Graham v. South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023

Industrial Relations Commission (NSW)|2010-07-09|Before: Grayson DP

CITATION: Graham v. South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023

APPLICANT John Graham PARTIES: RESPONDENT South Eastern Sydney and Illawarra Area Health Service

CATCHWORDS: termination of employment - hospital employment - claim of unfair dismissal - misconduct - aggressive action in the workplace by two employees - security video inconclusive - one employee in the altercation dismissed - the other employee received a final warning - equality of treatment - dismissed employee reinstated

LEGISLATION CITED: Industrial Relations Act 1996

AWU-FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 G J Coles and Company Limited v. Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 Cooper v. BHP Steel (AIS) Pty Limited - unreported Electricity Commission (New South Wales) trading as Pacific Power v. Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia v. Liverpool City Council (1988) 25 IR 246 CASES CITED: Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 Hutchinson v. BHP Steelworks - unreported Kumar v. Valuca Pty Limited [2001] NSWIRComm 63 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Printing and Kindred Industries Union v. John Fairfax and Sons Limited - unreported Rudder v. Booroogen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Sydney Ferries Corporation v. Seamen's Union of Australia (2009) 186 IR 99

HEARING DATES: 03/05/2010, 04/05/2010, 24/06/2010

APPLICANT Bernard O'Donnell K P O'Donnell and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mark Sullivan Landers and Rogers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

John Graham and the South Eastern Sydney and Illawarra Area Health Service

Application under S.84 of the Industrial Relations Act, 1996

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr John Graham has lodged an application concerning his dismissal by the South Eastern Sydney and Illawarra Area Health Service. Mr Graham was employed as a health and security assistant at the Coledale Hospital with 32 years of employment. On Friday, 3 July, 2009 Mr Graham had been involved in an altercation with another hospital employee (Mr Greg McEwen, who is employed at the hospital as a gardener and maintenance officer). Mr Graham last attended work on Tuesday, 7 July, 2009. The incident was investigated by the SESIAHS and his subsequent dismissal had effect from Tuesday, 13 October, 2009. A letter he received from Mr Terry Clout, the chief executive of the SESIAHS, on that date confirmed his dismissal, viz:

"....I have considered the information provided by the Health Services Union on your behalf on Tuesday, 8 September, 2009 and have determined no basis to dissuade me from the recommended penalty. I therefore confirm that your contract of employment will be terminated from the date of this letter in accordance with the provisions of Clause 20, Termination of Employment, of the Health Employees Conditions of Employment (State) Award. All relevant entitlements will be paid upon termination..."

In his Part 6 application Mr Graham has sought his reinstatement, re-employment or monetary compensation in lieu thereof.

2 Initially the matter had been allocated to Grayson DP who on Friday, 6 November, 2009 attempted conciliation of the matter. He was unsuccessful in that attempt and he programmed the matter for arbitration. However, on Friday, 19 February, 2010 he attempted further conciliation in the light of a proposal advanced on behalf of Mr Graham at that time. He adjourned the proceedings for a further mention on Friday, 26 February, 2010 to give the SESIAHS the opportunity to consider the proposal advanced on behalf of Mr Graham in an attempt to settle the Part 6 application. The proposal was rejected by the SESIAHS, however, and the file was then allocated to me for arbitration.

3 It was originally my intention to hear the matter on Friday, 5 March, 2010 and Grayson DP informed the parties before him of that fact. However, the parties subsequently applied for that hearing to be vacated. I adjourned the hearing and, at the request of the parties, set it down instead to receive evidence on Monday, 3 May, 2010 and Tuesday, 4 May, 2010 (in the Commission's premises at 90 Crown Street, Wollongong) and for final submissions on Thursday, 24 June, 2010 (in Sydney). Mr O'Donnell represented Mr Graham in the hearing, calling him to give evidence. He also called Ms Pamela Montgomery, a linen officer at the Coledale Hospital, as a witness in the hearing. Mr Sullivan represented the SESIAHS in the hearing. He called seven witnesses to give evidence in the hearing: Mr McEwen, Ms Anne Gilholme, the manager and director of nursing at the Coledale Hospital, Ms Anita Felton and Ms Debbie Kokoc, hospital cleaners, Ms Vicki McCombie and Ms Jacqueline Dorrington, hospital assistants, and Mr Bret Grenfell, a health and security assistant.

4 There is some conflict in the evidence of Mr Graham and Mr McEwen over the incident in which they were involved on Friday, 3 July, 2009. There is no dispute, however, that an incident did occur between them when Mr McEwen was pushing a trolley loaded with bed lockers through the ward. According to Mr Graham, he offered to assist Mr McEwen when the trolley bumped into empty cardboard boxes that had fallen onto the floor by moving the boxes from under the wheels of the trolley. He told Mr McEwen to wait for a moment. He does not recall now whether he actually told Mr McEwen that he would remove the boxes but that was his intention.

5 Mr Graham claimed that Mr McEwen criticised him in front of other staff, saying:

But after Mr McEwen unloaded the trolley Mr Graham overheard Mr McEwen speaking to Ms Montogomery and Ms Kokoc, further criticising him, viz:

"What's wrong with him? He's impossible to work with. What's his problem?"

Mr Graham indicated that he felt humiliated and embarrassed over those comments and he again approached Mr McEwen, saying:

"I tried to help you and you just want to backstab me."

Mr Graham claimed that Mr McEwen then sniggered at him. Mr Graham pushed the trolley, now empty, with his foot against the wall twice, saying words to the following effect:

"Why don't you get lost? Piss off, you backstabbing bastard. I'm sick of you backstabbing everyone in the hospital. I'm sick of you dragging everyone down to your level."

6 Mr Graham denied that he kicked the trolley to move it. He claimed that Mr McEwen responded angrily to him, pushing the trolley to one side, lunging at him and colliding with him, with his fist striking Mr Graham's left shoulder and his glasses being knocked off his face. Mr Graham grabbed Mr McEwen around the upper torso and pushed him back against the wall, pinning him there for what he estimated was no more than a few seconds. Mr McEwen struggled to release himself and Mr Graham continued to pin him against the wall with his arms crossed over Mr McEwen's shoulders near his neck. The two men were separated by Ms Kokoc. Mr Graham conceded that he was angry at the time but was still in control of himself.

7 Mr McEwen denies that he struck Mr Graham at any time or that Mr Graham had taken defensive action to protect himself. He claimed in the witness statement which formed the basis of his evidence in this hearing:

"...I have no knowledge of what Mr Graham is referring to when stating that I had continually criticised him over a period of some months to a number of staff at Coledale Hospital. I deny that I was continually criticising Mr Graham at any time..."

8 He claimed in his statement that when he was pushing the trolley through the ward he encountered Mr Graham and some cardboard boxes which had been flattened and which was blocking his way. Mr Graham was standing near the boxes. Mr McEwen claimed that Mr Graham did not offer to help him at all or say anything to him about assisting him in moving the boxes, but he moved past him, saying words to the following effect:

9 Mr McEwen did not reply and he denied the conversation that Mr Graham had asserted. He spoke briefly to Ms Montgomery and later Ms Kokoc, viz:

Mr McEwen claimed that he then proceeded to move down the corridor. When he was at the service corridor doors, he recalled that Mr Graham commenced a tirade of abuse, saying:

"I tried to help you and you just want to backstab me. Piss off you backstabbing bastard."

10 Mr Graham moved towards him, reaching the front of the trolley and kicking it towards him. Mr McEwen denied that he was sniggering. He claimed that, whilst he was concerned as Mr Graham came closer, he "...stood his ground..." but he denied that he lunged at Mr Graham. He indicated in his written statement:

"...Mr Graham did push me against the wall and pin me there. He did so by pushing an outstretched arm up against my throat. It is possible that he then crossed his arms over my shoulders near the neck; I cannot recall. As I did not initiate physical contact with Mr Graham, it was not necessary for him to perform these actions in self-defence...

I do now recall, after I had been released by Mr Graham, picking his glasses up from the ground and placing them on the trolley. I cannot recall, but whilst he had me pinned against the wall, I was attempting to push him off with my arms. It may be that my hand made contact with his glasses at that time. I also recall saying to Mr Graham, whilst he had me pinned against the wall: 'What do you think you're doing?' I cannot recall specifically how we were separated but remember Ms Kokoc or Ms Montgomery approaching us and Mr Graham releasing me soon after..." Under cross-examination Mr McEwen claimed that Mr Graham put him in a headlock, which conflicts with the version of the incident contained in his written statement.

11 Mr McEwen did not report the incident, however. He recorded in his written statement:

"...I do not consider that I could be blamed for what occurred in any way. I accept that I breached policy by not reporting the incident. I had worked with Mr Graham for a long time. Whilst it was a physical altercation, I do not believe it to have been a serious physical incident and thought it was better for everyone to just get on with their jobs..."

Mr McEwen subsequently received a final written warning over the incident.

12 Ms Kokoc claimed in the written statement which formed the basis of her evidence that on Friday, 3 July, 2009 she was in the service corridor, pushing a trolley. She observed Mr Graham walk past her, saying something to Mr McEwen which she cannot now recall. She then observed Mr Graham holding Mr McEwen against the wall with both of his arms held upwards. She recalled in her written statement that:

"....Mr McEwen had a very surprised and shocked expression on his face. I felt worried for Mr McEwen. He is a smaller man than Mr Graham..."

She approached Mr Graham, touched him on the arm, saying:

"Settle down John. Just go upstairs and have a cup of tea."

13 Mr Graham attempted to explain what was happening and why he was upset with Mr McEwen. However, Ms Kokoc was at that time only concerned to separate the two men and she was not paying any attention to what Mr Graham was saying. Mr Graham let go of his hold and the two men separated. Ms Kokoc cannot recall whether or not Mr Graham was wearing glasses at the time.

14 But Ms Montgomery can. She gave evidence that she found Mr Graham's glasses on the trolley and it was she who picked them up and handed them to Mr Graham. Otherwise, her evidence corroborates the evidence of Ms Kokoc. Ms Montgomery had, in fact, prepared a statement over the incident but several days later she remembered that she had picked up Mr Graham's glasses from the trolley and she wished to add to her statement that further information. She claimed in the affidavit which accompanied her evidence that she was not permitted to add to her statement.

15 Ms Felton and Ms McCombie gave evidence that at the time of the incident they were returning some equipment to the hotel services room opposite the service corridor. They heard loud voices coming from the service corridor and they turned in the direction of the voices to see Mr Graham holding Mr McEwen up against the wall and pushing a trolley up against him. Mr Graham had one arm outstretched and pressed against Mr McEwen's throat. Mr McEwen was pushing his arms in an attempt to get Mr Graham off him. They observed Ms Montgomery and Ms Kokoc standing at the service corridor doors and Ms Felton recalled them saying words to the following effect:

Mr Graham let Mr McEwen go at that point. Ms McCombie recalled that Mr Graham's glasses were off his face and on the trolley but she does not know how the glasses got there.

16 At that point Ms Dorrington approached the two men and Mr Grenfell walked out of the gymnasium area, adjacent to the service corridor doors. Ms Dorrington's evidence, contained in a written statement, was:

"....Before I saw anyone in the area, I heard voices and when I turned around I saw Mr Graham and Mr McEwen bickering and lightly poking each other. I also saw that Mr Graham was pushing his foot up against a trolley that was being held by Mr McEwen, causing the trolley to push against Mr McEwen.

At this stage, I thought the pair were skylarking and so I ignored them and went about my work. When I next looked up, I saw them outside the service corridors. Mr Graham was holding Mr McEwen up against the wall with one outstretched arm, with his hand in the vicinity of Mr McEwen's throat. They may have been talking, but I could not hear clearly..."

There is a security camera situated immediately above where much of the altercation between the two men took place which was provided to me to view in the hearing. But much of the altercation took place off screen. Ms Dorrington also recollected Ms Montgomery picking up Mr Graham's glasses off the trolley and giving them to him.

18 Mr Grenfell also heard noises - a banging noise which he took to be something hitting the wall outside the gymnasium. He heard screaming and yelling in female voices. He went out to investigate. He recalled in his written statement:

"...When I went outside I saw a trolley up against the wall. I also saw Mr Graham and Mr McEwen standing about a metre apart. To my recollection, Mr Graham had his back to the service corridor doors and Mr McEwen was facing him, with the wall to their right and left respectively. Mr Graham was not wearing his glasses. I am not certain, but I believe his glasses were on top of the nearby trolley. I recall seeing Ms Montgomery standing at the service corridor doors and two other members of staff, one of whom was Ms Felton, standing to the right of the gymnasium door.

Mr Graham and Mr McEwen were arguing loudly, though not at the top of their voices. I could not make out all that was being said, but I recall Mr Graham saying: 'Why are you saying things behind my back?' At this stage, I walked towards them, coming up behind Mr McEwen. I did this, consistent with my training, to make them aware that I was present.

Mr McEwen then walked towards Mr Graham in a manner which I would describe as threatening, and stood about two inches from his face. Mr McEwen said: 'What's your problem?' At this point, I walked even closer to them because it appeared to me that a physical altercation might occur. However, the pair separated and went their different ways..."

19 Ms Catherine McGrath, the Acting Deputy Director of Nursing at the Coledale Hospital conducted the investigation of the incident (in the absence of Ms Gilholme, who was on leave at the time). Nevertheless, it was Ms Gilholme's subsequent recommendation to Mr Clout that Mr Graham's employment be terminated: that had also been the view of Ms McGrath. Ms Gilholme recorded in her written statement:

"....In making my recommendation...I was particularly conscious of Mr Graham's role. He was employed as one of a number of health and security assistants. An important part of the role is to maintain security and order at the hospital as required. As such, Mr Graham needed to hold a security licence to perform his role. It was expected of Mr Graham that he would assist in defusing and avoiding situations which could result in harm to a patient, a member of staff or the public...

The evidence established that a physical altercation occurred between Mr Graham and Mr McEwen. I could not conclude that Mr Graham's involvement in the altercation was defensive. In the interview conducted on Tuesday, 14 July, 2009 Mr Graham's version of events was anything but clear. He initially stated that there was a '...verbal incident but there was nothing physical about it...". Mr Graham then alleged that Mr McEwen "...took a swing towards me...' and '...jumped me...' before he responded '...by pushing him against the wall to stop him from attacking me...'. However, Mr Graham then stated that the '...alleged physical altercation was me grabbing him to shut him up...'

I noted that each of Ms Montgomery, Ms Felton, Ms McCombie and Ms Dorrington stated in interviews that Mr Graham held Mr McEwen against a brick wall by his throat. Ms Kokoc also stated that Mr Graham held Mr McEwen against the wall. I could not conclude that Mr Graham was the only aggressor in the incident, but there appears no doubt that Mr Graham had engaged in aggressive behaviour..."

20 Ms Gilholme noted that Mr Graham's employment history had no specific findings against him over aggression at work, although in early 2006 he had been counselled in relation to his language and tone and reminded that he must comply with the established code of conduct at the hospital. Nevertheless, her decision in the matter was based on a zero tolerance of aggression in the workplace, which was known to Mr Graham. Ms Gilholme understood that the SEASIAHS policy of zero tolerance for aggression in the workplace meant an automatic dismissal of the offending employee. She had given some consideration to also terminating Mr McEwen's services but, as she concluded in her written statement:

"....the statements of witnesses did not establish physically aggressive behaviour on (Mr McEwen's) part. I considered he had contributed to the incident through his verbal involvement. He also failed to report the incident as he was required to do. Mr McEwen was given a final written warning..."

21 Mr O'Donnell highlighted in his submissions certain discrepancies between the findings of the investigation on which Ms Gilholme based her decision to terminate Mr Graham's services and the evidence given in these proceedings by a range of witnesses. It may follow that Ms Gilholme's decision in that matter was based on flawed information before her but, ultimately, she remained committed to the decision she made in her evidence in this hearing. 22 In any event, I am obliged to form my own opinion on the matter before me, based on the evidence available to me. The approach adopted by the Full Bench of the South Australian Industrial Commission (Stanley P, Cawthorne CP and Stevens C) in Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 (which emphasises the results of the internal investigations concerning a dismissal of an employee rather than an independent assessment of the evidence in subsequent proceedings) has not been adopted in the State Commission - see for instance, the unreported decision of the Full Bench of the Commission (Sams DP, Boland J and Grayson DP) on Thursday, 19 April, 2007 in Rudder v. Booroongen Djugun Aboriginal Corporation [Matter No.IRC 2539 of 2006 at pp.8 and 11].

23 It is clearly settled law that fighting at the place of work is misconduct and, as such, grounds not only for dismissal of the offender but for his summary dismissal. For instance, in the unreported decision of McClelland J on Friday, 25 January, 1980 in Printing and Kindred Industries Union v. John Fairfax and Sons Limited [Matter No.52 of 1980] his Honour expressed the view (at p.9) that fighting at work, along with the consumption of intoxicating liquor at work and the stealing of an employer's property, constituted the classic justification for summary dismissal. In G J Coles and Company Limited v. Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 the Full Bench of the Commission (Fisher P, Macken and Sweeney JJ) considered the circumstances surrounding the dismissal of a female shop assistant who had slapped the male grocery store manager, commenting (at p.44) as follows:

"…In our opinion, an employee who strikes another employee in the workplace will normally be guilty of serious misconduct justifying summary dismissal… Likewise, a male employee inflicting such a hard slap to another employee would have been guilty of such misconduct…"

And I indicated in my unreported decision of Friday, 25 May, 2001 in Hutchinson v. BHP Steelworks [Matter No.IRC 5910 of 2000 at p.16]:

"...the customary response to any fight by employees in the workplace is for both employees to be dismissed from employment..."

24 There are exceptions, however. In AWU-FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 Moore J of the former Federal Industrial Relations Court commented (at p.393) that, based on his evaluation of relevant precedents:

"…whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence…"

25 I consider there to be three possible defences in a claim of unfair dismissal based on an established incident of fighting at work, viz:

(i) where the employee was doing no more than defend himself and was not himself the aggressor (in which case I believe that he would have a total defence from the allegation levelled against him); (ii) where the employee was provoked into a fight by the other party (in which case that provocation may constitute a mitigating factor to take into account when assessing whether his dismissal was fair or unfair); or

(iii) where the employer is not even handed in his approach, ie disciplining one employee for fighting but not similarly disciplining the other employee, provided, of course, that the other employee is equally culpable (in which case it would possibly be a factor in assessing the fairness or unfairness of the dismissal of the employee who was actually disciplined).

The onus of proof rests with the employer to establish that the dismissed employee was guilty of the misconduct - see, for instance, the unreported decision of Sams DP on Tuesday, 3 April, 2001 in Kumar v. Valuca Pty Limited [Matter No.IRC 3388 of 2000]. 26 As Mr Sullivan indicated in his submissions, the evidence before me in this hearing does not lead me to the conclusion that at any time Mr Graham was acting in self-defence. It seems to me that the altercation commenced as an argument between the two men which unfortunately developed into a physical exchange between them. It would appear most likely to me that Mr McEwen said something which provoked Mr Graham but, on the evidence before me in this hearing, Mr Graham's response was out of all proportion to any provocation by Mr McEwen. I would expect that a security officer would act with considerably more restraint when confronted by criticisms from other employees, whether those criticisms were justified or not. As I indicated earlier in this decision, Ms Gilhome indicated in her written statement that because of Mr Graham's role as a security officer, "...it was expected...that he would assist in defusing and avoiding situations which could result in harm to a patient, a member of staff or the public...". Mr McEwen conceded in his evidence that he did not regard the incident as a serious matter - not serious enough to report it himself. Mr O'Donnell described it as a "scuffle" in his submissions. Nevertheless, it was still a physical altercation and the SESIAHS was entitled to treat the matter seriously.

27 But it is the uneven handling of this matter which raises issues before me in this hearing. Mr Graham was dismissed: Mr McEwen was not, receiving instead a final warning. That fact principally raises a question in my mind concerning the fairness of the SESIAHS's treatment of Mr Graham. That is especially the case having regard to Mr Graham's lengthy period of otherwise apparently generally satisfactory employment at the hospital - 32 years - which, as Moore J indicated in AWU-FIME Amalgamated Union v. Queensland Alumina Limited was one matter which it was appropriate to take into account.

28 In my unreported decision of Wednesday, 28 July, 2004 in Cooper v. BHP Steel (AIS) Pty Limited [Matter No.IRC 2753 of 2003 at p.14] I commented:

"...Where an employer does not treat employees involved in a fight the same, ie dismissing them both, it may be open to argue, all other things being equal , that he has acted unfairly [ Federated Municipal and Shire Council Employees' Union of Australia v. Liverpool City Council (1988) 25 IR 246 at pp.248 and 249 and Hollingsworth v. Commissioner of Police No 2 (1999) 88 IR 282 at p.294]. But in this case the words I have emphasized above - all other things being equal - is particularly relevant... (The other employee) has a relatively clean employment record, a factor which it was appropriate for (the employer) to take into account as mitigating circumstances... (The dismissed employee's employment record is another matter entirely. It shows a history of aggression..."

And I also commented in Hutchinson v. BHP Steel (at p.17) that:

"...in my view, it would have been unfair for (the employer) to have made a blanket decision, applying the same penalty - dismissal - to both employees, regardless of the individual circumstances. Each individual in the altercation would need to be considered separately..."

But in this case, in my opinion there does not appear to be any issues to justify Mr Graham being treated any different to Mr McEwen. It does not necessarily follow that because Mr McEwen is of slighter build than Mr Graham (marginally, in my opinion) he was any less of an aggressor in the incident. I believe that he was just as much at fault as Mr Graham.

29 The brief video footage from the security camera on which Ms Gilholme has partly based her decision to terminate Mr Graham was provided to me to view in the hearing. I regard it as fairly inconclusive to support Ms Gilholme's assessment of the situation. The start of the altercation and much of what followed was off the bottom of the screen. It shows the heads of two men - which I accept to be Mr Graham and Mr McEwen - and an empty trolley sliding to the side of the screen. It shows one employee - Mr Graham - forcing the other employee - Mr McEwen - into a recess in the side of the room but it does not show why Mr Graham did that. Implicitly, some incident had occurred earlier which would back up Mr Graham's version. The security footage also shows Mr Grenfell walking out of the gymnasium and standing near the two men, as he indicated in his evidence. It is not sufficient to actually show the fight between the two men, let alone who started it.

30 Nor were any of the other employees who gave evidence in the hearing able to describe the commencement of the altercation between Mr Graham and Mr McEwen. I only have the uncorroborated, and conflicting, evidence of Mr Graham that Mr McEwen pushed the trolley to one side, lunging at Mr Graham and striking him, knocking Mr Graham's glasses off his face: Mr Graham claimed that it happened and Mr McEwen says that it did not (although he conceded that in the ensuing scuffle he may have knocked Mr Graham's glasses off his face in an effort to get Mr Graham off him). The other witnesses can only give evidence of what they observed when they heard raised voices, ie after the incident had already commenced. The fact remains that Mr Graham's glasses did come off at the start of the incident, suggesting to me that Mr McEwen's hands had come into contact with Mr Graham's face to that extent.

31 I also note Mr Grenfell's evidence that after the incident, he observed Mr McEwen walking over to Mr Graham in a manner which he described as "threatening". That leads me to the conclusion that Mr McEwen was far from a passive participant in the incident and was still attempting to carry on the argument with Mr Graham after it had ended. Mr McEwen did not present himself as a particularly reliable witness in the hearing, in my opinion. His suggestion in his oral evidence that Mr Graham put him in a headlock is not supported by any other witness and contradicts what he, in fact, reported in the interview he had as part of the investigation of the matter and his own written statement for the hearing.

32 That having been said, I would not wish to be regarded as in any way condoning Mr Graham's conduct, which was not acceptable - and Mr Graham acknowledges that, writing a letter shortly after the incident (Sunday, 19 July, 2009), viz:

"....I would like to apologise for my behaviour that led to the incident at Coledale Hospital on Friday, 3 July, 2009. I would like to say sorry to Mr McEwen, hospital staff, administrative staff and human resources staff for the pain, stress and traumas my behaviour has caused. On reflection, I was totally wrong to inflame a situation and I feel ashamed of my behaviour and deeply regret my actions and the effect they are having on the people involved. My behaviour was totally out of character and I now realise I should have acted in a more professional and responsible manner. Please accept my apology..."

Mr Graham would be wise to curb his temper and show considerably more restraint in his dealings with all other staff members. Mr Graham appears to accept that position. 33 But I conclude, having particular regard to Mr Graham's lengthy period of otherwise satisfactory employment, that his dismissal was to that extent unfair - "harsh", "unreasonable" or "unjust", to use the language of S.84(1). In Parker v. Capital Painters Pty Limited (1996) 68 IR 100 I described the meaning of those words, as I understood them (at p.104), viz:

"...'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)…"

I consider Mr Graham's dismissal to be too severe in all the circumstances and, more importantly, inequitable when compared to the position taken by the SESIAHS with respect to Mr McEwen. The word "unjust" in S.84(1) particularly highlights the obligation on employers to treat all employees the same when incidents of this nature arise and to make fish of one and fowl of another would constitute an obvious unfairness to the employee against whom the greater disciplinary action is directed. 34 I therefore propose to order the reinstatement of Mr Graham effective from to-day's date. Mr Sullivan suggested that the reinstatement of Mr Graham to his position at Coledale Hospital would simply serve to produce further difficulties because of his working relationship with Mr McEwen. Frankly, I see no real difficulties in that regard and for Mr Graham to resume work at the hospital where he has been employed for such a lengthy period. Mr Graham has indicated his regret over the incident and Mr McEwen did not wish to report it in the first place. In any event, as I indicated during the course of the hearing, the reinstatement of a dismissed employee does not necessarily oblige the employer to re-engage him at his former place of employment: only to return to work of a comparable nature where a vacancy exists. Consequently, the SESIAHS is not necessarily required to reinstate Mr Graham at Coledale Hospital. Mr O'Donnell accepts that position.

35 Since the termination of his services Mr Graham has attempted to find alternative employment and his attempts in that respect have generally been unsuccessful, although he has obtained some limited casual employment from time to time. Nevertheless, I decline to order any payment to Mr Graham under S.89(3) for loss of earnings since his dismissal. As I indicated earlier in this decision, he was far from blameless over the incident. As the Full Bench of the Commission (Boland J - President, Walton J - Vice President and Sams DP) commented in that respect in Sydney Ferries Corporation v. Seamen's Union of Australia (2009) 186 IR 99 at p.118: "....It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration) to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in the circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission (New South Wales) trading as Pacific Power v. Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for (the dismissed employee) to receive back pay, given his contribution to the circumstances that led to his dismissal..."

Otherwise, Mr Graham's employment shall be regarded as being unbroken by his dismissal.

The South Eastern Sydney and Illawarra Area Health Service shall:

(a) reinstate Mr John Graham in employment to his former security officer position at Coledale Hospital or some other public hospital in the Illawarra region; and

(b) take his employment not to have been broken by his dismissal.

This order shall take effect on and from Friday, 9 July, 2010.

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.

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