Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 - NSWIRComm 2004 case summary — Zoe

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Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27

[2004] NSWIRComm 27

Industrial Relations Commission (NSW)|2004-07-01|Before: Sams DP, Walton VP, Schmidt J

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Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Sams DP, Walton VP, Schmidt J

Source

Original judgment source is linked above.

Judgment (524 paragraphs)

[1]

CITATION : Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 APPLICANTS Allan Staal Matu Tupene Health and Research Employees' Association, on behalf of PARTIES : Leslie William Nagy, Keith Prosser, Warren James Cook, Ronald Harper, Warren Stickens, Richard Potlocka and Paul Gordon Mitchell INTERVENOR Labor Council of New South Wales RESPONDENT Western Sydney Area Health Service FILE NUMBER: 6816, 6817, 6818, 7232, 7233, 7234, 7235, 7236, 7237 of 2002 CORAM: Sams DP Termination of employment - collective dismissals of hospital security officers - whether dismissals "harsh, unreasonable or unjust" - allegations of misconduct - allegations of unauthorised absences - failure to fill in occurrence log and vehicle running sheets - whether allegations proven - covert video surveillance - intervention of Labor Council - compliance with Workplace Video Surveillance Act - investigation by employer - reliance on surveillance agents' notes and video footage - allegations of fabricated evidence - failure of agents to give evidence - employees interviewed - invitation to explain unauthorised absences from hospital campus - non co-operation of employees - custom and practice - external patrols of hospital - safety of patients, staff and visitors - occupational health and safety - 12 hour shifts without break - award provisions - allegations of award breaches - respondent's policies - whether policies known - three applicants resigned - whether resignation a constructive dismissal - principles considered - seven applications out of time - whether "sufficient reason" for delay - exercise of discretion - inspection of hospital campus and surrounds - relevant principles. CATCHWORDS : Held, resignations constitute constructive dismissals - sufficient reason to allow out of time applications to proceed - clear breaches of Workplace Video Surveillance Act - reference of breaches to appropriate authorities - non co-operation of employees regrettable, but understandable - failure by employer to particularise the allegations - preference for unreliable evidence - failure to take account of explanations - custom and practice established - absences from hospital not always authorised - investigation seriously flawed - failure to give weight to mitigating factors - condonation of conduct by employer - failure to satisfy evidentiary onus - relevant persons not called to give evidence - allegations not proven - applicants unfairly dismissed - all dismisals "harsh, unreasonable and unjust" subsantively and procedurally -reinstatement not impractical - reinstatement ordered with back pay and no loss of continuity - costs application to be considered. Industrial Relations Act 1996 LEGISLATION CITED : Workplace Video Surveillance Act 1998 Occupational Health and Safety Act 1983 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Allison v Bega Valley Council (1995) 63 IR 68 Anthony Bonaccorso and General Forest Tree Surgeons Pty Limited [2003] NSWIRComm 70 Antonakopoulos v State Bank (1999) 91 IR 385 Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (on behalf of Shauna Lorelle Borg) and Merrylands Bowling, Sporting and Recreational Club Limited [2002] NSWIRComm 291 Bankstown City Council v Paris (1999) 93 IR 209 Bates v Gundagai District Services Club (unreported Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC99/5504, 6 May 1999) Buckman v Burdekin (1998) 85 IR 415 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Burke v McGirr (1995) 87 IR 54 Byrne & Anor v Australian Airlines (1995) 185 CLR 410 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Coghlan v Donald and Donald Advertising (unreported, Connor C, IRC01/6028, 15 July 2002) D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Davies & Anor v General Transport (1967) 67 AR 371 Day v Lumley Life (1999) 90 IR 70 Essential Personnel Pty Ltd v Wray (1996) 70 IR 109 Franklins Limited v Webb (1996) 72 IR 257 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Herson v One.Tel (unreported, Sams DP, IRC98/5181, 18 February 2000) Hill and Department of Juvenile Justice [2000] NSWIRComm 128 Hollingsworth v Commissioner of Police (1997) 77 IR 339 CASES CITED : Hollingsworth v Police Commissioner (No.2) (1999) 88 IR 282 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter IRC72/259, 14 September 1972) Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57

[30]

15 On 10 September 2002, Mr Potlocka received a letter from the respondent in the following terms: Dear Mr Potlocka It has been brought to my attention that you are alleged to have committed serious misconduct and in so doing breached the Area Code of Conduct. The particulars of these allegations are as follows: 1. On 15 July 2002 at 1:45am you left in the company of another security office the premises of Blacktown Hospital in a hospital vehicle without authority and remained off campus until 2:15am. It is further alleged that you did not record this absence in the occurrence log, nor in the motor vehicle log sheets. If this allegation is true, it would appear that you have disobeyed previous instructions concerning absence from the hospital campus, proper documentation of the occurrence log and motor vehicle running sheets. If true it would appear that you have, in addition, breached the Areas Code of Conduct specifically; 1.1 Unacceptable behaviour - 1.1(i) theft or dishonesty, 1.1(vi) failure to ensure that all health service activities are conducted in a safe, responsible and effective manner, 1.1(x) being absent from work without satisfactory explanation, 1.1(xi) failure to obey lawful direction given by an authorised person, 1.1(xii) failure to work within the Area's policies and procedures, 1.3 Performance of Duties, 8. Use of official resources, 14. Corrupt Conduct and reporting corrupt conduct, 15. Occupational Health and Safety, in so doing compromised safety of staff, patients and visitors. 2. It is alleged that on 21 August 2002 at 10:10pm you left the premises of Blacktown Hospital in the company of another security office (sic) in a hospital vehicle without authority and remained off campus until 10:20pm. It is further alleged that you did not record this absence in the occurrence log, nor in the motor vehicle log sheets. If this allegation were true, it would appear that you have disobeyed previous instructions concerning absence from the hospital campus, proper documentation of the occurrence log and motor vehicle running sheets. If true it would appear that you have, in addition, breached the Area Code of Conduct specifically; 1.1 Unacceptable behaviour - 1.1(i) theft or dishonesty, 1.1(vi) failure to ensure that all health service activities are conducted in a safe, responsible and effective manner, 1.1(x) being absent from work without satisfactory explanation, 1.1(xi) failure to obey lawful direction given by an authorised person, 1.1(xii) failure to work within the Area's policies and procedures, 1.3 Performance of Duties, 8. Use of official resources, 14. Corrupt Conduct and reporting corrupt conduct, 15. Occupational Health and Safety, in so doing compromised safety of staff, patients and visitors 3. It is alleged that on 21 August 2002 at 11:15pm, you conducted patrols on your own. If this allegation is true, you failed to adhere to instructions that patrols are to be conducted by officers in pairs only. Again, if true it would appear that you have breached the Area Code of Conduct specifically; 1.1 Unacceptable behaviour - 1.1(vi) failure to ensure that all health service activities are conducted in a safe, responsible and effective manner, 1.1(xi) failure to obey lawful direction given by an authorised person, 1.1(xii) failure to work within the Area's policies and procedures, 15. Occupational Health and Safety. These matters are regarded as most serious, and if found to be true would warrant dismissal and therefore require investigation. Accordingly you are required to attend a disciplinary interview in the office of the Director of Corporate Services, Blacktown Hospital campus at 3:30pm, Friday 13 September 2002. The investigation will be conducted by Mr Paul Potts, Director of Corporate Services, BMDH and Mr Chris Brown, Area Deputy Director of Human Resources (Operations). You may, if you wish, have a Union representative or another staff member present at this interview as an observer. The presence of the observer will be a matter for you to arrange. Until this investigation is complete you should not return to duty and with the exception of your attendance at the abovementioned interview, you should not return to the hospital premises without expressed authority, nor should these matters be discussed with other staff. You of course will continue to be paid during the course of this investigation. (This letter refers to Blacktown Hospital. It was in fact Mount Druitt Hospital).

[396]

379 I turn then to the relevant principles and legislation. The general principles applying to the waiver of time limits for the filing of civil claims are helpfully discussed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case McHugh, J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

[401]

384 The Full Bench went on to say at Para 12-13: Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgment of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

[494]

465 While I can understand how the conspiracy theory may have been genuinely believed, I regard the respondent's knowing involvement in such a conspiracy as implausible and highly unlikely. There is no doubt that Mr Brown and Mr Bright relied exclusively on the agent's notes and the video, even in the face of the absolute denial of the allegations by some of the officers and claims that the video had been fabricated. I am left to speculate that the respondent may well have been duped by an unswerving belief in the veracity of the agent's evidence. However, it behoves me to say that there were some serious and disturbing discrepancies in the video evidence which, as the case progressed, demonstrated that the allegations against the applicants could not stand up to objective scrutiny. This evidence included the following: 1. Two videos were produced by the investigators described as the long and short versions. Mr Brown, the senior officer conducting the investigation said that, at the time of the investigation, he only viewed the short one and wasn't aware of the longer version. This was an extraordinary admission. Even more remarkable, Mr Bright the senior officer who made the final decision to dismiss the applicants, did not see either video. Yet Mr Bright was aware of the strenuous denials of Mr Potlocka and Mr Staal that they were not at a Mobil garage on 15 July. 2. There are two versions of the Websters final report dated 27 August 2002 containing two versions of the agents' contemporaneous notes. See Ex "C" Annexure E and Ex "Z". Mr Mailey and Mr Lingard could not explain how this had come about. 3. There were unexplained gaps in the videotapes at crucial times. Indeed, some of the alleged incidents weren't even videoed at all. The video of 15 July 2002 does not show Mr Staal at the Mobil garage. Nor does it show the security vehicle arriving or leaving the garage. It shows Mr Potlocka standing outside the garage office. Yet in respect to the Domino's Pizza incident, the video shows the security vehicle arriving. One might reasonably question why the agents chose not to film the Mobil garage incident in full. It leads to a real inference that the 15 July incident did not happen in the way the agents had recorded and Mr Staal may have been videoed there on a different day just as he had described. 4. The agents' contemporaneous notes of 15 July refer to two officers, Mr Potlocka and Mr Staal leaving in a car at 1.45am and arriving at a Mobil garage at 1.55am. The video evidence shows the car is stationary at the garage at 1.49am. This is not mentioned in the agent's report. Mr Brown agreed the notes " could be wrong ". In view of the above observations, I cannot see how it could be sustained that the agents' " contemporaneous notes were conclusive evidence of the allegations ." 5. Mr Bright relied on a statutory declaration from agent Colgan concerning his inquiries at the Mobil garage. Mr Colgan described the incident as occurring on 16 July when in fact, it was 15 July. Mr Bright conceded that had he noticed the discrepancy, he would have made further inquiries. 6. The surveillance reports disclosed that two of the applicants had attended and entered the rear of Domino's Pizza Restaurant on 26 July 2002. There is only one entry to the shop - from the front. 7. The surveillance report says that the two applicants were followed to Domino's Pizza and they were observed leaving with a pizza. When the tape was viewed in Court, it was seen to be impossible that their car was followed, as it clearly shows the car arriving from a side angle. More importantly, however, the applicants have no pizza in their hands when they leave. In viewing the video it seems they are talking to two of the salespersons for far longer than simply ordering a pizza. They leave before there would have been time to cook a pizza. No money appears to change hands. In other words this evidence leads to the inescapable conclusion that the applicants' claim that they had received a suspicious phone call designed to entice then off site was precisely what happened. In such circumstances, I have very serious concerns that a person or persons unknown were attempting to entrap the applicants. 8. On 26 July, Mr Tupene and Mr Nagy were alleged to have left the hospital, travel slowly along Main Street, arrive at Domino's Pizza, pick up a pizza and return to the hospital - all in the space of ten minutes. I cannot imagine how this could feasibly be possible.

[509]

478 In my view, the manner in which the allegations were crafted were in the words of the Full Bench in Humphries such as to deny the applicants "with such information as would reasonably enable the employee to understand and respond to the allegations made against" (them). However, that was far from the full extent of procedural deficiencies which were evidenced in this case. I highlight a number of others. 1. It seems to me that the respondent applied a "one size fits all" approach when determining the allegations against the applicants. Firstly, for example, it was curious that in some instances the letters sent to particular individuals incorrectly named the hospital where the security officer worked (Mr Staal and Mr Harpers' letters referred to Blacktown, when it was in fact Mt Druitt). It was as if a template letter had been carelessly and hastily cobbled together. 2. Mr Brown found that only Mr Prosser had a " plausible explanation " for his absences, but Mr Brown said it was not consistent with the other evidence. Mr Prosser received the same treatment as all the dismissed security officers and received the same penalty. 3. Mr Prosser complained at his interview that a copy of the occurrence log appeared to have been tampered with - a section of the crucial entry had appeared to have been white papered out. He was never shown the original, nor given any explanation for this. 4. Mr Potloka bitterly complained that while he had co-operated with the investigation, this factor had not been taken into account in his case. Again, I think this disclosed that individual circumstances were not considered by the respondent. 5. Some of the applicants faced one allegation, others had two or three and others had allegations unrelated to leaving the campus. Strangely, it seems that despite the vagaries of each individual's circumstances, little, if any consideration was given to these factors. All the applicants were treated exactly the same. 6. There was no record of crucial meetings involving Mr Brown and other of the respondent's officers.

[512]

481 I turn now to some other deficiencies in the investigation. I should say at the outset that I have no doubt that Mr Brown and Mr Bright made their decisions based on flawed and inadequate information. A number of obvious examples will serve to exemplify this conclusion. 1. At the time the allegations were framed, Mr Brown did not know that security officers left the site to do external patrols (see Mr Harper and Mr Prossers' interviews 16 September 2002 and Mr Brown's evidence. 2. After being told that officers had permission to get food while on patrol (see Mr Harper's letter of 24 September 2002 and Mr Potlocka's letter of 10 October 2002), Mr Brown conceded he didn't inquire whether this was an established practice. In my view, this would have been crucial to his understanding of what was happening. If such a practice existed and was condoned by management, the allegations would have fallen away. Mr Brown chose not to find out. His investigation must be tainted by this omission. 3. Mr Potloka named a person called Vera in the staff cafeteria who could verify his whereabouts on 21 August 2002 (the third allegation against him). Mr Brown did not interview this person. He said he didn't do so because it was inconsistent with the evidence he already had. It seems to me that that was the very reason why he ought to have inquired of the named person, who may have had some information relevant to the investigation. Inconsistent evidence required testing. It was unreasonable for Mr Brown not to have done so. 4. Mr Brown chose not to interview other persons who, not only could provide relevant information, but who were in fact the source of the allegations - the surveillance agents. At no time did Mr Brown ever interview the surveillance agents. This was utterly unbelievable. As mentioned earlier, the agents reports contained inconsistent or incomplete accounts of what they had observed. It behoved the investigators to undertake further inquires directly with the agents. 5. Mr Stickens was in the company of a contract employee from Fogel Knight on 28 and 29 July 2002 - the day of the first and second allegations. No inquiry was made of that employee or with the contract company. 6. Neither Mr Brown nor Mr Bright made inquiries of the applicants' claims of suspicious phone calls. This would have been critical to understanding Mr Cook's visit to Domino's on 9 August 2002. Mr Brown and Mr Bright also ignored, or failed to take into account other inconsistencies and incomplete reports from the agents. 1. The allegations against two of the applicants (Mr Potlocka and Mr Harper) were that they both conducted separate foot patrols at the same time on 21 August 2002. The agent's notes observe that only one officer conducted a foot patrol. In other words, both applicants were found guilty of the same allegation based on only one of them being seen. Mr Bright described this as a discrepancy which he hadn't noticed. Such information could not possibly be a correct assessment of the evidentiary case against them. 2. Mr Stickens was accused of using Ms Shaw's computer without authorisation late at night. Leaving aside whether Mr Stickens could have been observed doing so, two officers were on duty at the time. The agent identified a dark haired security officer wearing a black jacket. The agent was on the grass verge at night looking up to the mid level floor. The agent did not identify whether it was Mr Stickens or Mr Prosser. Mr Brown made the identification that it was Mr Stickens. I cannot accept from the vague description of the agent, that Mr Brown could be positively certain it was Mr Stickens or indeed any security officer. 3. There were allegations that Mr Cook was off site from 1.20 to 1.35 am on 10 August. He said he was at the helipad at 1.30 to 3.00am. Mr Brown failed to make any inquiries of the helicopter movements on that day. 4. Mr Bright gave evidence that he did not turn his mind to whether the award was being complied with in respect to the taking of meal breaks. 5. Mr Potlocka told Mr Bright in a letter dated 24 September 2002 that previous senior officers, Shane Ware and Charlie Zammitt had said it was OK to get something to eat late at night on the way back from patrol. Mr Bright did not speak to either of these persons. 6. A subsequent statutory declaration sought by Mr Bright from Mr Colgan (Ex "X") referred to the incidents involving Mr Staal and Mr Potlocka at the Mobil garage as occurring on Tuesday 16 July 2002. The date was in fact 15 July. Mr Bright said he did not query the discrepancy.

[517]

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. (Emphasis added.) That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and by another Full Bench (Hungerford and Schmidt JJ and Murphy C) in Oswald v New South Wales Police Service (unreported, NSW Industrial Relations Commission, IRC97/4130, 11 March 1999, pp50-51). It is appropriate to apply it again in the instant case.

[523]

491 The Industrial Relations Commission orders: (1) Pursuant to s89(1) of the Industrial Relations Act 1996 that the respondent, Western Sydney Area Health Service, shall reinstate Allan Staal, Matu Tupene, Leslie William Nagy, Keith Prosser, Warren James Cook, Ronald Harper, Warren Stickens, Richard Potlocka and Paul Gordon Mitchell to their former positions on terms no less favourable to those which would have applied had the applicants not been dismissed in September and November 2002. (2) The reinstatement of the applicants shall be effected no later than 14 days from today. (3) Pursuant to s89(4) of the Industrial Relations Act 1996, that the applicants' periods of service be treated as not to have been broken by their dismissals. (4) Pursuant to s89(3) and (6) of the Industrial Relations Act 1996, the respondent Western Sydney Area Health Service shall pay to the applicants (except Mr Potlocka and Mr Prosser) an amount equivalent to their average weekly earnings from 1 January 2003 to reinstatement. (5) Pursuant to s89(3) and (6) of the Industrial Relations Act 1996, the respondent Western Sydney Area Health Service shall pay to Mr Potlocka and Mr Prosser an amount equivalent to their average weekly earnings from 11 November 2002 to reinstatement. (6) Average weekly earning shall be calculated by reference to an agreed average of earnings inclusive of shift penalty payments. (7) The amounts in orders (4) and (5) shall be paid within 21 days of today. (8) Liberty to apply is available to either party should there be any disagreement as to the implementation of these orders. (9) The proceedings in Matters IRC02/6816, IRC02/6817, IRC02/6818, IRC02/7232, IRC02/7233, IRC02/7234, IRC02/7235, IRC02/7236 and IRC02/7237 are otherwise concluded. (10) The Commission further directs the Registrar to forward a copy of this decision to the Health Administration Corporation, the Attorney General's Department and Department of Industrial Relations in respect to: 1) The procedure adopted by the respondent in engaging Websters to undertake surveillance of the officers; and 2) The failure of the respondent to comply with, or ensure compliance with the terms of the Magistrate's authorisation of covert video surveillance dated 21 August 2002, in accordance with the Workplace Video Surveillance Act 1998. (11) Any application for costs shall be made by way of notice of motion within 21 days.