alleged direction in 2013
41. During the interview, I was asked words to the effect of whether I had ever swapped shifts with my colleague, Edward Hahu.
42. I responded with words to the effect of 'Yes, but it occurred eight or nine years ago'.
43. During the interview, Ms Ravishankar and Mr Tabet presented me with a memo, which they suggested had been issued in 2013 by Mr Gowdy regarding shift changes (Gowdy Memo). They also provided me with a document entitled 'Changes to Control Room Roster' (Roster Change Form), which they suggested was a form required to be filled out whenever employees swapped shifts after the Gowdy Memo was issued.
44. I had never seen either the Gowdy Memo or the Roster Change Form before, prior to the investigation interview on 30 July 2019.
45. I said to Ms Ravishankar and Mr Tabet: 'This is the first time I've seen it'.
46. I also said: 'Never ever seen it, and it was never mentioned by anyone to me, including my previous managers'.
47. I also said words to the effect of: 'Why these forms weren't completed back then is because they were never sighted or mentioned.'
48. After the interview, I called Mr Tabet and asked him for a copy of the Gowdy Memo and Roster Change Form.
49. He said to me words to the effect of: 'Why do you need the documents?'
50. I said words to the effect of: 'I'm entitled to get copies of the documents. I will seek legal advice if you refuse.'
51. Approximately, one week later, I received copies of the Transcript of Interview, the Gowdy Memo and the Roster Change Form by registered post to my home address.
………………………………..
53. The Gowdy Memo, as sent to me, is undated and has no signature.
54. The Gowdy Memo is stated to be from 'Jon Gowdy, A/Area Director Asset Management, SSWAHS'.
55. However, in 2013, to my knowledge, there was no Acting Area Director Asset Management for the Sydney Local Health District, as Debbie Flood was in the role of Area Director Asset Management for the Sydney Local Health District.
56. Further, the Gowdy Memo refers to 'SSWAHS', which to my knowledge, is the Sydney South West Area Health Service, and not the Sydney Local Health District.
57. To my knowledge, the Sydney South West Area Health Service did not exist in 2013.
58. I knew this because RPA was previously within the Sydney South West Area Health Service and then in about 2011, the letterheads on documents we received changed to 'Sydney Local Health District' and we were given new uniforms with new labels entitled 'Sydney Local Health District' when previously the labels on our uniforms had read 'Sydney South West Area Health Service'.
[9]
Swapped shifts
59. But in any event, I said during the interview words to the effect that any shifts that I swapped with Mr Hahu, which was the allegation, had happened eight or nine years ago.
60. Eight or nine years prior to 2019 would be 2011 or 2010, before the Gowdy Memo would have been issued (although I don't believe it was issued or at least I never saw it).
[10]
Carol Lopez
Ms Lopez swore an affidavit which was tendered into evidence. It contained the following:
14. To the best of my knowledge and recollection:
a. It was common practice for Matthew Pocock or the immediate managers of the Control Room staff to sign and date the Changes to the Control Room Roster, which I relied upon to process pay of the Control Room staff because some of the Control Room staff refused or chose not to sign the Changes to Control Room Roster form. If there were any issues with their pay processed it was common for the Control Room staff such as the Applicant to let me know if they had any issues; and
b. It was common practice for any Memos from senior management such as Mr Jon Gowdy for the attention of Control Room staff to be printed and delivered by the immediate managers such as Mr Paul Culjack or Mr Rodney Janetzki or Mr Matthew Pocock to deliver these Memos in person to each of the Control Room staff or leave it in the log books in the Control Room for each of the Control Room staff to read.
c. It was also common practice for me to write any changes to the Changes to the Control Room Roster form after I had checked this with the relevant Control Room staff. Annexed as Annexure CL9 is a copy of my handwritten notes on the Changes to Control Room Roster for Eddie Hahu, David McWhinney and David Dernedde for the period between November 2014 to December 2014.
d. Annexed as Annexure CL10 is a copy of the Changes to Control Room Roster signed by Matthew Pocock for the Eddie Hahu and Malcolm Johnston dated 30 November 2015, which is attached to show this was similar to what Mr Pocock's practice was for the Applicant.
e. It was not common practice for each of the Control Room staff to sign on and date those Memos until about two years ago shortly after Mr Dean Benke, District Director of Engineering Services at SLHD issued the Memo dated 8 October 2018 regarding Control Room Changes to Mr Jon Gowdy. Annexed as Annexure CL11 is a copy of the Memo from Dean Benke to John Dul dated 8 October 2018.
Annexure CL9 to Ms Lopez's affidavit comprised five forms in the same format as that set out at [16] above which was the Roster Change Form issued with the Gowdy Memo. These forms dealt with overtime shifts to be worked by the employees named at paragraph 14c of Ms Lopez's affidavit, Mr Hahu, Mr McWhinney and Mr Dernedde, to cover for other employees on annual leave, sick leave and the like. Each form was signed by Mr Janetzki and dated 4 December 2014. According to Ms Lopez, the notes on the forms were in her handwriting. No form was signed by any of the affected Control Room Operators. I deal further with these forms at [76]-[77] and [90]-[98] of this decision.
Annexure CL10 to Ms Lopez's affidavit comprised three forms, two of which concerned Mr Hahu changing from morning shift to night shift on 30 and 31 January 2016. The third form concerned Mr Malcolm Johnston changing from morning shift to night shift on 16 February 2016. The three forms were signed by Mr Pocock and dated 30 November 2015. None of these three forms was signed by an affected employee. Next to the word "Other" under "Reason for changing roster" were printed the words "Short Staff". The format of these three forms, one of which is set out below, is similar but not identical to the format of the Roster Change Form set out at [16] above which was issued with the Gowdy Memo:
[11]
Changes to Control Room Roster
Staff Name: Eddie Hahu___ Notice Given:30th November 2015_
DATE: Saturday 30th January 2016______
SHIFT: Changing from Morning Shift to Night Shift
Reason for changing roster:
() Sick Leave
() Annual Leave
() Long Service
() Other - Short Staff
Yes, Agreed No, Do not agreed
Employee's Signature: _______________ Dated: _____________
Supervisor's signature: signed M Pocock__ Dated:30/11/15__
Please return to Carol Lopez by Friday 18th December 2015
Annexure CL11 to Ms Lopez's affidavit was a copy of a memo to the applicant dated 8 October 2018 from Mr Benke. The subject of the memo was "Control Room Changes" and the recipients of it were advised, amongst other things, "that all shift swaps must be applied for and approved by a Senior Manager by using the attached form". The format of the form, which was attached to the memo and which I will refer to as the Shift Swap Form, was the same as that set out at [12] above but the word "DRAFT" appeared on it as a diagonal watermark.
In response to paragraph 44 of the applicant's witness statement where he claims that he had never seen either the Gowdy Memo or the Roster Change Form prior to his interview with the Investigators on 30 July 2019, Ms Lopez annexed to her affidavit two "Changes to Control Room Roster" forms signed by Mr Pocock and dated 27 July 2016 and 1 August 2016 (Annexures CL2 and CL3). These two forms deal with overtime to be worked by the applicant on certain dates in August and September 2016 to cover for another employee on annual leave. The space on both forms for the applicant's signature is left blank. I note that both of these forms are different to the Roster Change Form issued with the Gowdy Memo (at [15]-[16]). These forms, one of which is set out below, are also different from the form set out at [38] above:
[12]
Changes to Control Room Roster
Staff Name: John Dul
Notice Given: 28th July 2016
DATE: Overtime - 30 August - 6 & 7 September - 22 September
SHIFT: Overtime as per the attached roster
Reason for changing roster:
() Annual Leave
I acknowledge change to the roster.
Supervisors' signature: signed M Pocock__ Dated: 27/7/16
Employee's Signature: _________________ Dated: ____________
Please signed and return to Carol Lopez by Monday 2nd May 2016
[13]
Jon Gowdy
Mr Gowdy's affidavit contained the following responses to the applicant's witness statement:
11. As to para 27 of the Statement I am not aware of this shift swap arrangement as being common practice.
12. As to para 32 of the Statement I do not consider it is the prerogative of any Control Room staff to change any of their shifts without the prior approval of their direct manager. Rosters are built around the appropriate hours being worked by each staff member during the roster period. Unauthorised shift changing impacts on this as the roster clerk does not know to make adjustments and can lead inadvertently to staff working too many hours for their given roster. Flow on implications of this can be either safety related through overwork and unplanned overtime expense
13. I deny para 34 of the Statement because I recall assisting Mr Janetzki with writing the Memo regarding shift swaps.
14. As to para 53 of the Statement I confirm the Memo is unsigned by me.
15. I deny para 55 of the Statement because Debbie Flood was not in the role of Area Director Asset Management for SLHD as she was in the position of Director of Capital Works at SLHD.
16. As to para 56 of the Statement, the reference in the Memo to 'SSWAHS' was from an old signature block of mine which on occasion l continued to use after SSWAHS ceased to exist. I confirm I prepared the memo when I was part of SLHD.
[14]
Narmadha Ravishankar
Ms Ravishankar annexed to her affidavit a copy of the Report that she co-authored with Mr Tabet which, together with annexures, totalled 323 pages. Her affidavit contained the following responses to the applicant's witness statement, which I deal with at [78]-[107] of this decision:
6. I have read the statement of John Dul dated 14 August 2020 (Statement).
7. I deny paragraph 27 of the Statement because during the interview with the Applicant on 30 July 2019 when he was asked why he or any other Control Room staff member would not report shift swaps to their supervisor or manager, the Applicant responded with "Personally me, I wasn't there, so I don't know."….
8. l deny paragraph 28 of the Statement because neither Mr Matthew Pocock or the Applicant never referred or mentioned this during their interviews on 25 July 2019 or 30 July 2019 which was held for the purposes of the Investigation.
9. Mr Matther Pocock also confirmed that "all the Control Room operators knew the due process of shift swaps and alleged that those involved in unapproved shift swaps did not avail written authorisation in the shift swap forms to avoid the rigmarole of paperwork for their convenience."...
10. I deny paragraph 29 of the Statement because the Applicant never referred or mentioned this during the Interview with him on 30 July 2019.
11. I deny paragraph 30 of the Statement because the Applicant in his interview on 30 July 2019 had stated "I didn't see that form until early this year, around about March, because I filled one out, on April the 25th, for ANZAC Day." I consider the Applicant to have referenced ANZAC Day in 2019…
12. I deny paragraph 31 of the Statement because the Applicant never referred or mentioned this during the Interview with him on 30 July 2019.
13. I deny paragraph 32 of the Statement and rely on the Changes to Control Room Roster forms as completed by Mr Edward Hahu and Mr David McWhinney as set out in Tabs 41 to 44 of the Investigation Report.
14. l deny paragraph 33 of the Statement for the same reason as set out in paragraph 7 above.
15. l deny paragraph 34 of the Statement because in Mr Matthew Pocock's Transcript of Interview dated 25 July 2019 he stated "... But then soon after that I found out that no, you've got to fill out forms and so that's what I implement that about three or four years ago and since then I haven't heard any requests to swap shifts."...
16. I deny paragraph 35 of the Statement because the Applicant never referred or mentioned this during the Interview with him on 30 July 2019.
17. I deny paragraph 36 of the Statement for the reason as outlined in paragraph 11 above.
18. I deny paragraph 42 of the Statement because of the inconsistencies in the Applicant's Transcript of Interview for the Investigation where he stated "It's going back a long time now, for me, because when I changed shifts this is going back, probably seven, eight years ago, whatever now'' and also stated "You know because it's going back, probably, eight, nine years now, and would've been, maybe one or two? I actually forgot all about it. It's been that long."…
19. I deny paragraph 59 of the Statement and I rely on my preceding paragraph 18 above.
20. I also note that the Applicant completed the Application to Change Shift forms on 25 April 2019 where he stated the Reason as " x 3 shifts Eddie Hahu owes me" of which no dates were provided by the Applicant. However in the interview with the Applicant on 30 July 2019 in response to the question "Do you recall how many shifts were involved, and the dates?" the Applicant responded with "Dates? No idea. Couldn't tell you. You know because it's going back, probably, eight, nine years now, and would've been, maybe one or two?..."...
21. As to paragraph 44 of the Statement, I deny the Applicant's statement that he had never seen the Roster Change Form before, prior to the investigation interview on 30 July 2019 because during the Interview with him on 30 July 2019 the Applicant admitted "I didn't see that form until early this year, around about March, because l filled one out, on April the 25th for ANZAC Day."
[15]
Gina Finocchiaro
Ms Finocchiaro's affidavit had annexed to it a number of NSW Health policies which, it was said, the applicant had breached.
In response to the applicant's witness statement, Ms Finocchiaro stated:
22. As to paras 27, 31, 34 and 35 of the Statement, to the best of my knowledge, I understand that the issue of shift swapping was addressed with Control Room staff at the time when the new Human Resources Information system (Stafflink) was implemented in 2013 and again when the new rostering system (HealthRoster) was implemented in 2017.
23. This was addressed by various meetings at which the Applicant and the union organiser from ETU were present.
Also annexed to Ms Finocchiaro's affidavit was a document titled "AGENDA" which she described as a letter sent by Control Room staff outlining their agenda items for an Engineering Services Department meeting to be held on 18 December 2018 which, according to Ms Finocchiaro, "outlines the Control Room staff knowledge of the requirement to seek prior approval to swap shifts". That document, which appears to have been authored by Mr Hahu, contained the following:
(5) The Antidiscrimination act of 1977- says that we been victimised on certain occasions- our culture, discriminated against in swapping duties- over 15 years we have been doing , this matter will be taken up to the commissioner or the higher authority. I have spoke to you, Dean, Jessica, Carol. My situation ..several occasions I have been turned down so this matter has been taken up to high authority..James also been victimized or discriminated by Paul and he has been fired, because he threw his food on the floor.
This is an on-going situation and
No feed back
John Gowdy was supposed to give us a letter in regards to the change of roster which he mentioned that the commissioner gave him permission to change our roster (last meeting with the commissioner). So they need to have a look at the letter now!
(6) We are taking action of the Antldlscrimination act of 1977- I Edward Hahu have been victimized for my culture and religion. On Thursday 13/12/2018, I went to see Carol Lopez to hand in my time sheet and other leave form- after I left, I was called back to explain again and again why I have been taking Saturdays off. I explained this situation at a previous meeting dated 03/12/2018 to the Engineering Services Management which included Dean Benke, Jessica Montaner and Carol Lopez. However Dean Benke decided he has no time and that he was busy and not interested anymore by his action. My colleagues, James Hari Narayan, Dan Padayachee,and John Dul follow our cultures and religions we had no hassles' all this years swapping our duties according to our policies of swapping duties. We like to know which manager implemented this rules and regulation regarding this matter. We have been swapping shifts all this years until now...we the above mentioned are taking this matter to the Court of tribunal. This is harassment and bulling!
The Antidiscrimlnation act of 1977- I Edward Hahu been victimised on certain occasions- including my and religion culture. Not only me but my colleagues are also been discriminated against for swapping duties- over 15 years we have been doing shift swapping and we had no problems. This matter will be taken up to the commissioner or the higher authority. I have spoken to you, Dean, Jessica, Carol about my situation on two occasions, however, I have been turned down so this matter has been taken up to high authority. Recent incidents includes, James Hari Narayan also been victimized or discriminated against three (3) times in the control room, but no action has been taken, and previous to this, another operator by name of Paul who has been fired, because he threw his food on the floor in the control room. This is an on-going situation and we have No feedback on this issues.
We are still going to court
We the undermentioned will be Representing the Control Room in the meeting.
EDWARD HAHU
DAN PADAYACHEE
JAMES HARI NARAYAN
[16]
Consideration
The applicant has maintained that, for the one or two shifts he worked for Mr Hahu seven, eight or nine years ago, he had obtained verbal approval from his direct Supervisor at the time, Mr Cujack or Mr Janetzki. There is no evidence before the Commission to contradict this assertion. On the contrary, Ms Lopez was aware of the practice of Control Room Operators swapping shifts without written approval from their Supervisor as the following extract of the transcript of her interview with the Investigators on 5 August 2019 demonstrates:
TONY: Do you know if any other supervisor/manager, at the time, would have allowed staff to rearrange internally their own shift swap forms without the necessary paperwork being completed?
CAROL: Ummm, probably.
TONY: Probably? That?
CAROL: Oh my God.
TONY: Do you want to expand?
CAROL: I will say yes. I will say, I have to be honest here, I hate doing this but I'm going to be honest here. Matthew will probably be the person that will say to them they can do whatever they wanted to. Not Jon Gowdy though.
TONY: Ok. Thank you. Matthew has been in that position for so many years?
CAROL: He has been there since Rodney left. My god. I don't know, maybe four to five years he has been in that position, I think. I'm, I'm not very good with dates so,
CAROL: But, yeah, he has been there since Rodney left.
TONY: Yeah. Would Rodney have been guilty of that too? As well?
CAROL: Maybe to a point, yes, maybe to a point, but not as much as Matthew maybe. Matthew trusted them more.
TONY: ls there any reason why Matthew would allow that to happen? I mean the process is there for it to be done...
CAROL: I have no idea, but I that's my opinion anyway, I can't prove that you know, but I will say it, that in my view, probably would allow them to do so, you know.
TONY: Will allow, but did it actually happen, do you think?
CAROL: I can't prove this, right, but in my opinion, because I was running the roster on a daily basis, I can tell you that I know that because I used to say to them, they are changing shifts and you're not doing anything, you know and I was telling Jon and I was telling Matthew and I was telling Rodney, you know, you could feel it, you know, like you can't prove it, but you can feel it, that they, there was something going on down there.
TONY: What was Jon's reaction?
CAROL: Nothing. This is what came, prompted that.
TONY: And what was Rodney's reaction?
CAROL: Rodney, as Matthew, both of them were a little bit laidback, they wanted to be friends with the guys, and they didn't want to do the wrong stuff to the guys. They kept saying the control room is important, we need to have them on our side, you know, like don't stir the pot.
During cross-examination, Ms Lopez was taken to the transcript of her interview with the Investigators. The following exchanges occurred:
Q. So if I can take you to page 132 ..(not transcribable).. about a third of the way down the page, Ms Lopez, Mr Tibet asks you:
"Do you know if any other supervisor or manager at the time would have allowed staff to rearrange internally their own shift swap forms without the necessary paperwork being completed?"
Can you see that?
A. Yes.
Q. And you respond, "Um, probably", you see that?
A. Yes.
Q. Then down the bottom of the page you say:
"I will say, yes, I will say I have to be honest here, I hate doing this, but I'm going to be honest here, Matthew will probably be the person that will say to them they can do whatever they wanted to."
Can you see that?
A. Yes.
Q. Then on page 133 a bit further down Mr Tibet says to you:
"Yeah, would Rodney have been guilty of that too as well?"
Can you see that?
A. Yes.
Q. And can you see your response that says:
"Maybe to a point, yes, maybe to a point, but not as much as Matthew maybe, Matthew trusted them more."
A. That's correct.
Q. So you suspected Mr Pocock was telling employees in the control room that they could rearrange internally their own shift swaps without the necessary paperwork?
A. Well, I was suspecting that things were happening in the control room that Matthew were aware of it and he wasn't acting on it.
Q. But the question that you were asked was do you know if any other supervisor or manager would have allowed staff to rearrange internally their own shift swap forms without the necessary paperwork?
A. Yeah.
Q. And you said yes to Matthew Pocock, didn't you?
A. Yes, I did.
Q. And you also said yes--
A. Because I thought that Matthew was aware of what was going on in the control room and not was acting on it.
Q. And you also suspected that Mr Janevski - sorry, just to go back, Ms Lopez, you specifically say, "Matthew will probably be the person that will say to them they can do whatever they wanted to"?
A. That's correct.
Q. That's different, isn't it, to just being aware of what's going on and not acting on it?
A. Well, I don't know what Matthew was doing with the control room, but I do know that Matthew was probably a lot more laid back with the control room
guys than any other supervisor at the time.
Q. No, I understand that you don't have direct knowledge of what Matthew would have said, but--
A. Yeah.
Q. You said in this interview it is, "Matthew will probably be the person that will say to them they can do whatever they wanted." Isn't that what you said?
A. He will probably be the person if there was a person, he will probably be the person that will say that, yes, if there was a person. I wasn't sure. That's not saying that I am sure, it says - I say here that I will probably - if there was a probability of a person doing that, Matthew will have been that person.
Q. And you said that it was probable, didn't you, you said--
A. Probably, yes, probable, yes.
Q. And you informed the interviewers of this, this is part of the transcript here?
A. Yeah.
Q. Then further down this page you say, "In my opinion", that, "In my opinion", can you see that? It's--
A. Page 133?
Q. Yes, it's the paragraph said by you which starts, "I can't prove this, right, but in my opinion"?
A. Okay, yeah, yeah.
Q.
"Because I was running the roster on a daily basis I can tell you that I know that because I used to say to them, 'They are changing shifts and you're not doing anything', you know, and I was telling John and I was telling Matthew and I was telling Rodney, you know, you could feel it, you know, but you can't prove it, but you can feel it that they - there was something going on down there."
You see that?
A. Yes.
Q. Now, what was it about running the roster on a daily basis that caused you to form the view that employees in the control room were rearranging their shifts or not working shifts in accordance with the roster?
A. There was something to the - with the timesheets and the roster, I can't be point the finger on it, but there was something there that it was making me think there was something going on down there that management was not aware of it. There were little things, little things, I don't know, the way the roster was made, there's things that they were writing on the rosters and things on the timesheets and things like that that made me thought of that. I mean I had to report it, I mean, you know, like there wasn't anything specific that I saw or heard or done anything, it's just that I had my suspicions and I thought I better let it go, let it know by management, you know, that I had my suspicions, but, you know, no-one listened, so--
Q. So you thought management - you assumed that management wasn't aware of it and that you should let them know?
A. I assumed that it was my duty to let them know what I thought that it might be going on in the control room, yes.
Q. And the management that you refer to that you informed is John, you say here, and that's a reference to John Gaudi, is it?
A. That's correct.
Q. And you also say you were telling Matthew and that's a reference to Matthew Pocock?
A. Matthew Pocock, yes.
………………………………
Q. Okay, but both during Mr Janevski's tenure in that role of direct supervisor and in Mr Pocock's tenure in the role of direct supervisor of the control room you raised these issues?
A. I let them know about my suspicions, yes.
Q. And that's over a period of many years?
A. Well, yes, probably.
Q. Now, you were asked by Mr Tibet in the sentence that immediately follows is, "What was John's reaction?", can you see that?
A. Mm-hmm.
Q. And you say, "Nothing", can you see that?
A. Yes.
Q. So he did not act on your suspicions, Mr Gaudi did not act on your suspicions?
A. I was not aware of any actions or if he acted, he acted behind my knowledge, I don't know.
Q. And Mr Tibet then asks you, "What was Rodney's reaction?", can you see that?
A. Yes.
Q. And you say:
"Rodney and Matthew, both of them were a little bit laid back. They wanted to be friends with the guys and they didn't want to do the wrong stuff to the guys. They kept saying, 'The control room is important. We need to have them on our side', you know, like, 'Don't stir the pot'."
Can you see that?
A. Yes.
Q. So just to summarise here, Ms Lopez, you put both Mr Janevski and Mr Pocock, the direct supervisors of the employees in the control room, on notice of your concerns that rosters weren't being followed?
A. Yes, that's correct.
Q. And in response to your concerns they both said to you words to the effect of, "Don't stir the pot"?
A. That's correct.
Q. They wanted to keep the control room employees on their side, as you say?
A. Yes, be friendly with them.
Q. Keep them happy?
A. That's right, keep them happy.
Q. And their reaction essentially told you that they weren't interested in investigating the matter, is that right?
A. Again that's what they told me. I don't know if they acted behind my back. I'm not sure what they did, you know, what actions they took, I'm not aware of it.
Q. But the problem persisted over the years so that you first told Mr Janevski and then you went and told Mr Pocock later on, so--
A. That's correct, yes.
Q. ..(not transcribable)..
A. The problem persisted for a long time.
………………………………..
Q. … Okay, so he says to you during this interview:
"In your opinion do you believe that shift swaps were occurring amongst staff and not being approved by the supervisor/manager, in other words, they were ..(not transcribable).. completing the paperwork?"
Do you see that?
A. Yes.
Q. And you respond:
"To have it in my opinion, my opinion, yes."
Is that correct?
A. Yes.
Q. And then Mr Tibet says:
"So there were no requests and approval?"
and you say:
"Not formal, no."
Is that--
A. That's correct, yes.
Q. So by that you meant there might have been informal approval given?
A. Well, what I meant by that was that I didn't have any paperwork to back anything up, but I had my suspicions that they were going - they were happening.
Ms Lopez was cross-examined about having raised with Mr Gowdy, Mr Janetzki and Mr Pocock her suspicions that employees in the control room were not working in accordance with their roster and the response from Mr Janetzki and Mr Pocock was in words to the effect of "Don't rock the boat, we need these guys on our side".
Ms Lopez claimed that she raised her concerns about the Control Room Operators swapping shifts with management of the Engineering Services Department but, on the evidence before the Commission, nothing was done about the matter until Mr Benke issued the memo on 8 October 2018 which is referred to at [39] above, together with the Shift Swap Form, an example of which is set out at [12] above.
[17]
The AGENDA
Further, the "AGENDA" document relating to the meeting on 18 December 2018 which was annexed to Ms Finocchiaro's affidavit, part of which is reproduced at [45] above, asserts that Control Room Operators "had no hassles' all this years swapping our duties… swapping shifts all this years until now…" and have been "swapping duties- over 15 years we have been doing shift swapping and we had no problems". This should have alerted management of the Engineering Services Department to the fact that Control Room Operators had, for many years, been swapping shifts amongst themselves without documented approvals from their Supervisors as it is common ground that shift swaps over this period were not supported by documented approvals or changes to the roster. However, the issue of Control Room Operators swapping shifts without formal approval was not investigated until July 2019 and only after Mr Padayachee and the applicant raised the issue of Mr Hahu owing them shifts.
[18]
The Report
Set out below are some of the critical findings against the applicant contained in the Report with respect to Allegation 6 (at [18]):
Summary and Findings
10.110 Mr Dul and Mr Hahu admitted that they had undertaken unapproved shift swaps; that is without written approval from the Supervisor/Manager in the shift swap form. However, the Investigation Team could not validate these statements from the review of the available physical evidence; that is, the Control Room Attendance Book, the Building Equipment/Malfunction Failure Log Book and the Timesheets, because the exact dates of those unapproved shift swaps were unknown.
10.111 Mr Dul alleged that he had no knowledge of the process for shift swaps until April 2019 and he had verbal authorisation from his Supervisor/Manager for the shifts he swapped with Mr Hahu. He also alleged that no Control Room Operator was aware of the shift swap forms. However, this claim of Mr Dul is not supported on the balance of probability as established in Allegation 1 and 2 because:
* Mr Gowdy and Ms Lopez confirmed that Mr Janetzki hand delivered the Directive issued in 2013 on the process for Shift Swaps to all the Control Room Operators.
* Investigation team cannot validate Mr Dul's claim as the Supervisor/Manager Mr Janetzki and/or Mr Cujack are no longer working with the district. Mr Gowdy who was then the Engineering Services Manager denied this claim and confirmed that the process for Shift Swap always involved written approval from the Supervisor/Manager in the shift swap form.
* The current Supervisor/Manager of the Control Room, Mr Pocock confirmed that all the Control Room Operators were aware of the due process for shift swap and the forms to be used.
* The evidence of Mr Hahu and Mr McWhinney using shift swap form to seek approval to swap shifts in 2014.
10.112 As listed in the evidence, Mr Dul reported to Ms Montaner in writing that Mr Hahu owed him three shifts. But during his interview with the Investigation team on the 30 July 2019, he advised that he could not recollect the number of shifts he covered for Mr Hahu; he said it may be one or two shifts. Thus, his statement is found to be inconsistent, and not credible.
10.113 Mr Dul confirmed that he involved in unapproved shift swaps with Mr Hahu to support him forbid working the Friday night shifts due to his religious reasons. As established in Allegations 1, 2 and 3, on the balance of probability, Mr Hahu was engaging in the breach of the shift swap process for actions of personal gain. Thus, on the balance of probability, the Investigation team is of the view that Mr Dul was also engaging in the breach of the shift swap process to favour Mr Hahu's actions of personal gain.
Allegation 7 against the applicant (at [18]) was also found by the Investigators to be sustained on the basis of similar findings. These findings by the Investigators were essentially adopted by the management of SLHD and this ultimately led to the dismissal of the applicant "on the basis of a serious form of misconduct of engaging in conduct for personal gain…" (at [4]). Putting aside that this reason for the applicant's dismissal is not consistent with the finding of the Investigators at paragraph 10.113 of the Report which was to the effect that the applicant was "engaging in the breach of the shift swap process to favour Mr Hahu's actions of personal gain", whatever that is supposed to mean, and putting aside the difficulty in discerning how working shifts for Mr Hahu for which the applicant was not paid, constituted engaging in conduct for the applicant's personal gain, there are a number of aspects of these findings which I find troubling.
Firstly, the applicant did not admit that he "had undertaken unapproved shift swaps; that is without written approval from the Supervisor/Manager in the shift swap form". The applicant has consistently maintained that he had verbal approval from the Supervisor to swap shifts with Mr Hahu, which was the accepted practice at the time. During his interview with the Investigators on 30 July 2019, the applicant claimed that he had never seen the Gowdy Memo or the Roster Change Form that was issued with it (at [15]-[16]).
Secondly, neither Ms Lopez nor Mr Gowdy were able to confirm "that Mr Janetzki hand delivered the Directive issued in 2013 on the process of Shift Swaps (the Gowdy Memo) to all the Control Room Operators" including the applicant.
In her interview with the Investigators Ms Lopez initially stated that "a copy of the memo will have been put out in the control room for all the staff to read" by "Rodney Janevski probably, by the date I would say Rodney Janevski". She couldn't guarantee where the Gowdy Memo may have been placed. She agreed that her understanding was that it was "either put inside the logbook or it may have been put on the notice board" but she stated that "it was given to the manager and the manager was taking it down there, so whatever the manager did at the time, I don't know. I can't guarantee that" (at [26]).
In his interview with the Investigators, Mr Gowdy, when it was put to him that "some staff have claimed not to have had any knowledge of seeing it (the Gowdy Memo). Could that be possible?", responded "Could it be possible? I look it's going back six years now. It was handdelivered by Rodney at the time to all staff. He reported to me that all staff had the letter. He was their direct supervisor… So I took him at his word" (at [28]).
In his affidavit, Mr Gowdy denied the applicant's claim that, prior to March 2019, he did not recall ever receiving any verbal or written instructions setting out any process for swapping shifts other than by obtaining verbal approval from his direct Manager, "because I recall assisting Mr Janetzki with writing the Memo regarding shift swaps". He confirmed that he did not sign the Gowdy Memo (praragraphs 13-14 at [41]). Mr Gowdy did not, in his affidavit, refer to the issue as to how the Gowdy Memo was hand delivered to all of the Control Room Operators including the applicant.
Under cross-examination, Mr Gowdy gave the following evidence:
Q. The question is are you aware of whether control room employees were ever directed to use this form when they wanted to swap a shift?
A. Yes, they were directed.
Q. And you know this how?
A. I was informed by Mr Rodney Janetzki.
Q. And what did he say to you about that?
A. He said, "I have told the guys to use this form."
Q. And are you aware - I withdraw that. And that's all he said, did he?
A. Given that it was seven years ago, yes, that's my recollection.
Q. And you didn't say anything about the memorandum?
A. No.
Q. So he didn't tell you that he had delivered the memorandum?
A. Yes, he did. Hang on. He did.
Q. So which is it, Mr Gowdy?
A. He did tell me about the memorandum.
Q. What did he say about the memorandum?
A. He said, "I've handed it out to the guys."
Q. So that's all he said, "I've handed it out to the guys"?
A. Yes.
Q. But you didn't personally observe him doing that?
A. No.
Q. And when he said, "I have handed it out to the guys," you don't know if he meant personally given it to each one or put it on the noticeboard or put it in the logbook? You don't know the manner in which--
A. He said to me he handed it out to the guys. That to me means he's handed it out to the guys. It doesn't mean put it on the noticeboard.
Q. But you didn't ask him exactly how he had delivered it?
A. No. He told me he handed it out to the guys.
Q. Did he mention Mr Dul specifically?
A. No, he didn't.
Q. Did he provide you with signed copies of the memorandum?
A. No, he didn't.
At best, both Ms Lopez and Mr Gowdy were equivocal and uncertain as to how, or if at all, the Gowdy Memo, and the Roster Change Form that was issued with it, were hand delivered to all the Control Room Operators, including the applicant, in 2013. On the other hand, the applicant has remained firm and consistent is his denial that he had ever seen these documents until he was shown them by the Investigators in 2019 (paragraph 44 of the applicant's witness statement at [35]).
In response to paragraph 44 of the applicant's witness statement, at paragraph 21 of her affidavit, Ms Ravishankar stated (at [42]):
21. As to paragraph 44 of the Statement, I deny the Applicant's statement that he had never seen the Roster Change Form before, prior to the investigation interview on 30 July 2019 because during the Interview with him on 30 July 2019 the Applicant admitted "I didn't see that form until early this year, around about March, because l filled one out, on April the 25th for ANZAC Day.
This is a curious response because the Roster Change Form that the applicant was shown by the Investigators during his interview was the one Mr Gowdy claimed to have issued in 2013 (at [16]). This is a completely different form to the form issued by Mr Benke in October 2018, which was also shown to the applicant during his interview. It was the 2018 form which the applicant claimed to have not seen until around March 2019 and which he filled out for the purpose of swapping his shift on ANZAC Day that year (at [12]). I deal further with issue later in this decision at [107].
By contrast to the respondent's witnesses, the applicant was unequivocal in denying that he had seen the Gowdy Memo or the Roster Change Form issued with it until he was shown these documents by the Investigators on 30 July 2019. Having had the benefit of observing the applicant giving his evidence in these proceedings, and having witnessed that evidence being tested by experienced counsel, I formed the opinion that the applicant was a witness of credit and I prefer his evidence on this issue over the hearsay evidence of Ms Lopez and Mr Gowdy as to what Mr Janetzki told them that he had done with the Gowdy Memo and the Roster Change Form in 2013..
Thirdly, it does not appear from the Report, or from the evidence filed by the respondent in these proceedings, that the respondent made any effort to contact Mr Cujack or Mr Janetzki to either confirm or dispute the applicant's claim that, when they were Supervisors of the Control Room, verbal approval from them was all that was required for employees to swap shifts. Ms Lopez's evidence concerning the "laissez faire" manner in which Mr Janetzki and Mr Pocock supervised the Control Room (at [26] and [46]-[47]) lends weight to the applicant's claim that verbal approval was sought from and given by the Supervisor for the shifts he worked for Mr Hahu without the need for any paperwork. Mr Gowdy's denial that this occurred has to be weighed against the fact that, on the respondent's case, it was the Supervisor, not Mr Gowdy, who was responsible for approving shift swaps.
Fourthly, the reference in the Report to the Roster Change Form which was, according to Mr Gowdy, issued in 2013 as "the shift swap form", is misleading. This form, on its face, deals with changes to the roster. According to the applicant, shift swaps did not require a change to the roster. Under cross-examination, the applicant gave the following evidence:
Q. Now, when you swapped shifts with Mr Harhu, he would've been rostered onto that shift, correct?
A. That's right, yes.
Q. Did you have to sign onto that shift?
A. Yes. Yes.
Q. And did you sign on with your name or Mr Harhu's name?
A. My name.
Q. So you completed the shift and signed on in your own name?
A. Yes.
Q. And you signed off in your own name?
A. Yes.
……………………………
Q. Can you explain then why Mr Harhu got paid for the shifts?
A. Because we were going to swap shifts in the future.
Q. That's not my question, sir. If you completed the sign-on book, can you explain why you got paid for the - why Mr Harhu got paid for the shifts?
A. There was an agreement that he was to do my shifts.
Q. Could you just indulge me now and answer my question?
A. You'll have to ask Eddie.
Q. I want to suggest to you, sir, that in order for Mr Harhu to be paid for the shift, he had to sign on and sign off for the shift?
A. No. He would've done his timesheets. They would've signed on on his
timesheets to get paid. He would've put that down in his timesheet.
Q. And--
A. Which I--
Q. Sir, if you can just answer my question. You also had to do timesheets?
A. That's correct, yes.
Q. And you would've recorded the times that you worked in those timesheets?
A. Yes.
Q. And the days upon which you worked?
A. Yes.
Q. And the time you finished on those shifts?
A. Yes.
Q. Now, do you tell the Commission that you completed those forms truthfully?
A. Yes.
Q. And you included all the times you worked?
A. Because we were told when we were changing shifts to leave what's on the roster there to avoid confusion.
Q. Can you just answer my question now, sir?
A. Can you repeat that question again?
Q. Do you tell the Commission that you faithfully recorded all the times and days upon which you worked?
A. Yes.
Q. So you did that for the days upon which you worked for Mr Harhu, did you?
A. Yes.
Q. So you wrote on your timesheets that you had attended for work on those days when you were working Mr Harhu's hours?
A. No.
Q. So your answer a moment ago where I specifically asked you did you record everything, that was wrong?
A. No because we were told by--
Q. I didn't ask you, sir - if I could just stop you. I haven't asked you when you were told by anyone.
A. Okay, so--
Q. When you gave that answer a moment ago--
A. Yep.
Q. --you were deliberately wrong?
A. All right, I'll say I was wrong.
Q. So you didn't faithfully record the times and days that you worked in respect of filling in for Mr Harhu?
A. Under my supervisor's orders--
Q. I haven't asked you about - sir, I haven't asked you that question.
A. Well, that - because I was authorised by a supervisor, told by a supervisor to put down exactly what's on the roster to avoid confusion with the paymaster.
Q. Can you just tell me where in your statement, either the first or second, you state that?
A. I was never asked.
Q. Take your time, sir. Look at your statement. Can you just tell me what paragraph number I find that direction at?
A. (No verbal reply)
Q. You can look at your statement, sir. It's not a memory test.
A. It's not in there because I was - I never thought about putting it in.
Q. I want to suggest, sir--
A. And I wasn't even asked at the interview, at the investigation.
Q. I want to suggest, sir, that this is the very first time you've made this statement about being told these things by the supervisors in relation to these proceedings?
A. Yes, I was never asked before.
Q. Is your answer, yes, this is the first time?
A. That is possibly the first time, yes.
Q. When you say it's "possibly", can you point to any circumstance where you have said it?
A. I can't recall.
Q. You can't recall what's in your statements?
A. No.
Q. You only did your statements - you only did the last statement on 15 September. That's right, isn't it, sir? You did your last statement on 15 September and you're sitting here on 18 September telling us you can't recall what's in it?
A. No. No, it was never put in the statements, no.
Q. And I want to suggest, sir, that the direction that you just recounted from the supervisors is something that you have made up, sitting in the witness box on 18 September?
A. No, no, no, no, no, no.
Q. Because that's the first time you've referred to it?
A. No.
Q. Now, which supervisor told you that?
A. Mr Rodney Janevski.
Q. When did Mr Rodney Janevski tell you that?
A. When he was supervisor when I apparently changed the shifts, swapped the shifts. I don't know, it would've been around 2011.
Q. So you can recall in 2011--
A. Possibly.
Again, Ms Lopez's evidence about the "laissez faire" manner in which Mr Janetzki and Mr Pocock supervised the Control Room (at [26] and [46]-[47]) lends weight to the applicant's claim that a change to the roster was not required for a shift swap once verbal approval had been given by the Supervisor.
If I accept the evidence of the applicant, which I do, as to the practice of swapping shifts at the time he worked shifts for Mr Hahu, then no change to the roster was required and no Roster Change Form was required to be completed.
In the Report, the following is stated in relation to Allegation 1 (at [18]):
Summary and Findings
10.24 On reviewing the Control Room Roster…, it is confirmed that the dates of the five shifts reported by Mr Padayachee were actual rostered shifts of Mr Hahu.
10.25 It is found that Mr Hahu did not work those five rostered shifts which is confirmed by the review of the Control Room Attendance Book… and the Building Equipment/Malfunction Failure Log Book…; Mr Hahu had not signed these two records on his five rostered shifts on the 23 March 2018, 13 April 2018, 27 July 2019, 27 July 2018 24 August 2018 and 31 August 2018.
It is clear that management of the Engineering Services Department had available to it documentary material which would have enabled it to detect unauthorised shift swaps in the Control Room but it failed to do so. For example, Mr Hahu's timesheet for 24 August 2018 shows that he worked from 6.00pm through to 6.00am the next day. Mr Padayachee's timesheet shows that he was on rostered days off on 24 and 25 August 2018. However, an examination of the Control Room Attendance Book would have disclosed that Mr Padayachee, not Mr Hahu, signed in at 7.45pm on 24 August 2018 and signed out at 6.00am the following morning. Why these types of discrepancies were not detected at the time they occurred has not been satisfactorily explained by the respondent.
The effect of the evidence given by the applicant at [64] above is that, when he agreed to a shift swap with Mr Hahu and worked one of Mr Hahu's shifts, the applicant would sign on and off for that shift in the Control Room Attendance Book but not record that he worked that shift on his timesheet. Mr Hahu would record that he had worked that shift on his timesheet and would be paid for it, even though he had not worked it, and his name did not appear in the Control Room Attendance Book There would be no change to the Control Room roster for that shift. It follows from this, and from Ms Lopez's raising her concerns with management (at [46]), that management was aware of this practice and condoned it. There is no evidence before the Commission to dispute the applicant's evidence on these matters, which I accept.
If the management of the Engineering Services Department were concerned that shift swaps as described above should not occur, as Ms Lopez obviously was, they had ample means at their disposal to detect when these shift swaps occurred and ample opportunity to take appropriate action, but didn't do so. I regard their inaction on the issue of shift swaps until 2018 as a failure of management rather than misconduct on the part of the employees.
Fifthly, the Investigators assert that the applicant's claim that he had no knowledge of the process for shift swaps until 2019 and that no Control Room Operator was aware of the shift swap forms, is not supported because, for amongst other reasons, there is evidence that Mr Hahu and Mr McWhinney were using shift swap forms to seek approval to swap shifts in 2014. There is no such evidence. The forms which the investigators are referring to were annexed to the Report and also comprise Annexure CL9 to the affidavit of Ms Lopez (at [36]-[37]). These are not shift swap forms and were not used for that purpose. These forms are titled "Changes to Control Room Roster" and were used to identify employees, such as Mr Hahu and Mr McWhinney, who would be working overtime shifts to cover the rostered shifts of other employees who were, or were to be, absent from work due to sick leave or annual leave or for other reasons such as "To Cover Morning Shift. New Staff on". These reasons have nothing to do with employees swapping shifts. I deal further with these 2014 forms at [90]-[98] of this decision.
Sixthly, it is unclear on the evidence when or how many times the applicant worked shifts for Mr Hahu. On the form that he completed in relation to ANZAC Day 2019 (at [12]), the applicant claimed that Mr Hahu owed him three shifts. However, during his interview with the Investigators on 30 July 2019, the applicant stated that the shifts he had worked for Mr Hahu occurred "probably seven, eight years ago". When asked about the number and dates of such shifts, he responded:
Dates? No idea. Couldn't tell you. You know because it's going back, probably, eight, nine years now, and would've been maybe one or two? I actually forgot all about it. It's been that long.
At paragraph 10.112 of the Report (at [51]), the Investigators make an adverse credit finding against the applicant based on his inconsistent statements as to the number of shifts he claimed to have worked for Mr Hahu. Unfortunately, this discrepancy was not put to the applicant by the Investigators during the interview and he was not asked to explain it. Further, given the length of time, according to the applicant, since he worked these shifts, which does not seem to be disputed by the respondent, it is unsurprising that his memory of the number of shifts he worked for Mr Hahu would be less than precise and would vary from time to time.
Seventhly, as previously stated at [52] above, at paragraph 10.113 of the Report, the Investigators refer to previous adverse findings in the Report against Mr Hahu to the effect that he "was engaging in the breach of the shift swap process for actions of personal gain", being not required to work between Friday evening and Saturday evening due to his religious convictions. The Investigators then express the "view that Mr Dul was also engaging in the breach of the shift swap process to favour Mr Hahu's actions of personal gain", whatever this means. Unfortunately, this assertion was not put to the applicant during his interview with the Investigators and it was not part of any allegation that was the subject of the investigation.
I also have a number of concerns about certain aspects of the evidence placed before the Commission in these proceedings by the respondent.
[19]
Carol Lopez
In her affidavit, Ms Lopez referred to paragraph 44 of the applicant's witness statement where he states that he had never seen the Gowdy Memo or the Roster Change Form before his interview with the Investigators on 30 July 2019 (at [35]). In what appears to be an attempt to refute this statement of the applicant, Ms Lopez has annexed, as Annexures CL2 and CL3 to her affidavit, two "Changes to Control Room Roster" forms relating to overtime to be worked by the applicant in August/September 2016 and two of the applicant's timesheets for the relevant periods (Annexures CL4 and CL5) which appear to show that the applicant worked overtime shifts on the dates specified on the two forms, one of which is reproduced at [40] above.
These two forms have a different format to the format of the Roster Change Form that the applicant was referring to at paragraph 44 of his witness statement and which is reproduced at [16] above. Both of these forms are signed by Mr Pocock and dated "27/7/16" and "1/8/16" respectively, but the space for the employee's signature is blank on both of them. In his reply witness statement, the applicant stated that he could not recall ever filling out or seeing these forms and he was not challenged on this evidence in cross-examination. Annexures CL2-CL5 to Ms Lopez's affidavit have nothing to do with shift swaps and are entirely irrelevant to the resolution of any issue currently before the Commission. The same may be said of the forms referred to at paragraphs 14c and 14d of Ms Lopez's affidavit and annexed thereto as Annexures CL9 and CL10 thereto (at [36]-[38]; see also [71] and [90]-[98]).
[20]
Narmadha Ravishankar
At paragraph 7 of her affidavit (at [42]), Ms Ravishankar denies paragraph 27 of the applicant's witness statement (at [35]).
The applicant's response "Personally me, I wasn't there, so I don't know" came during the following line of questions from Mr Tabet during the interview with the Investigators on 30 July 2019:
TONY: Are you aware of other Control Room staff have completed
unapproved shifts for Mr Hahu?
JOHN: No-one has. Maybe, I've heard of Dan Padayachee. Maybe he has.
TONY: Is there any reason why, yourself or any other Control room staff
member, would not report this to their supervisor or manager?
JOHN: What do you mean?
TONY: lf these unapproved shift swaps have occurred, why would they have
not reported this to their manager?
JOHN: You mean outside the people that are concerned?
TONY: Yeah. So, people may conduct shift swaps, but not report them to their manager. I'm talking, say, Dan or Mr Hahu have conducted shift swaps. Is there a reason why staff who are working those shifts, know that who would be working with them that day, and then they have got another person in their spot. Is there any reason why, they would not report it?
JOHN: Personally me, I wasn't there, so I don't know.
TONY: I think you've confirmed this, John. Your supervisor, at the time of these shift swaps, with Mr Hahu saying these go back seven or eight years, would've been who at the time?
JOHN: Rodney Janetzki and Mr Paul Cujack.
TONY: To your knowledge, was your supervisor aware, that the unapproved shift swapping was occurring, with or without his approval?
JOHN: It was always with his approval.
Clearly, the applicant's response related to his lack of knowledge of why other employees would not report shift swaps to a Supervisor or Manager when someone who was not rostered to work with them would show up in the Control Room instead of the person who was rostered to work the shift. The applicant was being asked about the motives or reasons for other employees not doing something and, unless he had been present and privy to a conversation in which the other employees disclosed their motives or reasons, it is unlikely that he would have any knowledge of them.
Paragraph 27 of the applicant's witness statement is about a different matter, namely, the applicant's knowledge about the fact that shift swaps were occurring and how he became aware of this. There is no inconsistency between his response to Mr Tabet's line of questioning about other employees' mental states and knowledge he acquired of the fact of shift swaps through discussion with his colleagues and his own observations.
At paragraph 8 of her affidavit, Ms Ravishankar denies paragraph 28 of the applicant's witness statement.
At paragraph 28 of his witness statement, the applicant does no more than recount an instruction he was given in March 2019 from Ms Montaner that was relayed to him by Mr Pocock about filling in a Shift Swap Form, a copy of which he was given by Mr Pocock (at [12]).
During his interview with the Investigators, the applicant was shown the same Shift Swap Form by Mr Tabet and he responded:
I didn't see that form until early this year, around about March, because I filled one out, on April the 25th, for ANZAC Day. I'm an ex-serviceman. I participate in the March and go to my old reunion. So I ended up filling one of them up.
The applicant wasn't asked who gave him the form or whether it was accompanied by any instruction from anybody about filling it out. There is no inconsistency between paragraph 28 of the applicant's witness statement and what he told the Investigators in his interview.
At paragraph 10 of her affidavit, Ms Ravishankar denies paragraph 29 of the applicant's witness statement because the applicant did not refer to or mention what he has stated in this paragraph during his interview with the Investigators on 30 July 2019. In paragraph 29 of his witness statement, the applicant is simply stating that the instruction to fill out the Shift Swap Form came from Ms Montaner via Mr Pocock. This is uncontroversial and entirely consistent with what others had told the Investigators, such as Mr Hahu, in the following exchange during his interview on 29 July 2019:
TONY: Okay. To your knowledge, do all Control Room staff complete the shift swap forms and have these approved by their managers or manager?
EDWARD: No, because when Jessica and Dean Benke came in everyone has to do it.
TONY: Okay, and prior to that Eddie; if we go back to 2018 and prior to that?
EDWARD: No.
At paragraph 11 of her affidavit, Ms Ravishankar denies paragraph 30 of the applicant's witness statement where he incorrectly stated the he "used the Pocock Swap Shift Form to swap my rostered shift on 25 April 2020…". It is sufficiently clear that the applicant intended to refer to 25 April 2019.
At paragraph 12 of her affidavit, Ms Ravishankar denies paragraph 31 of the applicant's witness statement on the basis that the applicant "never referred or mentioned this during the Interview with him on 30 July 2019." During that interview, the following exchanges occurred:
TONY: The previous process in 2018. So, early 2018. Do we have a process there? You're saying there was a verbal like agreement?
JOHN: That's right, yes.
TONY: So, you'd approach a manager or a supervisor at the time?
JOHN: Yes, that's right. At different stages, I approached Mr Tony Kenny, Mr Paul Cujac, Tony Kenny was our Director. Paul Cujack was our Manager. Mr Rodney Janetzki, which was our Manager. I approached all of them. That's going back to when I started in 2007, I think it was.
……………………………..
TONY: Are you aware that, by not seeking approval, you may have breached the Policy Directive?
JOHN: I had approval from my immediate supervisor, either it was Paul Cujack or Rodney Janetzki. I did have approval.
NARMADHA: How did you get that approval? By verbal?
JOHN: Verbal yes.
All that the applicant added to the above information in paragraph 31 of his witness statement was that each of the persons he named would say words to the effect of "I don't mind shifts being swapped as long as someone is there to do the shifts", which is entirely consistent with the way Ms Lopez described the "laissez faire" management of the Control Room Operators by Mr Pocock and Mr Janetzki at [26] and [46]-[47] above.
At paragraph 13 of her affidavit, Ms Ravishankar denied paragraph 32 of the applicant's witness statement in which he states that prior to the "Pocock Direction", which he received in about March 2019, shift swaps were approved verbally by his direct managers who did not ask for a written form. Ms Ravishankar relies for her denial of this part of the applicant's evidence on the "Changes to Control Room Roster" forms which she claims were completed by Mr Hahu and Mr McWhinney as set out in Tabs 41 to 44 of the Report. These are the same forms which comprise Annexure CL9 to the affidavit of Ms Lopez. Ms Lopez stated that the handwriting on these form was hers and they bear Mr Janetzki's signature and are all dated "4/12/14". I have dealt with these forms at [37] and [71] above. The format of these forms is set out at [16] above. These are not Shift Swap Forms. There is no evidence that these forms were ever seen, let alone completed, by Mr Hahu or Mr McWhinney. In his interview with the Investigators, Mr Hahu denied ever seeing the form reproduced at [16] above, which is in the same format as these four forms.
The "Changes to Control Room Roster" form at Tab 41 of the Report has the name Eddie Hahu handwritten at the top of the form. There is a tick in the circle next to "Other" and the following handwritten notation: "- O/T to Cover Morning Shift James Narayan Hari on A/L". There is a diagonal line drawn through the bottom half of the form and no names appear where there are spaces for the names of "Alternative staff contacted to cover shift".
The form at Tab 42 of the Report again has the name Eddie Hahu handwritten at the top of the form. There is a tick in the circle next to "Sick Leave". Under "Alternative staff contacted to cover shift" and next to the word "Name" where it first appears is the following handwritten notation: "David McWhinney. O/T - Morning Shift". Beneath this, the word "Yes" is circled.
The form at Tab 43 of the Report has the name David McWhinney handwritten at the top of the form. There is a tick in the circle next to "Other" and the following handwritten notation: "O/T to Cover Morning Shift - James Hari Narayan on A/L". There is a diagonal line drawn through the bottom half of the form and no names appear where there are spaces for the names of "Alternative staff contacted to cover shift".
The form at Tab 44 of the Report also has the name David McWhinney handwritten at the top of the form. There is a tick in the circle next to "Other" and the following handwritten notation: "O/T - To Cover Morning Shift. New Staff on". There is a diagonal line drawn through the bottom half of the form and no names appear where there are spaces for the names of "Alternative staff contacted to cover shift".
It does not appear that any of these four forms was filled out by the Control Room Operators named in them. None of them was signed by a Control Room Operator.
It does not appear that any of these four forms was shown to Mr Hahu or to the applicant for their comment during their interviews with the Investigators. Mr McWhinney and Mr Narayan Hari were not interviewed.
As previously stated, these four forms do not relate to shift swaps between employees as does the form which was issued with Mr Benke's memo of 8 October 2018, an example of which is set out at [12] above. Unlike previous forms which are reproduced in this decision, the form at [12] is clearly designed to deal with shift swaps and requires the signatures of both employees involved in the shift swap as well as the signature of the person approving the shift swap.
In so far as the statement by the applicant at paragraph 32 of his witness statement (at [35]) is denied at paragraph 13 of Ms Ravishankar's affidavit by reference to Tabs 41-44 of the Report (at [42]), the four forms referred to by her in that paragraph prove nothing.
At paragraph 14 of her affidavit, Ms Ravishankar denies paragraph 33 of the applicant's witness statement in which he states that his "direct managers" never questioned someone who attended for a swapped shift because they had already given their verbal permission. Ms Ravishankar refers to the same reason as set out at paragraph 7 of her affidavit. For the reasons set out at [78]-[81] above, I reject this evidence.
At paragraph 15 of her affidavit, Ms Ravishankar denies paragraph 34 of the applicant's witness statement where he states that, prior to receiving the "Pocock Direction" he did not recall receiving verbal or written instructions about swapping shifts. Ms Ravishankar bases this denial on something Mr Pocock said in his interview with the Investigators on 25 July 2019. The difficulty I have with this hearsay evidence is that Mr Pocock was not called as a witness in these proceedings so there is no way that his evidence can be tested. Further, even if it is true that Mr Pocock implemented a requirement for forms to be filled out "about three or four years ago", it is unlikely that the applicant would have been made aware of this requirement. Whilst the evidence of when the applicant worked shifts for Mr Hahu is not entirely clear, it appears that this occurred around 2011 to 2012 when Mr Cujack and then Mr Janetzki were the Supervisors. If this is correct, on the applicant's evidence, he did not work anymore shift swaps between that time and ANZAC Day, 2019. He, therefore, had no need to be concerned with any form about which Mr Pocock claimed that he implemented a requirement to fill out in around 2015 or 2016.
At paragraph 16 of her affidavit, Ms Ravishankar denies paragraph 35 of the applicant's witness statement where he states that, had he been aware that swapping shifts without formal or written authorisation from the Supervisor could result in disciplinary action, he would have obtained such authorisation. Ms Ravishankar denies this aspect of the applicant's evidence because he never referred to or mentioned this in his interview with the Investigators on 30 July 2019. Given that, at the time of that interview, the applicant's position was that the shifts he worked for Mr Hahu seven or eight years previously had been verbally approved by the Supervisor and there was no requirement back then to fill out a form or to obtain written approval, it is unlikely that the prospect of disciplinary action was front and centre in the applicant's mind during his interview with the Investigators. I note that the applicant was not cross-examined on this aspect of his evidence.
At paragraph 17 of her affidavit, Ms Ravishankar denies paragraph 36 of the applicant's witness statement where he refers to his "compliance with the Pocock Direction in April 2020". As stated at [87] above, it is sufficiently clear that the applicant intended to refer to April 2019.
At paragraph 18 of her affidavit, Ms Ravishankar denies paragraph 42 of the applicant's witness statement where the applicant referred to his response during his interview with the Investigators to being asked if he had ever swapped shifts with Mr Hahu and he replied with words to the effect of "Yes but it occurred eight or nine years ago". Ms Ravishankar denies this aspect of the applicant's evidence because of the inconsistencies in the applicant's transcript of interview as to when he worked shifts for Mr Hahu. During the interview, the following exchanges occurred:
TONY: Would the roster get changed at all, John? Were you told to go see Carol or see anyone to change the shifts so she could change it?
JOHN: It's going back a long time now, for me, because when I changed shifts this is going back, probably seven, eight years ago, whatever now.
TONY: So that's the last time you did it?
JOHN: Yes. That's right. Yeah. So I can't really recall, I actually forgot about all this, you know?
……………………………….
TONY: it has been advised that you had completed a number of, unapproved shifts for Mr Hahu. Is that right?
JOHN: It's going back a long time now, and, probably just very hard to recall, but it's going back many years.
TONY: Do you recall how many shifts were involved, and the dates?
JOHN: Dates? No idea. Couldn't tell you. You know because it's going back, probably, eight, nine years now, and would've been, maybe one or two. I actually forgot all about it. It's been that long.
………………………………..
TONY: Okay. Would you have done these shifts in 2013 or maybe prior to that, is that what you're saying, John? Could these shifts fall going eight, nine years?
JOHN: Very hard to recall. Yeah.
……………………………...
TONY: I think you've confirmed this, John. Your supervisor, at the time of these shift swaps, with Mr Hahu saying these go back seven or eight years, would've been who at the time?
JOHN: Rodney Janetzki and Mr Paul Cujack.
Given that the applicant was being asked to remember when a small number of unremarkable events occurred so long ago, I am not surprised that he had difficulty in recalling whether he worked these shifts for Mr Hahu seven, eight or nine years ago. I find this to be completely normal and no basis for rejecting the applicant's evidence at paragraph 42 of his witness statement.
At paragraph 19 of her affidavit, Ms Ravishankar denies paragraph 59 of the applicant's witness statement which is to the same effect as paragraph 42. I repeat what I have stated in the immediately preceding paragraph.
At paragraph 20 of her affidavit, Ms Ravishankar notes that, in the form which the applicant completed in relation to ANZAC Day 2019, he wrote "x 3 SHIFTS EDDIE HAHU OWES ME", but in his interview with the Investigators he nominated the number of shifts as "maybe one or two". Again, for the reasons set out at [104] above, I find this discrepancy unremarkable.
At paragraph 21 of her affidavit, Ms Ravishankar denies paragraph 44 of the applicant's witness statement where he stated he "had never seen either the Gowdy Memo or the Roster Change Form before, prior to the investigation interview on 30 July 2019." Ms Ravishankar denies this aspect of the applicant's evidence because he "admitted" that he "didn't see that form until early this year, around March…" because he filled one out. What the applicant denied having seen before the interview was the Gowdy Memo said to have issued in March 2013 and the Roster Change Form issued with it (at [15]-[16]). During the interview, he was shown that form and was also shown the form which was issued in October 2018 by Mr Benke (at [12]). The following exchange then took place:
JOHN: Which form you're talking about?
TONY: I was referring to this one here in March 2013. And I know that since, 2018, early or mid-2018, this form came into place.
JOHN: I didn't see that form until early this year, around about March, because I filled one out, on April the 25th, for ANZAC Day. I'm an ex-serviceman. I participate in the March and go to my old reunion. So I ended up filling one of them up.
JOHN: That's the first time I saw that.
JOHN: I've never seen that form. Never.
It is clear from this exchange that the form which the applicant denied having seen prior to the interview was the Roster Change Form reproduced at [16] above. The form that the applicant claimed that he filled out in relation to ANZAC Day 2019 was the other form that he was shown during the above exchange in the interview. This is the Shift Swap Form reproduced at [12] above. The criticism of the applicant's evidence at paragraph 21 of Ms Ravishankar's affidavit is entirely misconceived and should not have been made.
Although it was not part of the sustained allegations against the applicant for which he was dismissed, it was put to the applicant during his interview with the Investigators, and again during cross-examination in these proceedings, that he had falsified his timesheets by not recording on them the shifts that he had worked for Mr Hahu for which Mr Hahu was paid and the applicant was not. The applicant denied that he had falsified his timesheets and claimed that he was told by the Supervisors to complete his timesheets in accordance with the roster which wasn't changed when employees swapped shifts. There is no evidence before the Commission to contradict this assertion by the applicant
[21]
Determination
The applicant was dismissed from his employment with the respondent as a consequence of a finding by the respondent that the following allegations against him were sustained:
6. Mr John Dul, Fitter/ Motor Mechanic presented to work for 2 of Mr Hahu's shifts, however no dates have yet been provided to the Engineering Services Manager, RPAH.
7. Mr Dul did not seek approval from his supervisor and/or the authorised person responsible for roster changes to work the 2 shifts.
It is not in dispute that, in a case such as this, where the respondent asserts that the applicant's employment "was terminated for engaging in a serious form of misconduct for personal gain…", the respondent bears the evidentiary burden of proving that the alleged misconduct was committed by the applicant (Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR 70 at 83-84).
The standard of proof is the civil standard, the balance of probabilities, but in reaching the requisite degree of satisfaction the Commission must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464).
The applicant has given sworn evidence in these proceedings that he had verbal approval from his Supervisors, Mr Cujack and Mr Janetzki, to work a number of shifts for Mr Hahu. It is unclear on the evidence before the Commission when this occurred. The practice at that time, according to the applicant, was that Control Room Operators could arrange shift swaps amongst themselves with the verbal approval of the Supervisor and without any change to the roster or need for a form to be filled out. There is no evidence before the Commission to contradict this assertion by the applicant.
The information given to the Investigators by Ms Lopez and her evidence in these proceedings supports the conclusion that the practice of employees swapping shifts without formal or written authorisation was known and condoned by management of the Engineering Services Department at least up until the Shift Swap Form was issued by Mr Benke on 8 October 2018.
I reject the proposition that the Gowdy Memo and the Roster Change Form, which, according to the respondent, were issued in March 2013, changed the shift swap practice as attested to by the applicant. His evidence, which has not been refuted by any evidence produced by the respondent, was that he had never seen either document until he was shown them by the Investigators on 30 July 2019. In any event, on the evidence before the Commission, the two shifts that the applicant was accused of working for Mr Hahu occurred before March 2013.
The respondent has failed to prove to the requisite standard that the applicant worked two shifts for Mr Hahu without approval from his Supervisor. I find that the lack of regulation around the practice of Control Room Operators swapping shifts amongst themselves was a consequence of failure on the part of management of the Engineering Services Department at RPA rather than misconduct by employees such as the applicant. It follows that the dismissal of the applicant was unfair.
Nothing that has been put to me by the respondent leads me to conclude that reinstatement of the applicant would be impracticable. The applicant is entitled to the primary remedy provided for in section 89 of the Act. He is entitled to be reinstated with back pay.
[22]
Orders
I make the following orders:
(1) The applicant is to be reinstated to the position he held at the Sydney Local Health District immediately before his dismissal on 28 May 2020.
(2) Order (1) is to take effect on and from Monday 14 December 2020.
(3) The applicant is to be paid by the respondent an amount equivalent to the wages he would have earned but for his dismissal for the period 28 May 2020 until 14 December 2020 less the one week's pay that he was paid in lieu of notice and the amount of any other income he has received during that period for work he has performed or in the nature of unemployment benefits.
(4) The parties are to confer in order to reach agreement on the amount of back pay payable to the applicant pursuant to order (3).
(5) The matter is stood over generally with liberty to the parties to apply to have it relisted on seven days' notice for the purpose of addressing the Commission on the quantum of back pay to be paid to the applicant pursuant to order (3) if agreement cannot be reached pursuant to order (4), and on the question of costs. If that liberty is not exercised by close of business on 23 December 2020 the file will be closed administratively.
John Murphy
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: 04 December 2020
Parties
Applicant/Plaintiff:
Dul
Respondent/Defendant:
Health Secretary, in respect of Sydney Local Health District