Hargreaves v NSW Health Services Northern Sydney Local Health District.

4The applicant commenced with the respondent on 14 December 2009 as a Security Officer and was terminated on 14 September 2011.The reason for termination was that on 7 June 2011 he struck a patient whilst a medical procedure was being carried out. 5Prior to commencing with the respondent he stated that he had over twenty years experience in the security industry, including being the sole proprietor of his own security business. 6He stated that on 7 June 2011 he commenced at 8.30am, a four hour overtime shift at the Mental Health Intensive Care Health Unit ( MHICU) at Hornsby Hospital. At approximately 11.00am Dr Tina Kastowsky approached himself, Mr Dave Edwards another security officer and some nurses for assistance in the taking of blood from a scheduled patient (CB). He said that after consulting with the nurses Dr Kastowsky made the decision to take the blood sample in the patient's bedroom with the patient in a seated position. There were six persons in the room. They being Dr Kastowsky, Nurse James Wall, Nurse Mark Campbell, Nurse Steve Read, Security Officer Dave Edwards and the applicant. Each person held an arm with Nurse Campbell standing at the doorway and the applicant kneeling down and holding the patient's legs. 7The applicant stated that he was aware that the patient CB had a previous history of aggression and unprovoked violence which had resulted in serious assault on staff. 8The patient became agitated and partially got her arm free from Mr Edwards with the applicant stating he sought to assist Mr Edwards and momentarily took his arms off the patient's legs. The patient then kicked out at the doctor before he reapplied pressure on her legs. 9The patient told the applicant to take his hands off her legs but he maintained the pressure. She then suddenly lunged forward towards the applicant and tried to bite him with her mouth wide open. The applicant said that he pulled his head away and with his open palm of his right hand he struck the left side of her face with a low degree of force. 10He said that it was a reflex defensive action. He then said to her: " Don't try and bite me." 11After the blood sample had been taken all six persons left the patient's room. The applicant then stated that he apologised separately to both the doctor and Nurse Wall , stating that it was a reflex action to defend himself. 12As no computer was available to finished his shift and went home at 12.30pm. At home he wrote up in his contemporaneous notebook so that he could compile an Incident Report on 10 June 2011. 13On 10 June 2011 the applicant stated that a risk assessment was carried out and on that day he was placed on special leave. 14On 14 June 2011 he received an email from Mr Scott Anderson, Manager for Security Services for Northern Sydney Local Health Network advising that an investigation was to take place concerning the incident on 7 June 2011. He was aware that this was going to take place and had already sent an email to Mr Anderson on 12 June 2011 raising his concern that the persons that were involved in the investigation, Mr Anderson, Mr Steve McLeod and Mr David Fenech were person that he had had previous difficulties with. 15On 17 June 2011 the applicant was interviewed by Ms Maree Jones and Mr Stewart Adams with Ms Kim Muller from the Health Services Union as his support person. 16On 23 June 2011 he received a letter from the respondent stating that as a result of the disciplinary action he was facing his name had been placed on Security Check Register (SCR). 17On 15 July 2011 he received a letter from the respondent to state that the investigation had found sufficient evidence to support allegations that he had breached certain sections of the NSW Health Policy Directive Code of Conduct . He received a copy of the investigation. He was given the opportunity to respond by 29 July 2011. 18 In another letter received early August, 2011 from the respondent signed by Mr James Brown, Director Corporate Support, addressed some of the matters raised in the applicant's reply letter. It also stated that it was recommended that his employment be terminated on the grounds of serious misconduct arising from the incident of 7 June 2011. Other work related issues were raised in the correspondence. 19On 19 August 2011, the applicant had a final disciplinary interview with Mr Brown and Mr Fenech. With the applicant was Ms Muller and Mr Randall Millington from his union. In this interview the applicant was asked why he should not be terminated. 20On 14 September 2011 the applicant received a letter from the respondent advising that his services had been terminated. He also received a letter from the respondent dated 14 September 2011, that his record on the SCR had been altered. A copy of the SCR was attached. 21As at June 2011 in addition to being employed by the respondent he also undertook casual work as a Security Officer with Western Sydney Local Health District at Westmead Hospital and South Western Local Health District at Fairfield Hospital. His employment at Fairfield Hospital ceased in September 2011 and his work at Westmead Hospital was placed on indefinite hold in September 2011. 22The correspondence of early August 2011 also included two additional conduct matters. One issue was an incident between the applicant and another worker Mr Mark Muldoon. The other was an allegation that the applicant had failed to declare all secondary shifts. 23The applicant stated that he had previously raised issues of staff safety at Hornsby Hospital in general prior to 7 June 2011. It was his view that nurses had not been properly trained in Aggression Response as well as becoming acclimatized to the high risk environment which contributed to complacency and poor judgement. In his statement the applicant detailed previous incidents within the Mental Health Unit. 24It was the applicant's view that on 7 June 2011, the patient should not have been put in the sitting position. It was the doctor who made that decision. In his view the patient should have been placed in the "Supine" position lying face up with arms stretched and her limbs being held firm whilst the blood sample was taken. 25Since his termination on 14 September 2011 the applicant stated that he has worked on a casual basis for two large security manpower firms. He stated that he earns approximately $500 per week from this work. He stated that his wife was 20 weeks pregnant and works part time as a Senior Nurse at the Westmead Hospital Emergency Department. 26In his statement in reply the applicant stated that as a consequence of having his name placed on the SCR he had lost his position with Fairfield Hospital and had his employment on indefinite hold at Westmead. He was unaware of whether any risk assessment had been undertaken at Westmead. He had made application for a fulltime security officer's position but was not successful. No reason was given. 27He also responded to the issue of the secondary employment investigation stating that he had not the opportunity to respond in the allotted time. He also stated that an agreement reached between his union representative and a Ms Joanne White from the respondent made on 18 October 2011 was later reneged on by Ms White. 28In response to Mr Wall's statement the applicant stated that there was never any black cube of foam put between the patient's legs or surrounding the patient's legs. He stated that he has never used it or seen it. He also rejected the conversation had between the applicant and Mr Wall. The applicant said that the conversation went as follows: Applicant: " I acted in self-defence, she was going to bite me." Wall. " I know, these things happen but be careful as she's (Dr Kastowsky) known for covering herself by reporting anything that happens." 29The applicant stated that he never undertook any training that was called Prevention and Management of Violence and Aggression (PMVA), however he had undertaken Aggressive Response Team (ART) training at Hornsby Hospital. 30The applicant stated that he asked Mr McLeod for him to undertake a Critical Incident Positive Outcome course but his request was declined. 31He said that he was not PMVA trained. 32He stated that he was not part of the nursing staff in MHICU and had not been involved in the briefing regarding patient CB. 33The applicant acknowledges that he did ART training at Hornsby and it was similar in content to exhibits SA3 ( ART) and SA5 (Patient Physical Restraint). He stated that did he undertake training " NSCCH Zero Tolerance, Aggression Minimisation Program" (SA4) or " Respond Effectively to Difficult and Challenging Behaviour" (SA6). 34In written submissions, it was stated that the form of restraint used on the patient on 7 June 2011 was a form of restraint for which the applicant had not been taught to use by the respondent. It was in self defence that the applicant swung his right hand in open fashion at the patient which hit her on the side of the face as well as moving his head away from the patient. It was stated that the respondent had not accepted the applicant's explanation that his actions on that day were self defence and therefore the allegation is that the applicant assaulted the patient. 35 It was also stated that that only two of the witnesses in the room at the time were called to give evidence( not counting the applicant and the patient). No explanation as to why the other two were not called by the respondent. It stated that the evidence of Doctor Kastowsky did not contradict that of the applicant. The evidence of RN Wall's that the action was retaliatory rather than self defence should not be accepted where the evidence shows that the contact was almost instantaneous rather than some point after the patient's attempt to bite the applicant. It was the applicant's submission that his action was not retaliatory but was self defence. Although his action was instinctive it was in a measured and controlled manner in that the force used was proportionate to the threat faced. It was submitted that there was no evidence that the applicant wilfully intended to conduct himself in a manner inconsistent with his contract of employment. 36 The effect of placing the applicant's name on the Service Check Register for NSW Health Services is that the applicant is unlikely to ever be employed in the Public Sector Health industry. The loss of his full time position has resulted in the loss of further casual employment at the two other hospitals. 37That the respondent failed to call either Mr Brown or Mr Griffiths without explanation infers that any evidence that they could have given would not be in the respondent's favour. Did they take into consideration the impact that termination would have on the applicant and what if any other sanctions other than termination were considered ? It was submitted that the termination was unreasonable, unjust and harsh, particularly in circumstances where a warning would have been sufficient. 38 The applicant sought an Order for reinstatement or redeployment, with back pay and continuity. If the Commission determines that reinstatement should not be ordered than an order of 26 weeks payment should be made.

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