The Evidence
26The Applicant gave evidence that he had been in the security industry in varying capacities for approximately 20 years prior to his commencement with the Respondent, including managing his own security company in Ballina prior to moving to Sydney in 2001.
27In February 2009, he commenced casual employment as a Security Officer with the WSLHD (Cumberland Hospital facility). In addition, in December 2009, he commenced as a permanent full-time Security Officer with what the NSLHD (Hornsby Hospital facility). Also in addition, he completed his first casual shift as a Security Officer with the SWSLHD (Fairfield Hospital facility) on 3 May 2010 having rejected an offer of a permanent part-time position with that Service because of his full-time position with the NSLHD.
28The Applicant gave evidence regarding the training he received while he was with SSWLHD which, he understood, exceeded $1500 in value in relation to external training. He also participated in the internal training provided to the permanent Security staff, including annual refresher courses.
29The Applicant also gave evidence of the contribution he made to the administration of the Security Department at Fairfield Hospital including his successful representation of other casual Security staff in relation to implementation of a policy relating to shoe and uniform allowance; introduction of 12-hour rosters, and updating/maintaining of the duress alarm testing schedule.
30The Applicant acknowledged that some of the policies that formed the basis of the workplace duties of Security Officers in all facilities originated from NSW Health. Nevertheless, each Area Health Service also had specific workplace policies and procedures that were implemented at each of its hospitals. In addition, each Hospital had specific procedures to cater for its particular environment.
He submitted that there were therefore some variations in the duties undertaken by Safety Officers between each hospital and between each Area Health Service. In addition, those duties varied depending on the size of the hospital, the level of risk, the type of in-patient and out-patient services that were provided and the socio-economic circumstances of the surrounding area. The Applicant provided examples of those differences and the risks associated with being a Security Officer at Hornsby Hospital in comparison with Fairfield Hospital.
The Applicant noted that Fairfield Hospital and Braeside Hospital on the same campus do not have any mental health in-patient or out-patient services or any mental health units such as a Mental Health Care Intensive Care Unit, an Acute Mental Health Care Unit or a Psychiatric Emergency Care Centre.
31The Applicant submitted that he was requested, on 14 September 2011, to attend a meeting with senior management of Fairfield Hospital on 21 September 2011 to discuss his termination from Hornsby Hospital. When he eventually met with Paul Miles, Director of Corporate and Finance, and Chris Leahy, Acting General Manager, he said he was advised that the reason for the hour-long delay in commencing the meeting was the fact that they were liaising with the Human Resources Department attempting to obtain agreement to conduct a risk assessment on him in an effort to find options other than termination of his employment. He was advised that the Human Resources Department had issued instructions to terminate his employment.
32He said he received a hand-delivered letter dated 21 September 2011 in which Ms Amanda Larking, Chief Executive, SWSLHD, advised that, as per section 116 of the HS Act, the employer of all staff across NSW Health is the Director General, NSW Department of Health. As his employment had been terminated on 14 September 2011 from NSLHD, it followed that his employment with Fairfield Hospital was also terminated.
33He said that, on 30 September 2011, he forwarded an email to Paul Miles, Director of Corporate Services, Fairfield Hospital, indicating that he would not lodge a separate unfair dismissal application in relation to his termination as a casual security officer at Fairfield Hospital and that he would rely on an undertaking that if he was successful in overturning his termination and was reinstated as a result of the Hornsby application, that result would apply to his employment generally with the Respondent.
He explained that he used the wording in the NSW Health Services Service Check Registry in negotiating the "understanding" with the SWSLHD. In particular, he referred to "overturning" his recent termination.
34On 10 October 2011, Amanda Larkin, noted in correspondence to the Applicant that, should the unfair dismissal application against NSLHD result in his reinstatement, that he would also be reinstated to his casual security officer position at Fairfield Hospital:
The Applicant pointed out that, had he not received that undertaking, he would have lodged an unfair dismissal application by no later than 19 October 2011 (within the 21 day legislative limit) seeking to be reinstated to his casual position with the SWSLHD.
35The Applicant noted that his phrase "overturn my termination" had been altered to read "reinstatement" back to NSLHD. He said that, while the terms of the undertaking did not meet his requirements, he did not wish to unnecessarily escalate matters, possibly harm his good relationship with that Health District and, in addition, face the burden and cost of pursuing another application before the Commission.
He pointed out that had Ritchie C provided a remedy other than reinstatement, he would have lodged an out-of-time application and believed that he had reasonable prospects of success given the circumstances.
36The Applicant provided correspondence exchanged between the parties when both he and his Solicitor wrote to the WSLHD seeking his reinstatement to Cumberland Hospital following the Ritchie C decision. All attempts to meet with the Senior Human Resources Consultant and requests for reinstatement were futile. The WSLHD consistently insisted that the district was sufficiently staffed with casual security officers. The Applicant said he did not pursue his reinstatement to Cumberland Hospital any further.
37The Applicant said that his Solicitors received correspondence from Ms Luci Caswell, A/District Director Human Resources, dated 10 July 2012, acknowledging the agreement, and advising that, based on the material provided by the Applicant, it seemed that the Applicant had been successful in his unfair dismissal application in obtaining reinstatement with the NSLHD. Ms Caswell advised that, accordingly, the Applicant would be reinstated at Fairfield Hospital.
38During cross-examination, the Applicant agreed that he used emails to communicate with management when he wanted a record kept of conversations. He said he reported to Mr Veljovic verbally in July 2012 that an appeal had been lodged by the Respondent against the Hornsby decision and the Stay Order that had been issued by the President, Boland J. He argued that he had not put it in writing because it was common knowledge amongst staff in the Security Department.
39The Hornsby Appeal Full Bench handed down its decision on 13 November 2012. The Applicant said he was rostered to work the 6 pm shift on 15 November 2012. However, he received a telephone call from Mr Miles and Ned Veljovic advising that he was not required to attend as a result of the Stay of the Ritchie C decision issued by his Honour, the President, on 9 August 2012. He was advised that he would be paid for that shift. He denied that he was told verbally that his employment was to be terminated. He insisted that Mr Miles told him that he was stood down for that shift because management needed time to assess the impact of the Hornsby Full Bench decision.
The Applicant pointed out that, approximately one hour later, at about 5.17 pm, he emailed Mr Veljovic advising that he needed to provide him with an updated resume and the name of a new referee. He queried why, if he had been told of his impending dismissal, he would have forwarded that email, why he would have provided a new referee, why he bothered to attend the interview the following day and, indeed, why was he allowed by the Service to attend that interview?
The Applicant denied receiving any telephone calls from Mr Miles on 16 November 2012 advising him of his termination. He provided his telephone records of outgoing calls to prove that he attempted, on four occasions, on that day to contact Mr Miles and was unsuccessful.
The Applicant said that he received a letter of termination at 3.49 pm on 16 November 2012. He said the termination came as a "great surprise" to him because he had not received any informal or formal notification of any performance or disciplinary issues during his employment with the SWSLHD. He was left feeling "very upset and concerned" in view of the fact that he was to attend an interview for a full-time position on the same day.
40The Applicant pointed out that SWSLHD had not conducted any risk assessment on him.
The Applicant said he held the view, supported by legal advice he had obtained, that the finding of Ritchie C was upheld, that is, the termination remained "overturned" but with an alternative remedy substituted in its place.
41The Applicant advised that he had been attempting to obtain a full-time position with SWSLHD. He applied for a full-time position which was advertised internally in about June 2012. The Selection Committee recommended him as the preferred candidate for that position. However, the SWSLHD declined to approve the recommendation. He requested, and obtained, feedback from Mr Miles regarding his application. He was advised that the SWSLHD had concerns at the feedback received from one of the referees he had provided. Mr Miles suggested to him ways in which he could address those concerns. The Applicant stated that, although he did not agree with those concerns, he addressed them in a constructive and positive manner by providing a comprehensive submission to Mr Miles.
42The Applicant said he applied for another full-time position that had become vacant as a result of a resignation. It was externally advertised in late October 2012. He attended the pre-scheduled interview on 16 November 2012. He received correspondence from Mr Veljovic on 2 November 2012 advising him that his application had not been successful. He believed that he had been unsuccessful because of his termination from SWSLHD, He had no legal or industrial right or avenue to appeal the decision to remove him from the selection process for that position.
43The Applicant contended that the Respondent had relied on the provisions of section 116 of the HS Act for arriving at the decision to dismiss him from employment. The Applicant pointed out that nowhere in that section does it state that continued employment at one Health District is dependent on continued employment at another.
44The Applicant queried how it was possible that, if, indeed, all staff employed within the NSW Health Services are employed by the one employer, the Director General:
(a)he was employed as a full-time employee at one hospital and casual employee in two other hospitals all at the same time?
(b)he was provided with three separate employee numbers?
(c)he received three different lots of wages - all of which were deposited into the same bank account?
(d)he received letters of termination from each of the Health Services rather than a single letter of termination from the Director-General?
(e)each Local Health District is run as a separate business, each with its own Australian Business Number (ABN) when organisations such as the NSW Police Force and NSW Corrective Services work under "one generic centralised banner"?
45The Applicant said that he had communicated with Mr Miles on 19 November 2012 pointing out that his opinion, and that of his legal advisers, was that the Ritchie C decision remained intact in relation to the finding of an unfair dismissal and that only the remedy had been altered. He requested reinstatement to his former position with the SWSLHD and also requested that a meeting be arranged to resolve the issues between the parties to avoid an escalation. Both requests had been ignored.
46The Applicant referred to various telephone conversations he held with Paul Miles and Ned Veljovic. He pointed out that they had not, despite there being several opportunities given to them, provided any reason for his termination save for the belief that the Hornsby Full Bench decision had upheld his termination from NSLHD.
47The Applicant recalled a conversation he had with Mr Bert Coquillon, Industrial Officer with the Health Services Union, after the Hornsby Appeal Full Bench decision was handed down. He contended that Mr Coquillon told him that the NSLHD would not be putting his name back on the Service Check Register as a result of that decision.
The Applicant relied on section 3.5 of the Service Check Register policy directive as support for his contention that the Respondent does not have authority to put his name back on the Register.
48The Applicant said he became aware that a full-time Security Officer commenced full operational duties at Fairfield Hospital on 28 December 2012 after completing training shifts approximately a fortnight previously.
49The Applicant is seeking reinstatement to his former position with the SWSLHD as a casual Security Officer; payment for the period from his termination until his reinstatement and that his service be regarded as unbroken.
He suggested that the payment be calculated as follows: the actual remuneration he would have received for shifts he was rostered by Ned Veljovic to work, and would have worked but for his termination, from the date of his termination up to 28 December 2012; and thereafter, lost wages to be calculated on average wages.
In his statement evidence in chief, the Applicant advised that he had continued to work as a casual Security Officer on Friday and Saturday nights undertaking crowd control. He pointed out that such work did not interfere with his work for the SWSLHD and therefore should not be taken into account in discounting any monetary compensation to the applicant in the form of back pay. In his statement in reply, the Applicant advised that he had changed jobs and was now working as a casual undertaking covert cash in transit work.
During cross-examination, the Applicant insisted that he did not work for New South Wales Health but worked for three "very separate, very different" local health districts. The Applicant was shown a copy of an email forwarded to all staff by Dr Mary Foley when she was first appointed as Director-General. The Applicant acknowledged that he had responded with an email dated 12 April 2011 to which he had copied Mr Paul Miles and Mr Ned Veljovic. He had congratulated Dr Foley on her appointment and made a suggestion that the uniform for Security Officers be standardised, just as occurs with Nurses, Cleaners, etc. across all "departments" of the NSW health system. He denied that he considered Dr Mary Foley, the Director-General, to be his ultimate employer:
I had three separate employers. I was working under the assumption back then. What I know now is completely different. It's not a matter of me changing my view. The simple fact of the matter is I was ignorant back then and now because of all the research I've done I know now it's different.
50The Applicant confirmed that at Fairfield Hospital he had to deal with the psychiatric geriatric ward at Braeside. He also confirmed that as special constable at Fairfield, he had powers of arrest equivalent to a police officer. Unlike a citizen's arrest, he could arrest on suspicion.
51Mr Simon Alan Gavaghan was called to give evidence on behalf of the Applicant. He joined the Security Industry some 12 years ago and has worked at Fairfield Hospital as a Security Officer for some 5.5 - 6 years.
52Mr Gavaghan gave evidence that he did not believe that the role of Safety Officer differed greatly from one hospital to another pointing out that they are employed to help keep a safe environment for the patients, visitors and staff and to protect the property and information kept at the hospital.
53Mr Gavaghan confirmed that when they worked together at Westmead and at Fairfield, he found the Applicant to be a competent worker when dealing with aggressive people and when responding to general enquiries from the public.
54Mr Njegos Veljovic was also called to give evidence on behalf of the Applicant. He commenced as a casual Security Officer at Fairfield Hospital in 1991 and became full-time in 2000. In 2006, he was appointed full-time Fire Safety and Security Manager at Fairfield Hospital where he remains employed.
Mr Veljovic confirmed that the Applicant assisted by acting as go-between in a dispute between security officers and management in regards to a uniform and shoe allowance matter. He pointed out, nevertheless, that the Applicant had appointed himself to that position.
55Mr Veljovic agreed that he encouraged security officers to make suggestions that would make the work place more efficient and more effective. He also agreed that the Applicant made suggestions and sometimes they were appropriate but pointed out that the Applicant also made suggestions that were not appropriate.
56Mr Veljovic advised that concerns were expressed to him by nursing staff from the Emergency Department and 2B Ward about the attitude of the Applicant towards them. He could not confirm that the complaints arose as a result of interpretation problems created by language barriers because the complaints came from a number of people from differing backgrounds that included Australian and Anglo-Saxon backgrounds. He advised that he never had any issues with the Applicant performing his work but, rather, the manner in which he did the work.
57Mr Veljovic gave evidence that although he could not provide any statistics, the hospital does get mental health patients either self presenting or brought in by members of their family. He also stated that there are occasions when a mental health patient presents at the hospital but the staff are not aware of this until their file is brought up. In addition, there is a detox unit on the campus that the security officers are required to look after and, in his opinion, at least 80% of its clients visiting Corella lodge may and do have mental health issues.
58Mr Paul William Miles, Director of Corporate Services and Finance, Fairfield Hospital explained that he is responsible for the management of all non-clinical staff and services at that Hospital. Mr Ned Veljovic, head of the security department, reported directly to him. Mr Miles provided a detailed description of the facility and the type of patients it attracted.
59Mr Miles pointed out that Statements of Duties are produced in consultation with the Ministry of Health. The generic statement of duties for security officers at the Hospital, tendered in the proceedings, relevantly includes the following key performance areas:
- Respond immediately to all emergency calls (ie Fire, Bomb, Assaults and Aggressive incidents) and provide assistance;
- Assist staff in restraining violent or aggressive patients as directed by medical staff;
- Provide assistance to staff in dealing with unruly persons; and
- Conduct static security duties for potential aggressive patients prior to being assessed for scheduling.
The Statement of Duties advises applicants that the position has been assessed as being at high risk of aggression and will involve some exposure to physical risks which may arise when assisting clinical staff in the management of potentially aggressive patients and/or assisting in a range of emergency situations envisaged by the Statement of Duties.
Applicants are required to sign a copy of the Statement of Duties to confirm that they have read it, understand its contents and accept that they must work in accordance with the requirement of the position.
It is noted that the Statement of Duties was reviewed in July 2011 and was not the one signed by the Applicant. Unfortunately, the Applicant did not take the opportunity to compare it with his original statement of duties in order to comment on the document. Nevertheless, it was recognised that should the Applicant be reinstated to his former position, that is the Statement of Duties that would be applicable to him.
60Mr Miles also tendered in the proceedings a copy of the current Position Demands Checklist for security officers at the Hospital. The checklist includes, amongst other things, a list of Psycho-Social demands which occur occasionally, that is, the activity exists up to 1/3 of the time when performing the role:
- Role involves interacting with distressed people;
- Role involves interacting with people who may be aggressive both physically and verbally;
- Role involves treating patients who are in police custody or under police protection;
- Role involves interacting with, or providing care to, persons who may have a psychological or psychiatric disorder.
In relation to the working environment, the role involves direct responsibility for the safety of others.
Once again, the Security Officer is required to sign a declaration that they are fit and able to perform the duties of the position as outlined on that check list.
61Mr Miles confirmed that the Applicant forwarded an email to him dated 30 September offering not to lodge a similar claim against SWSLHD if he could rely on an undertaking that if he were reinstated as a result of the Hornsby application, the result would also apply to his employment with the SWSLHD. Mr Miles said he was left with the clear understanding that reinstatement of the Applicant to Hornsby Hospital would result in reinstatement to Fairfield Hospital and, similarly, an unsuccessful outcome would result in the maintenance of his termination from Fairfield Hospital.
62Mr Miles stated that he was aware that Ms Amanda Larkin, Chief Executive, responded on 10 October 2011, providing an undertaking in relation to a reinstatement by the Commission.
63Mr Miles stated that the Respondent complied with its undertaking upon receiving correspondence from the Applicant's Solicitor on 7 June 2012 advising that Ritchie C had reinstated him to his former position at NSLHD in a decision dated 1 June 2012. The Applicant worked a number of casual shifts between 30 July 2012 and 7 November 2012. He was rostered to work a shift on 15 November 2012 but was stood down as a result of the Stay Order issued by his honour, the President. He was, nevertheless, paid for that shift owing to the late notice. Mr Miles stated in cross-examination that he was not aware of any plan at that stage to terminate the Applicant.
64Mr Miles recalled that he forwarded a termination letter to the Applicant by email at 3.50 pm on 16 November 2012. At approximately 4 pm, he received a telephone call from the Applicant. He tendered a file note he had created regarding that conversation. He noted that the Applicant was laughing throughout the conversation describing his termination by the SWSLHD as baseless. He said the Applicant:
(1)advised that the HSU advised him that confirmation had been received from Richard Griffins, Director of Workforce, NSLHD, that the Applicant would not be placed on the SCR;
(2)maintained that the Hornsby Full Bench had overturned his termination as it was "unjust and unreasonable" (referring specifically to paragraphs 45, 47 and 58 of their decision);
(3)considered the 26-weeks pay awarded to him as a pay-out and not a termination;
(4) intended to dispute his termination from SWSLHD pointing out that his name was no longer on the SCR.
(5)maintained that, as his name has been removed from the SCR, there was no impediment to his continued employment with SWSLHD;
(6)sought a meeting with Mr Miles in order to present a case in support of his reinstatement.
Mr Miles said that he responded that the decision to dismiss him from SWSLHD was not a result of his inclusion on the SCR but was the result of the decision of the Full Bench in relation to the impracticality of his reinstatement.
He said he advised the Applicant that it was prudent to read the termination letter first and then decide what he wanted to do. He also suggested to the Applicant that he obtain legal advice before settling on a course of action. He reminded the Applicant of his ability to utilise the services of the Employee Assistant Program and offered to assist him in arranging such a meeting.
65In response to a question in cross-examination, Mr Miles advised that he had conducted a preliminary investigation into the conduct of the Applicant in March 2011 when it was alleged by another Security Officer that the Applicant had verbally assaulted him, threatened him and thrown keys at him. The matter had not progressed to a formal investigation because both Officers had resolved to settle the matter by mediation.
66Also in response to a question in cross-examination, Mr Miles recalled that, in providing telephone feedback to the Applicant in August 2012 following an unsuccessful application for a full-time position at the Hospital as a Security Officer, he had suggested to him that he establish regular meetings with Mr Veljovic in order to find ways and means of addressing his shortcomings which Mr Miles personally observed while the Applicant undertook his duties at the Hospital - his general communication with other Security Officers was more like that of a Supervisor than a collegiate manner, his ability to work as part of a team and also his judgment, particularly at times of immediate high risk. He recalled that the Applicant had not taken up that suggestion. Instead of taking his advice, he said the Applicant had compiled a folder of documents in response to the issues he raised with him. Mr Miles said that he advised the Applicant that improvements displayed over a period of time would be more appropriate and would strengthen future applications for positions.