//
[2021] FWC 13
General information, not legal advice.
Fair Work Commission
2021-01-06
Original judgment source is linked above.
[2021] FWC 13 [Note: An appeal pursuant to s.604 (C2021/386) was lodged against this decision.]
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - dismissal not unfair - application dismissed.
[1] Mr Hamman Hijazi was dismissed from his employment with Calvary Health Care ACT Limited (Calvary) on 10 February 2020, following an investigation that concluded he bullied two colleagues.
[2] Mr Hijazi applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009.
[3] The evidence was heard by Deputy President Kovacic on 24 and 25 July 2020. The matter was subsequently re-allocated to me following the death of the Deputy President.
[4] The parties agreed that a rehearing was not necessary and consented to the application being determined based on the evidence and submissions filed and the transcript of the hearing.
[5] For the reasons set out below, I find that the dismissal of Mr Hijazi was not unfair and accordingly I will dismiss his application.
[6] The matters set out below are uncontested.
[7] Mr Hijazi commenced employment with Calvary in April 2009. He held the role of Director Medical Imaging at Calvary Public Hospital (the Hospital) operated by Calvary. He reported directly to Calvary's Director Clinical Services, Professor Frank Bowden.
[8] On 29 April 2019 Mr Hijazi was issued with a Notice of Investigation by way of a letter signed by Mr Mark Dykgraaf (General Manager of the Hospital). The letter advised that Calvary had engaged Mr Ken Grime of Katemaru Legal and Investigations to investigate a complaint made by staff which claimed that Mr Hijazi had engaged in bullying and harassing behaviour (the Grime Investigation).
[9] On 27 June 2019, Mr Hijazi, accompanied by his brother (a lawyer), attended a meeting with Professor Bowden and Ms Kylie Gardner (a HR personnel of Calvary). At the meeting, Mr Hijazi was handed two letters.
[10] The first letter, dated 17 June 2019 and titled 'Investigation into Allegations of Misconduct', was written by Mr Grime, the Investigator. The letter referred to allegations made pursuant to section 9 of the ACT Public Sector Management Act 1994 (PSM Act) and set out relevant legislation and policies of Calvary pertaining to workplace bullying and harassment. The letter concluded with the following statements:
You have 21 days from the date of this letter to provide your response to me. Your response can be written, or I can meet with you (and your representative) to take down your oral response, if that is preferred.
As I have indicated above, my task is to make findings on the allegations as detailed above, not to determine disciplinary action if I find the allegations proven. Given the matters that are canvassed in the allegations, you should be aware that a finding of serious misconduct may be made with potential disciplinary consequences including termination of employment.
[11] The second letter, dated 26 June 2019 and titled 'Allegations of Misconduct and Suspension From Duty' was written by Mr Dykgraaf. The letter included the following statements:
As you are aware Mr Ken Grime from Katemaru Legal and Investigations was engaged to undertake an investigation into complaints made about your behaviour. As a result of the investigation Mr Grime has reached the view that you may have a case to answer. The allegations of misconduct are enclosed. Mr Grime will also provide the allegations directly to your legal counsel. Should these allegations be proven, it may constitute a finding of misconduct under Section 9 of the ACT Public Sector Management Act 1994 (attached).
Attachment A presents the details of the alleged behaviour. I invite you to respond to the allegations in writing by 5pm on 10 July 2019. If you do not respond to the allegations I will make a decision without your response.
In light of the allegations and your role as the Director of Medical Imaging, I have decided to suspend you with pay from the workplace until this matter has completed. The suspension will take effect from delivery of this letter.
[12] Enclosed with the second letter was the particulars of allegations.
[13] On 9 July 2019 Mr Hijazi through his brother sought from Mr Grime further time to respond to the allegations and was granted an extension to provide a response by 19 July 2019.
[14] On 22 July 2019, Mr Hijazi's solicitor, Mr John Wilson, wrote to Mr Dykgraaf. In that letter, it was contended that Mr Hijazi was not a public servant and as such allegations could not be made against him pursuant to the PSM Act. The letter demanded that Mr Hijazi's suspension be immediately lifted and a meeting be arranged to discuss a resolution of the dispute in accordance with clause G6 of the ACT Public Sector Health Professional Enterprise Agreement 2018-2021 (the Agreement).
[15] On 24 July 2019, Mr Dykgraaf wrote to Mr Hijazi's solicitors. In that letter, Mr Dykgraaf apologised for providing Mr Hijazi with the 'wrong' letter, noted that Mr Hijazi was to be provided with the correct letter, and that he would be given a further 21 days to respond to the allegations. The letter rejected the propositions made by Mr Hijazi's solicitors in terms of the interaction between part G and part H of the Agreement.
[16] On 31 July 2019, Mr Hijazi through Mr Wilson lodged a dispute notification with the Commission. I note the dispute notification had the effect of causing an extended delay in concluding the investigation.
[17] On 19 September 2019, Mr Hijazi through his lawyer provided written submission in response to the allegations.
[18] By letter dated 26 November 2019 Mr Hijazi was advised that Calvary had received Mr Grime's report and having considered the contents of the report, found on the balance of probabilities that Mr Hijazi had engaged in behaviour that did not comply with:
b) Section 28 of the Workplace Health and Safety Act 2011;
[19] Specifically, Mr Hijazi was found to have engaged in bullying and harassment of staff arising from a Riskman[1] entry on or about 3 March 2019 (Allegation 1) and bullying and harassment of staff arising from a Riskman entry about his conduct on or about 18 April 2019 (Allegation 2).
[20] Allegation 1 was in the following terms:
"A Riskman report was made concerning the treatment of a patient in the Medical Imaging Department of 3 March 2019 ('the 3 March incident'). A copy of the report is Annexure 1. You were the radiographer who failed to check the patient ID prior to a procedure (cannulisation) and the patient was only saved from being scanned by Mr Cuong (Bill) Trinh who took over the scanning procedure from you carrying out correct patient ID procedures. Mr Trinh lodged a Riskman report which named you and Mr Malcolm Bull, a Wards Service Officer as being involved.
Following the 3 March incident you are alleged to have repeatedly blamed Mr Bull for the incident, publicly berating and belittling him to the point of bullying and harassment. In addition, you are alleged to have deliberately harassed and intimidated him through isolation by ignoring him and staring him down".
[21] The Grime Investigation found that Mr Hijazi had engaged in bullying Mr Bull from March 2019 until 18 April 2019 when Mr Bull was removed from the radiography ward, and this was in breach of clause H6.5.1 of the Agreement and the Calvary Code of Conduct by:
a. Staring at Mr Bull rather than engaging in their usual method of greeting (ie isolating him);
b. Repeated, unwarranted questioning about whether Mr Bull had identified the right patient in a heated and stern tone; and
c. Intimidating Mr Bull by the mocking 'crys and hugs' comment.
[22] Allegation 2 related to Mr Hijazi's alleged behaviour following the lodging of a Riskman entry on 18 April 2019 by Ms June Mo, Mr Bull's supervisor, in respect of Mr Hijazi's conduct toward Mr Bull. Ms D'Arx, a witness, was also referred to in the Riskman report. The bullying found to have occurred involved staring at Mr Bull and Ms D'Arx rather than engaging in their usual form of greeting, and intimidating Mr Bull and Ms D'Arx by contacting them and questioning them about the lodgement of the Riskman entry.
[23] Mr Hijazi was advised that a proposed determination that misconduct had occurred had been made, and invited Mr Hizaji to provide a response before a final decision as to misconduct was made.
[24] A copy of the Grime Investigation report was also attached with the letter.
[25] On 10 December 2019 Mr Hijazi's lawyers provided a very detailed response. In summary, it argued that for the reasons set out therein, a finding of misconduct could not be made out on the facts.
[26] By letter dated 16 December 2019, Calvary advised Mr Hijazi's lawyers that it was satisfied Mr Hijazi had in fact engaged in misconduct and the matter was to be referred to Mr Dykgraaf to determine what, if any, sanction should be imposed.
[27] On 19 December 2019, Calvary wrote to Mr Hijazi's lawyers indicating that the proposed sanction was the termination of Mr Hijazi's employment, and set out the matters which were considered in coming to that position. Mr Hijazi was given 7 days to provide a response to the proposed sanction.
[28] A response was made on 6 January 2020.
[29] On 10 February 2020 Calvary wrote to Mr Hijazi informing him that the proposed decision to terminate his employment was affirmed, and that his employment was terminated with effect from that date. He was paid four weeks' pay in lieu of notice.
[30] The following policies and instruments are relevant.
H1.1. All employees have a common interest in ensuring that workplace behaviours are consistent with, and apply the values and general principles set out in Division 2.1 of the PSM Act 1994 and the ACT Public Service Code of Conduct and Signature Behaviours. This involves the development of an ethical and safe workplace in which all employees act responsibly and are accountable for their actions and decisions. Bullying, harassment and discrimination of any kind will not be tolerated in ACTPS workplaces. It is recognised that bullying, harassment and discrimination in the workplace has both emotional and financial costs and that both systemic and individual instances of bullying and harassment are not acceptable.
H6.5.1 the employee fails to meet the obligations set out in section 9 of the PSM Act 1994;
Division 2.1 ('Public Sector Standards') of the PSM Act:
(c) when acting in connection with the public servant's job -
(iv) treat all people with courtesy and sensitivity to their rights and aspirations;
(i) is inconsistent with the public sector values; or;
(ii) undermines the integrity and reputation of the service; or
(e) when acting in connection with the public servant's job - bully, harass or intimidate anyone; or
Section 28 of the Work Health and Safety Act 2011 (ACT):
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
i. Hospitality: Avoiding negative behaviours such as:
Calvary's Prevention of Workplace Discrimination Bullying and Harassment Policy:
Bullying and harassment is a breach of the discrimination and equal opportunity legislation and may lead to breaches of WHS legislation and any other relevant legislation. Bullying and harassment is also a breach of Calvary's Code of Conduct and employment conditions. CPHB considers discrimination, bullying and harassment as unacceptable behaviours and has zero tolerance of these behaviours in the workplace. CPHB has a stated expectation that employees neither ignore nor condone poor behaviour. In line with this expectation, employees who observe, or are advised of unacceptable behaviour have an obligation to report that behaviour. This reporting can occur via the employee's manager or through Calvary's Riskman Staff to Staff Incident Behaviour Reporting Module. ...
Bullying can be a range of undesirable behaviours which a reasonable person considers to be offensive, intimidating, humiliating or threatening. Bullying generally has the following key features: it is repeated, unwelcome and unsolicited. Bullying can take many forms, including jokes, teasing, nicknames, emails, pictures, text messages, social isolation or ignoring people, or unfair work practices. Bullying behaviour can create a risk to health and safety (including physical or psychological harm). If someone is being bullied because of an attribute protected by equal opportunity law (as above), it is a form of discrimination.
Under Federal law, this behaviour does not have to be repeated to be discrimination - it may be a one-off event.
Harassment is unwanted or unwelcome behaviour that a reasonable person, having regard to all circumstances, would consider offensive, insulting, humiliating or intimidating. There does not have to be an intention to offend or harass for harassment to occur. Behaviour that is deemed harassing in nature can range from serious to less significant. Harassment may be a repeated or a single event. Harassment may also be a result of a person's attitude to some real or perceived attribute, difference or characteristic as outlined in this policy in accordance with Territory and Federal legislation. Harassment may also take other forms, for example:
[32] Detailed written submissions were filed by both parties.
[33] The primary contention of Mr Hijazi is that there was no valid reason for his dismissal. In this regard, he contended his dismissal was unjust because he was not guilty of the misconduct on which Calvary acted, and unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before Calvary.
[34] Mr Hijazi submitted that it was extraordinary that Calvary had not provided to the Commission any first-hand evidence of the alleged misconduct, instead relying entirely on the Grime Investigation. In this regard, reference was made to a number of decisions of the Commission which were submitted to be authority for the proposition that while the Commission may consider an employer investigation in determining whether a valid reason for a dismissal exists, "the Commission's overarching task is to determine whether, on the evidence received by it through first-hand witnesses upon hearing, the misconduct occurred, regardless of the findings of any employer investigation and, if it did occur, whether it found a valid reason for the dismissal".[2]
[35] It was also submitted that the Commission could not reasonably reach the conclusion that Mr Hijazi had bullied Mr Bull and Ms D'Arx because:
a. Calvary provided no first-hand evidence of the alleged misconduct through any of its witnesses before the Commission;
[36] The basis for this submission included that:
a. Calvary did not call either of the alleged victims to give evidence nor any witnesses of the alleged conduct;
b. The Grime Investigation was hearsay and was inadmissible;
c. The Commission was unable to fulfil its fact-finding function as required by the Act because the Commission was being asked to accept the Grime Investigation as definitive of the misconduct occurring.
[37] There were no decisions of the Commission, it was submitted, in which a valid reason for a dismissal has been established on the product of an investigation conducted by or on behalf of the employer alone, in the absence of any evidence from persons said to be the subject of the alleged misconduct or to have witnessed it first-hand. Accordingly, it followed that the Commission should find that Mr Hijazi's alleged misconduct did not occur because there was no evidentiary basis for the Commission to hold otherwise, and therefore Calvary lacked a valid reason for his dismissal.
[38] On behalf of Mr Hijazi it was submitted that the following was apparent:
a. In respect of the allegation that Mr Hijazi bullied and harassed Mr Bull through staring at him rather than engage in their usual greeting, the allegation was denied by Mr Hijazi and no first-hand witness was called by Calvary to give evidence in support of it.
b. In respect of the allegation that Mr Hijazi bullied and harassed Mr Bull through repeated, unwarranted questioning about whether Mr Bull had identified the right patient including in a heated and stern tone, Mr Hijazi denied the questioning was unwarranted or amounted to bullying. Even if Mr Hijazi did use a heated and stern tone, this could not be found to amount to bullying and harassment.
c. As to the allegation that Mr Hijazi bullied and harassed Mr Bull by mocking him ('crys and hugs' comment), the allegation was denied by Mr Hijazi and he was not cross examined on the allegation, and no first-hand witness evidence was called by Calvary to give evidence in support of the allegation.
d. As to the bullying and harassment allegation related to Mr Hijazi staring at Mr Bull and Ms D'Arx rather than their usual greeting, the allegation was denied by Mr Hijazi and no first-hand evidence was called by Calvary.
e. Finally, in respect of the allegation involving Mr Hijazi contacting Mr Bull and Ms D'Arx and questioning them about the lodgement of the Riskman entry, Mr Bull and Ms D'Arx's statements to Mr Grime did not suggest either felt bullied, harassed or intimidated by Mr Hijazi, and no first-hand evidence was called by Calvary in support of this allegation.
f. It was submitted on behalf of Mr Hijazi that only two things could be established based on the evidence of witnesses called before the Commission. First, Mr Hijazi did question Mr Bull more than once as to whether he had brought the correct patient to the radiography department, because he felt Mr Bull had been involved in a number of incidents of bringing incorrectly identified patients to the radiography department, and that it was not unreasonable for him to do so given the errors made by Mr Bull in the past. It was accepted that Mr Hijazi did not raise his concerns about Mr Bull with Mr Bull's supervisor, but that did not prove his concerns were not legitimate. Second, as to Mr Hijazi contacting Mr Bull and Ms D'Arx on 18 April 2019, Mr Hijazi admitted this was an error of judgment on his part, and explained that it was a result of his concern that an inaccurate Riskman had been submitted. He acknowledged in cross examination that it would be intimidating for a witness to be approached by him in that context.
[39] It was contended that this could not amount to bullying because there was no repetition of the behaviour.
[40] In terms of the inadmissibility of the Grime Investigation, it was submitted on behalf of Mr Hijazi that while the rules of evidence do not apply in a strict sense, they cannot be set aside where to do so would cause unfairness to a party. Almost everything in the Grime Investigation, it was contended, was first-hand hearsay, and it would be appropriate for the Commission to either exclude the Grime Investigation or give it little or no weight, as to do otherwise would be unfair to Mr Hijazi.
[41] Further, it was contended that the Grime Investigation was substantively and procedurally flawed. Accordingly, the Commission could not rely on it to find that Mr Hijazi's alleged misconduct occurred.
[42] Overall, the Commission was urged not to rely on the Grime Investigation at all as the findings were not based on reasonable grounds. As a result of this, and the lack of any first-hand evidence of Mr Hijazi's alleged misconduct, it was impossible for the Commission to find that a valid reason existed for Mr Hijazi's dismissal.
[43] If a valid reason was found to exist, it was contended that the dismissal was still unfair because it was harsh. It was harsh because it was disproportionate to the gravity of the misconduct and because it had considerable consequences for the personal and economic situation of Mr Hijazi. In terms of disproportionality, it was submitted that at its highest, the Grime Investigation provided evidence that:
a. on a handful of occasions, Mr Hijazi did not engage with Mr Bull and Ms D'Arx when walking past them in a corridor,
b. Mr Hijazi used a stern tone when questioning Mr Bull about patient identification,
c. Mr Hijazi made one inappropriate comment re 'crys and hugs', and
d. Mr Hijazi contacted Mr Bull and Ms D'Arx following the lodgement of a Riskman report, noting that the Grime Investigation provided no evidence that these exchanges were anything other than civil and polite.
[44] It was also submitted that the fact that Calvary became aware of the incidents in April 2019 but took until June 2019 to take any steps to investigate them demonstrates the allegations were not serious enough to justify dismissal. Further, during the time in question, Mr Hijazi continued to attend work. If the allegations were as serious as Calvary now suggests, it grossly neglected its obligations to staff by failing to act swiftly. Accordingly, dismissal was disproportionate given the totality of the circumstances.
[45] In response to Calvary's claims that there were other reasons which would ground a finding that there was a valid reason for Mr Hijazi's dismissal, it was submitted that these other reasons should be rejected. The claims included that Mr Hijazi was responsible for several incidents where a failure to correctly identify patients was not notified through Riskman, and that Mr Hijazi failed to apply for a Radiation Source Registration and failed to have a CT scanner registered, which had considerable financial consequences for Calvary (in the order of $93,000).
[46] On behalf of Mr Hijazi it was submitted that there was considerable doubt Mr Hijazi was actually responsible for any of these matters and even if he was, there was insufficient evidence before the Commission to ground a valid reason on these allegations. Alternatively, it would be unfair to now rely on these matters given Calvary was aware of the allegations prior to his dismissal but did not provide him with an opportunity to respond.
[47] Mr Hijazi argued that reinstatement was the appropriate remedy, along with an order to maintain continuity of service and restore his lost pay.
[48] Calvary submitted that there was a valid reason for Mr Hijazi's dismissal, and it was not otherwise harsh.
[49] In response to the contention that it had provided no first-hand evidence of the alleged misconduct, Calvary submitted that nothing in its submissions disputed the uncontroversial proposition that the Commission must determine on the evidence before it whether the alleged misconduct occurred. Calvary contended that it had not suggested that the Commission should hand over its fact-finding role to Mr Grime. In reliance on the decision in Department of Social Security v Uink[3] (Uink), it contended that the reason why the findings of an investigation are 'relevant to' the Commissions task is because they constitute relevant evidence on the issues in dispute. Calvary argued that the Grime Investigation is evidence on which Calvary is entitled to rely, together with the other witness evidence given at the hearing.
[50] In terms of the contention that the Grime Investigation contains hearsay evidence and should not be relied upon, Calvary argued that there is nothing preventing the Commission from relying on hearsay evidence, and indeed the statutory regime specifically allows for it, noting that the Commission is not bound by the rules of evidence and that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate. Calvary noted that the Commission may elect to give hearsay evidence less weight than direct testimony.
[51] Calvary also referred to a number of decisions in which the Commission found a valid reason for a dismissal in circumstances where the employer failed to call first-hand evidence of misconduct, instead relying on the evidence of an external investigator. For example, in Chris Rodger v ACT Government[4], the employer did not call as witnesses any of the employees who witnessed the alleged misconduct, and instead relied upon evidence from its investigator. The decision was appealed, and permission to appeal was refused.
[52] Calvary contended that nothing in any of the decisions relied on by Mr Hijazi's representatives stand for the proposition that in order for the Commission to make a determination as to whether misconduct occurred, it must be given the evidence through first-hand witnesses of the alleged misconduct.
[53] In respect of the two allegations found to be substantiated, Calvary highlighted that Mr Hijazi admitted he had spoken to Mr Bull in relation to patient misidentification on multiple occasions, and that in doing so, spoke in a heated and stern tone. In his submissions to the Grime Investigation, Calvary highlighted that Mr Hijazi conceded he spoke to Mr Bull more than other wardsmen regarding patient misidentification, and noted that at no stage did Mr Hijazi raise his concerns about Mr Bull with his supervisor, Ms Mo.
[54] Calvary submitted that the issue was not whether Mr Hijazi intended to bully or harass Mr Bull, but rather whether a reasonable person would consider the behaviour to be offensive, intimidating, humiliating or threatening. So, regardless of whether Mr Bull had committed more errors of patient misidentification, Mr Hijazi's conduct in repeatedly raising the issue with Mr Bull remained plainly unwarranted in circumstances where:
b. he had not taken up the issue with Mr Bull's supervisor,
c. he had conceded that the responsibility for correct patient identification was with the radiographer (and not the wardsman),
d. the issue of patient misidentification was a problem with the systematic processes and not individual error, requiring Mr Hijazi as the director responsible for the Department to be focussing on the process rather than Mr Bull,
e. Mr Hijazi had conceded that in raising the issue of patient misidentification by reference to his job being 'on the line', Mr Bull could reasonably construe the comment to mean that Mr Bull's job was also on the line; and
f. There was a significant power differential between Mr Hijazi as the director of the Department and Mr Bull, an unqualified wardsman who took instructions from qualified staff.
[55] Calvary also pointed to the evidence of witnesses interviewed as part of the Grime Investigation who observed Mr Hijazi making comments to Mr Bull, suggesting that Mr Hijazi's comments were not made in a constructive or positive manner.
[56] Calvary argued that the Commission was not bound to give hearsay evidence less weight in circumstances where the evidence was 'inherently believable', given that consistent evidence was given by numerous witnesses and these witnesses had no vested interest in the outcome of the investigation, and their evidence was not inconsistent with what Mr Hijazi himself had conceded he had engaged in, that being repeated questioning about patient misidentification.
[57] In relation to the allegation that Mr Hijazi isolated Mr Bull by staring at him, Calvary submitted that it was Mr Hijazi's contention that it was actually impossible to tell the difference between looking at someone and staring at them was unconvincing.
[58] In relation to Allegation 2, Mr Hijazi conceded he contacted Mr Bull and Ms D'Arx in response to the lodgement of the Riskman entry, in which it was reported that Mr Bull was feeling harassed and uncomfortable as a result of the repeated comments from Mr Hijazi about patient misidentification, and where Ms D'Arx was noted to be a witness. Mr Hijazi initially denied it would be intimidating for Mr Bull, a junior employee and the person who made a complaint about him, to be approached by him and questioned about the complaint, but later conceded it would be intimidating. Mr Hijazi also conceded that such behaviour possibly gave rise to the serious consequence that staff may be discouraged from lodging reports in Riskman in the future.
[59] Calvary contended that Mr Hijazi's evidence that his behaviour had changed in light of the pressure he was under, and that staff may have misconstrued his 'sombre mood' as 'freezing out', demonstrated a failure on his part to take any responsibility for his behaviour in light of the senior position he held as director of the Department. It submitted that "a senior manager who is the head of the Department is not free to be 'sombre' towards, 'withdraw from' or 'limit interactions with' junior staff - for the obvious reason that it is likely to impact them adversely". Calvary also pointed to the fact that Mr Hijazi had confirmed he had been reminded of the relevant Calvary policies and Values in the months leading up to the complaints.
[60] In relation to the contention by Mr Hijazi that the Grime Investigation was inadmissible, Calvary said that the real issue was that there was no compelling reason as to why hearsay evidence should not be admitted in this matter. In relation to the contention that the Grime Investigation was flawed, Calvary submitted that Mr Hijazi had not pointed to any way in which Mr Grime failed to comply with the procedural requirements imposed on him under the Agreement, and that there was nothing in his investigation process that was unusual or inappropriate.
[61] Calvary rejected the contention that the dismissal was harsh, citing its zero tolerance approach to bullying as outlined in the Agreement, its Code of Conduct, and its Workplace Discrimination Bullying and Harassment Policy. In terms of the sanction that was imposed, being dismissal, Calvary argued that a dismissal is not rendered harsh simply because a lesser sanction may be open to the employer. It submitted that Mr Dykgraaf carefully considered the options and Mr Hijazi's responses before deciding on dismissal.
[62] Calvary also argued that Mr Hijazi did not have a 'clean slate' in terms of conduct matters and had been the subject of allegations of inappropriate conduct in November 2018. In that matter, a decision had been made to counsel Mr Hijazi rather than make a finding of misconduct. Calvary also pointed to Mr Hijazi's lack of cooperation and the 'remarkable features of the manner in which he responded to the allegations...", including:
a. Focusing on scrutinising or challenging the language that Mr Bull, Ms D'Arx and other witnesses used, including the meaning of 'suggest', 'badgering', 'repeatedly', 'barbed' etc, rather than addressing the substance of the allegations;
b. Answering the allegations in a defiant manner by posing a series of apparently rhetorical questions rather than addressing the substance of the allegations;
c. Repeatedly suggesting that hearsay evidence could not be relied on, notwithstanding Mr Grime was not conducting a court proceeding;
d. Stating that he had 'no involvement whatsoever' in the 3 March 2019 incident involving misidentification of a patient, notwithstanding he was the radiographer on duty and the director of the Department; and
e. Stating that his behaviour could not be in breach of the Agreement because the latest date the conduct alleged to have occurred was 22 April, and the Agreement commenced on 5 June 2019, notwithstanding that equivalent provisions were contained in the former Agreement.
[63] It was clear then, contended Calvary, that Mr Dykgraaf took little comfort in Mr Hijazi's promise to act with 'the utmost propriety' going forward, or to participate in any training that Calvary might provide to him.
[64] In terms of remedy (if the Commission were to find the dismissal unfair), Calvary submitted that it had lost confidence and trust in Mr Hijazi and accordingly reinstatement was impracticable.
[65] It is useful to deal first with what, if any, reliance the Commission should have on the Grime Investigation.
[66] As outlined earlier, it was submitted on behalf of Mr Hijazi that while the rules of evidence don't apply in a strict sense, they cannot be set aside where to do so would cause unfairness to a party. Almost everything in the Grime Investigation, it was contended, was first-hand hearsay, and the Commission should either exclude the Grime Investigation or give it little or no weight, as to do otherwise would be unfair to Mr Hijazi. Further, it was contended that the Grime Investigation was substantively and procedurally flawed. Accordingly, the Commission could not rely on it to find that Mr Hijazi's alleged misconduct occurred.
[67] Conversely, Calvary contended that there was no compelling reason as to why hearsay evidence should not be admitted in this matter. In relation to the contention that the Grime Investigation was flawed, Calvary submitted that Mr Hijazi had not pointed to any way in which Mr Grime failed to comply with the procedural requirements imposed on him under the Agreement, and that there was nothing in his investigation process that was unusual or inappropriate.
[68] Having reviewed in detail the material filed in this regard, I am satisfied that the Grime Investigation was conducted in an appropriate manner and consistent with the requirements of the Agreement. There is no basis in my view to criticise the method or approach taken by Mr Grime in conducting the investigation, or Calvary's reliance on it in deciding to terminate Mr Hijazi's employment. Mr Hijazi was given a more than adequate opportunity to provide a response to the allegations, and to the findings prior to a final decision being made as to Mr Hijazi's ongoing employment. He had the benefit of legal representation and assistance, both from his brother, a partner in a law firm, and his lawyer Mr Wilson, throughout the lengthy process.
[69] In terms of the submission that the Grime Investigation was fatally flawed, I do not consider this submission has merit. There is nothing unusual about the method undertaken in the investigation process, and again, the investigation process provided Mr Hijazi with a proper opportunity to respond to the allegations made against him. Further, it is clear that Calvary took account of his responses prior to making a decision about what sanction it would impose.
[70] However, the more important issue for this Commission is whether the Grime Investigation should be accepted as evidence of the conduct in question.
[71] There is no dispute that the Commission is not bound by the rules of evidence, however the rules are not irrelevant and do provide general guidance to the Commission as to the manner in which it informs itself.[5]
[72] Evidence will be relevant if it could affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
[73] In terms of hearsay evidence, the Commission has confirmed that hearsay evidence can be adduced, but will generally be given limited weight. In Pearse v Viva Energy Refining Pty Ltd[6] the Commission said:
"..... In any event, there is no automatic prohibition in proceedings before the Commission on the reliance on hearsay or opinion evidence. The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances."[7]
[74] Both parties referred to the decision of a Full Bench in Uink. Relevantly, the Commission in that decision said:
"In our view the question of whether or not a termination was `harsh, unjust or unreasonable' within the meaning of s.170CG is to be determined on the basis of the circumstances in existence when the decision to terminate the employment was made. In this regard the Commission is not bound by any determination of facts made by an inquiry conducted by the employer.
The Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was `harsh, unjust or unreasonable' provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:
- the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
- the employer gave the employee every reasonable opportunity to respond to allegations; and
- the findings were based upon reasonable grounds.
As we have already noted that above elements were not present in the inquiry relevant to this case.
Even where the findings of an employers enquiry are reasonable the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the misconduct [Byrne v Australian Airlines Ltd at 465 per McHugh and Gummow JJ]."[8]
[75] I do not accept the proposition put on behalf of Mr Hijazi that in order for the Commission to make a determination as to whether misconduct occurred, it must only accept evidence through first-hand witnesses of the alleged misconduct. This proposition cannot be supported particularly in light of the cases referred to above.
[76] Additionally, in jurisdictions where the rules of evidence do apply, hearsay evidence is accepted in certain circumstances. Courts will consider a range of factors including whether the evidence is relevant, its probative value, and whether the statement in question was made in circumstances that make it probable that the statement is reliable. To suggest, therefore, that the Grime Investigation should not be admitted simply because it contains first-hand hearsay evidence is wrong.
[77] Further, I note that Mr Hijazi's legal representative, Mr Wilson, did not object to the tender of the Grime Investigation during the hearing, having been specifically asked whether he wished to object by Deputy President Kovacic. In this regard, it was submitted that Mr Wilson understood the question posed by the Deputy President to be referring to the bare fact that an investigation was conducted and a report produced, rather than evidence of what various witnesses said or did. This assumption was not clarified by Mr Wilson when answering the question of the Deputy President.
[78] The Grime Investigation is in my view relevant to the Commission's determination of the issues which need to be decided. I am satisfied in this regard that the Grime Investigation constituted a full and extensive investigation, that Mr Hijazi was given a reasonable opportunity to respond, and that the findings were based upon reasonable grounds. It is, however, appropriate to place less weight on the Grime Investigation than might otherwise be the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was unable to test the evidence by way of cross examining those who complained about his conduct.
[79] There is no dispute and I am satisfied that Mr Hijazi is a person protected from unfair dismissal by virtue of s.382 of the Act.
[80] I will now consider if the dismissal of Mr Hijazi was unfair within the meaning of the Act.
[81] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[82] There is no dispute that Mr Hijazi was dismissed and that subsection (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
[83] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[84] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[9] as follows:
"... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
[85] I am required to consider each of these criteria in reaching my conclusion[10], which I now do.
[86] Calvary must have a valid reason for the dismissal of Mr Hijazi, although it need not be the reason given to him at the time of the dismissal.[11] The reason(s) should be 'sound, defensible and well founded'[12] or justifiable on an objective analysis of the relevant facts, and should not be 'capricious, fanciful, spiteful or prejudiced'.[13]
[87] The question I must address here is whether there was a valid reason for the dismissal related to his conduct (including its effect on the safety and welfare of other employees).
[88] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[14]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[15].
[89] Further, the Commission does not 'stand in the shoes' of the employer but will need to be satisfied that the termination of the employee was for a valid reason[16].
[90] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to 'have regard to' or 'take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[91] In this case I am satisfied and find that there was a valid reason for the dismissal related to Mr Hijazi's conduct.
[92] I am satisfied that the matters which are not disputed or are conceded by Mr Hijazi, combined with limited reliance on the Grime Investigation, is sufficient to ground a finding that there was a valid reason for his dismissal.
[93] There are a number of matters arising from Mr Hijazi's evidence, and from the non-contentious facts that, when taken as a whole, support a finding that his conduct warranted dismissal. These include the following:
a. Mr Hijazi was in a senior leadership role and was the director of the Department. There was a significant power imbalance between him and Mr Bull (a wardsman) and Ms D'Arx (a nurse).
b. Mr Hijazi conceded he spoke to Mr Bull about patient misidentification on multiple occasions and that he spoke in a stern and 'heated tone' to him.
c. At no time did Mr Hijazi raise his concerns about Mr Bull with Mr Bull's supervisor.
d. Mr Hijazi spoke to Mr Bull on multiple occasions about patient misidentification notwithstanding he was not Mr Bull's supervisor.
e. Mr Hijazi conceded he was ultimately responsible for patient identification, not the wardsmen. By repeatedly raising patient identification with Mr Bull, he was effectively blaming Mr Bull for the 3 March 2019 incident. This conduct, in my view, was highly inappropriate.
f. Mr Hijazi conceded that in raising with Mr Bull that Mr Hijazi's job might be 'on the line' because of the patient identification issues, Mr Bull might have reasonably construed his comment to mean that his job could also be 'on the line'.
g. Mr Hijazi did not dispute he contacted Mr Bull and Ms D'Arx about the Riskman entry (Allegation 2). It was highly inappropriate to do so in circumstances where Mr Hijazi was aware that Mr Bull felt bullied by him, having already made a complaint to that effect the previous month.
h. Mr Hijazi had been warned previously about his conduct. Specifically, he gave evidence there had been two complaints about him. The investigation into the second complaint was concluded on 25 March 2019 with a letter to Mr Hijazi outlining the investigation findings. The conduct in question involved an interaction between Mr Hijazi and another employee in which he raised his voice at her. The trigger for the interaction was adverse comments that had been made by the other employee about Mr Hijazi which had been reported to him. In the letter Mr Hijazi was advised that it was open for Calvary to make a finding of misconduct, however the decision maker decided instead to counsel him as to his conduct.
i. Calvary's policies relevant to the conduct and set out earlier in this decision clearly state what behaviour may constitute a breach. There is no dispute Mr Hijazi was aware of these requirements. For example, the Code of Conduct requires employees to avoid negative behaviour such as ignoring others, using inappropriate communications, and blaming others when things go wrong. It is clear, and I find, that Mr Hijazi's conduct, particularly in repeatedly questioning Mr Bull regarding patient identification and contacting him about Allegation 2 in circumstances where he was aware Mr Bull felt bullied by him, was in breach of the Code of Conduct.
[94] In terms of the Grime Investigation, the statements made by those interviewed as part of the investigation support a finding that the conduct of Mr Hijazi was inappropriate, particularly where those statements are materially consistent, and where the witnesses had no vested interest in the outcome of the investigation.
[95] Mr Hijazi was the director of the Department and part of the senior leadership team. It was incumbent on him to at all times behave in a way that was consistent with the relevant Calvary policies including its Code of Conduct, and the Agreement. In this regard I agree with the submission made by Calvary that Mr Hijazi, as the head of the Department, was not free to be 'sombre' towards, 'withdraw from' or 'limit interactions with' junior staff - for the obvious reason that it is likely to impact them adversely. I also accept that Mr Hijazi had been reminded of the relevant Calvary policies and Values in the months leading up to the complaints. His conduct, in my view, was conduct that a reasonable person would consider to be humiliating and intimidating, thus breaching Calvary's Code of Conduct, Values, and the Calvary Prevention of Workplace Discrimination, Bullying and Harassment Policy.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[96] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[17] in explicit terms[18] and in plain and clear terms.[19] In Crozier v Palazzo Corporation Pty Ltd[20] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[21]
[97] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern.[22] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[23]
[98] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Hijazi before his dismissal was effected.
[99] On the evidence before me, I am satisfied that Mr Hijazi was notified of the reason for his dismissal and was given an opportunity to respond to the reason. I also note there is no suggestion by Mr Hijazi to the contrary.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[100] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[101] There is no dispute that Mr Hijazi was provided with the opportunity to have a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[102] Mr Hijazi was not dismissed for unsatisfactory performance and this factor is therefore not relevant in my consideration.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[103] I am satisfied that the size of Calvary and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
[104] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[105] Mr Hijazi submitted that if there was a valid reason for his dismissal, then the dismissal was harsh because of the consequences for him personally and economically, and the dismissal was disproportionate to the gravity of the misconduct in respect of which Calvary acted.
[106] Clearly, there are personal and economic consequences arising from most dismissals. There was nothing put by Mr Hijazi which in my view would elevate the consequences for him to be sufficient to support a finding that his dismissal was harsh in the circumstances. In terms of the argument that the dismissal was disproportionate to the gravity of the misconduct, I am not satisfied that this was disproportionate. The misconduct in my view was sufficient to warrant his dismissal, particularly given the seniority of his position.
[107] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Hijazi was not unfair and accordingly I dismiss his application. An order to that effect will be issued with this decision.
[1] Riskman is the name of Calvary's system of recording incidents, near misses and the like.
[2] See Applicant's submissions of 27 Aug 2020 at para 19.
[5] Wong v Taitung Australia Pty Ltd [2017] FWCFB 990.
[9] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[10] Sayer v Melsteel [2011] FWAFB 7498.
[11] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
[12] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[14] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561.
[15] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[16] Miller v University of New South Wales [2003] FCA 180; (2003) 132 FCR 147
[17] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[19] Previsic v Australian Quarantine Inspection Services Print Q3730.
[22] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[23] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.
Printed by authority of the Commonwealth Government Printer
Hammam Hijazi
Calvary Health Care ACT Limited [2021] FWC 13
(1997) 77 IR 244
(1995) 185 CLR 410
(1995) 62 IR 371
(2003) 132 FCR 147
(2000) 98 IR 137
(1995) 60 IR 1
(1931) 45 CLR 359
(1999) 94 FCR 561
(2010) 194 IR 1