Background
8Before considering the issues raised on the appeal and cross-appeal, it is necessary to provide some background, particularly regarding the workplace context in which the issues arose.
9First, the chain of command. Mr Nick Skleparis, Corporate Services Manager appears to have had overall responsibility for security. Reporting to him was Mr Ray Andraos, Security Manager. Mr Andraos was appointed as Security Manager in December 2008. Prior to that Mr Andraos had been employed in the Australian Federal Police as the Duty Operations Manager, Protective Service Counter Terrorism First Response Unit. Mr Joseph Dimeglio reported to Mr Andraos. Until Mr Andraos' appointment Mr Dimeglio had been Acting Security Manager following the dismissal of the previous incumbent, Mr John Hugon, in September 2008. Following Mr Andraos' appointment, Mr Dimeglio was appointed Security Operations Manager following a period of acting in that position. Reporting to Mr Dimeglio were four Senior Security Officers (including Mr Dimovski) and about ten Security Officers.
10It seemed to Lynch AC that there were "2 clear camps" within the Security Department of the Hospital. The first of these was Mr Dimovski and the group supporting him, namely, Mr David Kotevski, Mr Mladen Mofardin and Mr Toni Anevski - each of whom was a Security Officer. Mr Dimovski was the longest serving Security Officer at the Hospital. Mr Mofardin referred to him as the "boss" or the "General". The other group identified by Lynch AC was that "supporting management": Mr Andraos; Mr Skleparis; Ms Lynette McCamley, Senior Security Officer; Mr Lindsay Robinson, Security Officer; Mr Arthur Vay, Security Officer; and Mr Petro Calligas, Senior Security Officer.
11This division into "camps" was, in our view, potentially misleading. The evidence supports the conclusion that there was a reasonably close relationship between Mr Dimovski and Messrs Kotevski, Mofardin and Anevski. However, in so far as the other "camp" was concerned the common thread between the individuals was that they gave evidence in the proceedings adverse to Mr Dimovski.
12Initially, Mr Dimovski and Mr Dimeglio appeared to be friends. However, Mr Dimovski stated in his evidence that upon his appointment as Acting Security Manager, Mr Dimeglio immediately began to "micro-manage, bully and intimidate people." In September 2008, Mr Dimeglio directed Mr Dimovski, Mr Kotevski and Mr Anevski not to speak to each other in Macedonian whilst on duty. Mr Dimovski and the other two officers refused to accept this direction. Mr Dimovski was annoyed at this direction. They continued to speak in the Macedonian language. The three officers later complained to Mr Andraos and, in June 2010, made a formal complaint to the Australian Human Rights Commission. The complaint had not been dealt with at the time of the hearing before Lynch AC. The Acting Commissioner considered it was this incident that was the genesis of the resentment against Mr Dimeglio.
13At sometime in October 2008, Mr Dimovski was informed by Mr Kotevski that Mr Dimeglio made the following comment to him, "David this Department is full of old people that have bad memories and cannot remember things and are also unwilling to change. If you and others continue on this path then I can replace you with contract labour which is much cheaper. What this Department needs is totally new blood."
14On 25 November 2008 a Union meeting was called to address Mr Dimeglio 's alleged bullying, harassment and micro-management. The meeting was informed by the Union Organiser that a new manager (Mr Andraos) was about to commence and the issues concerning Mr Dimeglio would be resolved.
15In November and December 2008 and January and February 2009, Mr Kotevski and Mr Anevski complained by email to Mr Dimeglio about the allocation of overtime, and that it was not being done fairly. The tone of the emails was hostile and in parts abusive. Following an investigation, Mr Andraos found there was no substance to the complaints. Indeed, Mr Andraos found that Messrs Kotevski, Anevski, Dimovski and Mofardin were all "receiving overtime well in excess of other security officers."
16In November 2008, Mr Kotevski lodged a complaint with Mr Skleparis alleging bullying and harassment by Mr Dimeglio. Mr Andraos found the allegations were unsubstantiated, but proposed mediation, a course Mr Kotevski rejected.
17In December 2008, Mr Dimovski said he spoke to Mr Dimeglio. He stated that he had received complaints from several individuals that Mr Calligas was very aggressive towards patients and he also received instruction that no one with a provisional security licence should be working at any Health Department establishment. Mr Dimovski said he requested Mr Dimeglio to allocate Mr Calligas to his team so he could keep an eye on him and train him properly. Mr Dimeglio allegedly said "Don't worry about him, as I said before, he won't be much longer with the Security Department for you to worry about". Mr Dimovski said that when Mr Andraos was appointed Security Manager the issue regarding Mr Calligas being removed from the Department changed. Mr Dimovski alleged Mr Calligas appeared to be favoured by both Mr Dimeglio and Mr Andraos. Mr Calligas was allowed to do whatever he pleased, Mr Dimovski said, despite holding only a provisional licence requiring supervision.
18At the end of January 2009, Mr Dimovski said he informed Mr Dimeglio that he was approached by a number of Security Officers who raised concerns that Mr Calligas was physically and verbally assaulting mental health patients and that he was constantly breaching hospital policy by distributing photocopies of patients' X-Rays depicting foreign objects in rectums and vaginas. Mr Dimovski alleged that Mr Dimeglio had said that he would speak to Mr Andraos about this but to Mr Dimovski's knowledge nothing was done and Mr Calligas' inappropriate behaviour continued. Mr Dimovski said he also noticed that Mr Calligas' behaviour changed towards him and he would often ignore him or fail to answer his questions.
19The issue of abuse of patients was referred to again in Mr Dimovski's evidence. This was described at [54]-[55] of the Acting Commissioner's decision:
[54] In the beginning of March 2009 Mr Dimovski informed Security Manager, Mr Andraos that he was approached by Mr Anevski, Mr Mofardin and Mr Kotevski who raised concerns that Mr Calligas continued to physically and verbally assault mental health patients and was continuing to distribute inappropriate photo copies of patients' X-Rays. Mr Dimovski also informed Mr Andraos that he had personally warned Mr Calligas not to physically and verbally assault the patients. He also told Mr Andraos that since his initial complaint about Mr Calligas to Mr Demiglio (sic), Mr Calligas was now ignoring him. He also informed Mr Andraos that Mr Calligas spent a considerable amount of time in Mr Andraos' office and that Mr Calligas was following Mr Andraos around everywhere which made it impossible for Mr Dimovski to control him and ultimately do his work.
[55] Mr Andraos responded "I run this Department not you, I will run it anyway I see fit". The conversation ended by Mr Dimovski stating that Mr Andraos should be supporting Mr Dimovski when he is trying to do the right thing by the Hospital and not undermine him by not disciplining individuals who are doing the wrong thing.
20Mr Mofardin said in his evidence he had also brought to Mr Andraos' attention that Mr Vay and Mr Calligas had ill-treated patients.
21Mr Andraos in his evidence denied that he had received any complaints concerning physical or verbal abuse by Mr Calligas against patients. In relation to Mr Dimovski's evidence that in March 2009 he informed Mr Andraos that he was approached by Mr Anevski, Mr Mofardin and Mr Kotevski about concerns that Mr Calligas continued to physically and verbally assault mental health patients, Mr Andraos said the conversation with Mr Dimovski never occurred. Mr Dimeglio was not called by SESIAHS to give evidence in the proceedings.
22In relation to the complaints allegedly made to Mr Andraos regarding ill-treatment of patients, Lynch AC found as follows:
[377] I do not accept that Mr Dimovski made these complaints to Mr Andraos. The first time that Mr Dimovski put the allegations in writing was on 28 May 2010 to the NSW Ombudsman, approximately one month after the report of the External Investigator into the allegations against Mr Dimovski. Mr Vay and Mr Calligas in cross-examination denied that they had abused mental health patients.
[378] I find the evidence of Mr Dimovski that he complained to Mr Andraos about Mr Calligas' and Mr Vay's treatment of mental health patients untruthful. It was in April 2009 that Mr Calligas had made an allegation about Mr Dimovski making derogatory remarks about Mr Demigilio (sic). It was from this point on that Mr Dimovski made allegations against Mr Calligas that he had abused mental health patients. In September 2009 Mr Vay made a complaint to Mr Andraos that Mr Dimovski had made derogatory remarks about Mr Demigilio (sic) to remove him from his position. I find that Mr Dimovski was a very close colleague of Mr Kotevski, Mr Mofardin and Mr Anevski. Mr Dimovski described his relationship as no more or no less friendly than any other work colleague. I prefer the evidence of Mr Vay and Ms McCamley that the four men had a close relationship. Therefore I find the evidence of Mr Kotevski, Mr Mofardin and Mr Anevski also not true.
23In February 2009, Mr Anevski alleged that Mr Dimeglio had bullied and harassed him. He also alleged sexual harassment by Mr Dimeglio had occurred in December 2008 when Mr Dimeglio rubbed his groin on Mr Anevski's shoulder in the Security control room. Mr Anevski said he did not report the matter immediately because he was embarrassed. An investigation was carried out and six of the eight allegations were found to be unsubstantiated, including the allegation regarding sexual harassment. In respect of the remaining two allegations, these were relatively minor and informal counselling of Mr Dimeglio was recommended.
24In early 2009, Mr Calligas said he overheard someone say that Mr Anevski had made a formal complaint against Mr Dimeglio including a complaint of sexual harassment. Mr Calligas thought that was wrong and so advised Mr Andraos in March 2009 of what he had heard and seen over past months. This was described by the Acting Commissioner at [319]:
[319] On 9 December 2008 Mr Dimovski was rostered on shift with Mr Calligas. In the course of that shift Mr Calligas alleges that Mr Dimovski said referring to Mr Demigilio (sic) "he always has bad breath." Mr Dimovski called Mr Demigilio (sic) a "faggot" and said, "he always has bad breath, he must suck cock." Mr Calligas said, "he's all right", and then Mr Dimovski said to him, "are you fence seater?" to which Mr Calligas replied, "I'm just here to work." Mr Calligas made a note of that discussion in his Note Book for that day. Mr Calligas was next rostered on shift with Mr Dimovski on 11 December. So two days later Mr Dimovski said to him, "if we put in a lot of complaints against Mr Demigilio (sic) he won't get the job."
25In September 2009, Mr Andraos was approached by Mr Vay who told Mr Andraos he was thinking of quitting his job. He informed Mr Andraos of remarks Mr Dimovski had made to him in July and August 2009. This was described by the Acting Commissioner at [321]:
[321] On 12 July 2009, some 6 months later, Mr Dimovski was again given a newly recruited junior officer, by the name of Mr Vay. He was supervised by Mr Dimovski. On one of the first shifts that they worked together he said to Mr Vay, "what do you think about poofs?". Mr Vay was surprised to hear this and he replied, "I've got no problems with anyone, as long as there is a mutual respect both ways." Mr Dimovski then said that, "Joseph Dimeglio's a poof. He shouldn't be in his position." On 5 August, so roughly three weeks after that, Mr Vay was again rostered to work with Mr Dimovski who said to him during the shift, "If you get close enough to Joseph (Mr Demigilio (sic)), he has cock breath." Mr Vay was disturbed to hear this, but he decided against reporting the matter because at the time he had been employed for about two months.
26Both Mr Vay and Mr Calligas claimed that they made contemporaneous notes in their Note Books regarding Mr Dimovski's denigration of Mr Dimeglio. Mr Dimovski claimed the entries were fabricated. Lynch AC referred to the evidence in this respect at [365] (The reference in the quotes to "Joseph" is a reference to Mr Dimeglio. The reference to "George" is a reference to Mr Dimovski. The reference to "Ray" is a reference to Mr Andraos):
[365] The particular entries which the applicant alleges were fabricated were as follows:
Mr Calligas' Note Book No. 103436 entry on 9/12/08:
"S/O Dimovski making vulgar and disrespectful comments towards operation manager Joseph Dimeglio. George called Joseph a faggot, and that Joseph always had bad breath, he said he must be sucking cock. S/O Dimovski did ask if I was a fence sitter. I replied to him I'm just here to work, I feel like he is testing to see my reaction or comments on this."
Mr Calligas' Note Book No. 103436 entry on 11/12/08:
"S/O Dimovski made comments to me about Norm the casual, that he is a poof, and not to trust him, he also stated again that if we put alot of complaints in against joseph he wouldn't get the operation's managers job . I simply couldn't believe what i had heard from a senior security officer. I don't really need this bullshit. I can't believe i left radiology for this shit."
Mr Vay's Note Book No. 103421 entry on 12/7/09:
"While on N/S I was conducting a routine Patrol with George Dimovski. He asked me what I thought of poofters! I said that I don't really have a problem with anyone. I said I don't care ... what the person is as long as Mutual respect is both way's.
He said that our Operations Manager is a Poof and that he should Not be in that Position. I was taken back about these comments. I did not say anything to George. I jut thought he may have had a argument with Joseph. I don't want to get involved."
Mr Vay's Note Book No. 103421 entry on 05/8/09:
"George told me that if you get close enough to Joseph he has Cock breath.
I think I should speak to Ray. I really can't handle this. I have only been here a couple of months there is so much anger towards Joseph. I do not want to continually hear about this. I think they hate Joseph being Ops. Manager."
27In relation to Mr Dimovski's claim that the entries in the Note Books were fabricated, the Acting Commissioner found as follows at [366]-[373]:
[366] Prior to November 2009 Note Books were issued with a registration number beginning with the letter "N". Between December 2008, the time when Mr Andraos commenced employment and 18 September 2009 there is no record of any Note Books issued in the Security Note Book Register (Exhibit 10). Mr Andraos in cross-examination agreed that no Note Books had been issued. Mr Andraos further said in cross-examination that Note Books of a different batch were ordered some months before the current batch runs out and they are not in a sequential order.
[367] Mr Vay's and Mr Calligas' Note Books contained entries which preceded and postdated the date of the entries in question. For Mr Vay and Mr Calligas to have fabricated their Note Book entries on the relevant dates they would have had to copy all the earlier and later entries as well. The applicant submitted that all Mr Vay and Mr Calligas had to do was to get a copy of the Shift Log Reports and copy them into their fabricated Note Books. There is no evidence that they have done this.
[368] An examination of the Note Book Register (Exhibit 10) reveals that a Note Book No. N049145 was issued to Ms McCamley on 9/11/07. The next Note Book to be issued was Note Book No. N049244, issued to Mr Kotevski on 10/11/07. Although these Note Books were issued one day after another there is an increase in the numbers from N049145 to N049244. The next entry on the Note Book Register reveals a Note Book No. N048960 was issued to C Wright on 18/9/09. This Note Book represents a decrease in number from the Note Book issued to Mr Kotevski No N049244, although it was issued at a later date. The Note Book Register reveals that Note Books issued were not done so in a sequential order, that is the Note Book numbers increase and decrease in a non-sequential order.
[369] Mr Calligas' Note Book No 103436 was issued to him on 18 August, 2008, the day of his first shift (Exhibit 15). On the 29 July, 2008 he signed, as an item designation, for such things as a Note Book, shirts, trousers, pouch handcuffs and the like (Exhibit 14). However, the 29 July, 2008 was not the date when the Note Book was issued to him.
[370] Mr Calligas' Note Book was issued to him on 18 August 2008. It is not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103436 of Mr Calligas was issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.
[371] Mr Vay's Note Book was issued to him on 20 June 2009. It was not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103421 of Mr Vay was also issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.
[372] There is approximately a two year gap in the Note Book Register (Exhibit 10) during which time no entries were recorded. This is not conclusive evidence that the Note Book entries were fabricated.
[373] I find the Note Books of Mr Calligas and Mr Vay were not fabricated. The Note Book Register does not provide evidence that the Note Books are fabricated. It merely provides evidence that the Register was anything but reliable. Further, on the balance of probabilities, I find that the Note Books of Mr Calligas and Mr Vay had contained such a large number of incidents that it is highly unlikely that they are fabricated.
28Two other officers, Mr Robinson and Ms McCamley stated that they had heard derogatory remarks made about Mr Dimeglio. Mr Robinson said in his evidence he had heard Mr Dimovski and Messrs Mofardin, Anevski and Kotevski refer to Mr Dimeglio as a "poofter" and "faggot". Ms McCamley did not hear Mr Dimovski make derogatory remarks about Mr Dimeglio, however, she did witness Mr Anevski say to Mr Dimeglio that he was a "poofter". Ms McCamley also heard Mr Dimovski say to another officer some years earlier than 2008 that, in referring to Ms McCamley: "We need to get rid of that bitch and we'll do what we can to get rid of her. She's a dog, she's gonna go down. She doesn't belong in this department." Ms McCamley referred to Mr Dimovski as the "ringleader" of a group consisting of himself, Mr Mofardin, Mr Kotevski and Mr Anevski.
29In January 2010, Mr Kotevski complained to the Chief Executive of SESIAHS that Mr Andraos had engaged in corrupt behaviour. It was found, following an investigation, there was no evidence that Mr Andraos had acted improperly. In May 2010, Mr Dimovski and Mr Kotevski complained to the NSW Ombudsman, alleging corruption within the Security Department of the Hospital.
30As a consequence of the investigation into Mr Anevski's complaint in February 2009 that he had been sexually harassed by Mr Dimeglio, a complaint that was found to be unsubstantiated, Mr Anevski sought a review of the finding by the Professional Practice Unit ("PPU"), which found that it was not possible to sustain Mr Anevski's allegations. The PPU, however, recommended that an external investigator be appointed to "consider the allegations that staff have conspired and fabricated allegations against Mr Dimeglio in order to prevent him being appointed to the Operations Manager's position."
31In September 2009, Michael Maher was engaged to investigate the matters recommended by the PPU. Mr Maher provided his report in April 2010. He found that Mr Dimovski had acted in a derogatory manner and had spoken words of insult regarding Mr Dimeglio with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Dimeglio from his position in an improper (unlawful) way. Mr Dimovski was also found to have breached the NSW Health Code of Conduct and he failed in Key Performance Areas/Duties as set out in the Position Description of a Senior Security Officer and he may well have acted corruptly as defined by the Independent Commission Against Corruption Act 1988.
32It was subsequently recommended to the Chief Executive of SESIAHS that Mr Dimovski be advised of the intention to terminate his employment based on Mr Maher's report and to show cause why that should not occur. At the time, Mr Dimovski was on leave so a decision was taken to suspend him on full pay effective from 26 July 2010 until the Chief Executive had made a decision regarding termination. In the meantime, Mr Dimovski made further complaints about various members of the Security Department to the Privacy Commissioner, the NSW Ombudsman and the Human Rights Commission.
33Mr Dimovski replied to the show cause letter denying all of the allegations against him and claimed that the evidence upon which the allegations were made was fabricated. He further claimed that the allegations against him were part of the ongoing bullying and harassment of him by management.
34On 26 October 2010, the Chief Executive wrote to Mr Dimovski terminating his employment. The Chief Executive indicated in his letter that he had accepted the recommendation to terminate on the grounds of serious breach of the NSW Health Code of Conduct, particularly Section 1.1 Personal and Professional Behaviour, 1.2 Good Faith, Section 2 Conflicts of Interest (2.1 and 2.2) and Section 7 Discrimination, Harassment, Bullying and Violence. Mr Dimovski was paid one week's salary in lieu of notice.