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 (10 March 2004)

Last Updated: 11 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

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

FILE NUMBER(S): 6816, 6817, 6818, 7232, 7233, 7234, 7235, 7236, 7237

HEARING DATE(S): 02/07/2003, 03/07/2003, 04/07/2003, 07/07/2003, 08/07/2003, 09/07/2003, 10/07/2003, 11/07/2003, 09/09/2003, 10/09/2003, 22/10/2003, 23/10/2003, 03/12/2003, 10/12/2003, 19/12/2003

DECISION DATE: 10/03/2004

PARTIES:

APPLICANTS

Allan Staal

Matu Tupene

Health and Research Employees' Association, on behalf of

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

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANTS

Ms C Howell of Counsel (for Mr A Staal and Mr M Tupene)

SOLICITOR

Mr J Hendry, Geoffrey Edwards & Co

UNION

Mr D Ravlich, Health and Research Employees' Association (for Messrs L Nagy, K Prosser, W Cook, R Harper, W Stickens, R Potlocka and P Mitchell)

INTERVENOR

Ms N Carl, Labor Council of New South Wales

RESPONDENT

Mr P Newall of Counsel

Instructed by Mr C Brown of Western Sydney Area Health Service

CASES CITED: 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

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

Jones v Dunkel (1959) 101 CLR 298

Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285

Martin v Nominal Defendant (1957) 74 WN (NSW) 121

North v Television Corporation Ltd (1976) 11 ALR

Oswald v NSW Police Service (1999) 90 IR 42

Outboard World Ltd v Muir (1993) 51 IR 167

Paris v Bankstown City Council [1999] NSWIRComm 10

Parker v Capitol Painters & Decorators Pty Ltd, (1996) 68 IR 100

Police Association of New South Wales, on behalf of Adam Tregonning and New South Wales Police Service, (unreported, Sams DP, IRC99/2799, 8 March 2000)

Police Service of New South Wales v Batton (2000) 98 IR 154

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154

Roberts v Prince Alfred College (1979) 46 SAIR 598

Standley v Electronics Boutique Pty Ltd (unreported, Sams DP, IRC99/4516, 18 March 1999)

St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC97/5932, 28 May 1998)

Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46

Ward v Mobile Innovations [2002] NSWIRComm 287

Wilson v Department of Education and Training (2000) 100 IR 1

AWARDS:

Health Employees Conditions of Employment (State) Award 307 IG 88

LEGISLATION CITED: Industrial Relations Act 1996

Workplace Video Surveillance Act 1998

Occupational Health and Safety Act 1983

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

10 March 2004

Matter No IRC02/6816

Allan Staal And Western Sydney Area Health Service

Matter No IRC02/6817

Matu Tupene And Western Sydney Area Health Service

Applications re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996

Matter No IRC02/6818

Health and Research Employees' Association of New South Wales (on behalf of Leslie William Nagy) and Western Sydney Area Health Service

Matter No IRC02/7232

Health and Research Employees' Association of New South Wales (on behalf of Keith Prosser) and Western Sydney Area Health Service

Matter No IRC02/7233

Health and Research Employees' Association of New South Wales (on behalf of Warren James Cook) and Western Sydney Area Health Service

Matter No IRC02/7234

Health and Research Employees' Association of New South Wales (on behalf of Ronald Harper) and Western Sydney Area Health Service

Matter No IRC02/7235

Health and Research Employees' Association of New South Wales (on behalf of Warren Stickens) and Western Sydney Area Health Service

Matter No IRC02/7236

Health and Research Employees' Association of New South Wales (on behalf of Richard Potlocka) and Western Sydney Area Health Service

Matter No IRC02/7237

Health and Research Employees' Association of New South Wales (on behalf of Paul Gordon Mitchell) and Western Sydney Area Health Service

Applications by the Health and Research Employees' Association of New South Wales re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996

DECISION

[2004] NSWIRComm 27

1 This decision determines applications filed by nine dismissed security officers ('the applicants') of the Western Sydney Area Health Service ('the respondent') who were employed at the Blacktown and Mt Druitt Hospitals. Reinstatement was sought by all the applicants pursuant to the provisions of Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act').

2 Six of the applicants were dismissed for misconduct and three of the applicants resigned after they had been advised of a recommendation of dismissal for misconduct. Shortly put, it was alleged that the applicants had left the hospital grounds on various occasions, without notification or authorisation, thereby leaving the hospital without security. The specifics of the allegations against each applicant will be outlined later.

3 The resignations of the applicants (Messrs Harper, Cook and Mitchell) raised the jurisdictional question of whether the employees had resigned of their own accord, or whether they had been constructively dismissed. I shall return to this question later.

4 Six of the applications (Messrs Cook, Prosser, Mitchell, Stickens, Potlocka and Harper) were filed outside the 21 day limit (19 December 2002) prescribed by s85(1) of the Act, thereby requiring the Commission to consider exercising its discretion under s85(3) to allow the applications to proceed.

5 Thus, only three of the applicants (Messrs Nagy, Tupene and Staal) were free from jurisdictional challenge to their applications proceeding on their merits. While there was an application by the respondent on 14 February 2003 for the jurisdictional matters to be determined on a preliminary basis, the Commission said at the time:

Unless there is a formal application relating to issues being determined separately from the substantive case, my preliminary view is they should be dealt with at the same time.

No formal application was received and the Commission determined that the jurisdictional and merit arguments be heard together.

6 Attempts were made to conciliate the applicants' claims on 14 February 2003. At that time, Mr D Ravlich from the Health and Research Employees' Association (now the Health Services Union) ('the Union') represented seven of the applicants and Mr J Hendry (Solicitor) represented applicants, Mr Staal and Mr Tupene. Mr C Brown appeared for the respondent. As the conciliation conferences proved unsuccessful, the Commission made a finding pursuant to s87 of the Act and issued directions in preparation for the arbitration of the claims. These directions were subsequently amended at a hearing on 29 May 2003.

7 At the commencement of the hearing the Labor Council of New South Wales sought leave to intervene in the proceedings pursuant to s167(3) of the Act in order to put submissions on the use of covert video surveillance in the workplace. Leave was granted subject to the Council's intervention being limited to putting submissions at the appropriate time.

8 The Commission also took the unusual, but helpful step of inspecting the worksite at Blacktown and Mt Druitt hospital premises in order to observe firsthand the distances involved for security officers in patrolling the sites and travelling to the other locations mentioned during the proceedings.

9 For convenience, I provide the following background details for each applicant:

Name and (Age)

Date of commencement

Date of termination

Reason for Termination

Date of s84 application

Days out of time

Warren James Cook (39)

6 April 1998

30 Sept 2002

Resigned

19 Dec 2002

59

Keith Prosser (28)

27 July 1999

11 Nov 2002

Dismissed

19 Dec 2002

17

Leslie William Nagy (N/A)

4 July 1997

11 Nov 2002

Dismissed

29 Nov 2002

-

Paul Gordon Mitchell (44)

15 June 1998

27 Sept 2002

Resigned

19 Dec 2002

62

Warren Stickens (48)

8 May 2000

11 Nov 2002

Dismissed

19 Dec 2002

17

Richard Potlocka (37)

31 July 2000

11 Nov 2002

Dismissed

19 Dec 2002

17

Ronald Harper (56)

2 March 1997

29 Sept 2002

Resigned

19 Dec 2002

16

Matu Tupene (42)

June 1999

11 Nov 2002

Dismissed

29 Nov 2002

-

Allen Staal (39)

4 Jan 2000

11 Nov 2002

Dismissed

29 Nov 2002

-

A list of the duties of hospital security officers is annexed to this decision as annexure A.

THE EVIDENCE

10 On 3 July 2003, the Commission made an order that, to the extent that is relevant, the evidence in one matter shall also be the evidence in all the matters.

11 Apart from specific dates, times and locations all the allegations against the applicants and the policies they were alleged to have breached, were in relatively identical terms. However, Mr Potlocka and Mr Harper were also accused of working alone contrary to policy. Mr Stickens was also alleged to have been in the office of the Deputy Director Corporate Services, Ms Susan Shaw and to have accessed her computer without authority.

12 Similarly, the letters to the applicants and recommendations made following the disciplinary proceedings were cast in relatively like terms. In dealing with the large bulk of the documentary evidence, much of which was repetitive, I propose to highlight those areas of differentiation between the respective applicants' cases. I do not propose however, to reproduce in this decision all the tendered documentary material. Documents relating to Mr Potlocka's dismissal will be sufficient to demonstrate the background to each of the applicants' dismissals.

13 Mr Potlocka's evidence was that he had never been the subject of any formal or informal disciplinary action while employed by the respondent. He said that when he commenced employment he had a two to three hour induction with the other security officers. The main training process involved learning on the job and relying on the experience of other officers.

14 Mr Potlocka deposed that it was his practice to pick up a meal from McDonalds, Red Rooster or the local service station whilst on patrol to the Mount Druitt polyclinic - a hospital facility not on the main campus of the hospital. These locations were within half a kilometre of the hospital. He would eat on the hospital grounds. This practice had developed because there was no formal meal break during the security officers' twelve hour shifts. The security officers were required to be available at all times and be ready to respond to any request for assistance. Whilst on patrol, Mr Potlocka carried a radio, pager, mobile phone, baton, torch, keys and first aid kit. He agreed that the essential duties of a security officer were to provide for the safety of staff, patients and visitors and to protect hospital property and facilities. He accepted that, at all times, there must be two officers working together on duty.

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).

16 Mr Potlocka did not attend the interview on 13 September 2002, following the intervention of the Union. The Union had requested further information be provided to the applicants. As a result, a second letter was sent to Mr Potlocka on 21 September 2002. It attached copies of the motor vehicle running sheets and security log for the relevant periods relating to the allegations. Also included were two memoranda from Ms Susan Shaw (Acting) Deputy Director of Corporate Services, relating to a prohibition on working alone (dated 3 July 2000) and procedures for the use of motor vehicles (dated 3 February 2000) and two memoranda from David Tape (Security Manager) regarding vehicle allocation on night patrol (dated 8 June 2000) and vehicle usage and recording (dated 9 December 1999). Mr Potlocka could not recall if he had seen these memoranda. He observed they all predated the commencement of his employment (31 July 2000).

17 It was Mr Potlocka's evidence that he was not aware that he was required to fill out the vehicle running sheet for every journey undertaken while on shift. He accepted that if he was not recorded as being off site, it was assumed he was on site. He also conceded that if he was off site, his absence could give rise to a dangerous situation.

18 Mr Potlocka had no doubt that the respondent viewed the allegations very seriously. However, he had taken personal offence that his professionalism, honesty and integrity were questioned. He strenuously denied that he was corrupt. He noted that he still holds a security licence and has never been charged with any criminal offence.

19 A rescheduled disciplinary interview was conducted on 18 September with Mr Christopher Brown (Deputy Director, Human Resources (Operations)) and Mr Paul Potts (Director of Corporate Services). Mr Steve Lindsell acted as Mr Potlocka's witness. A transcript of this interview (and all the interviews) was tendered in evidence.

20 In oral evidence, Mr Potlocka said that all of the security officers had spoken amongst themselves about the letters they had received. However, he couldn't recall if they had discussed how they would handle the interviews. He denied a suggestion that the officers had agreed not to admit going off site to buy a meal.

21 During his testimony, Mr Potlocka was taken to the transcript of his interview. He had not agreed with the allegations and said he couldn't have been off site for half an hour on 15 July 2002. However, he acknowledged he may have got something to eat while on patrol. Mr Potlocka said he did not give this explanation during the interview because he couldn't remember what had occurred two months earlier. He now agreed it was a mistake not to have given this explanation to Mr Brown.

22 Mr Potlocka agreed that he did not tell Mr Brown that he could have been at the Mobil garage on Luxford Road to get some food, which was only half a kilometre away. However, no specifics had been given at the initial interview. It was much later that he was told about the Mobil garage.

23 As to conducting a foot patrol on his own on 21 August 2002 (third allegation), Mr Potlocka said that his partner, Mr Harper, had gone to the toilet. Mr Potlocka claimed he had either stayed in the staff car park or he may have gone for a cigarette.

24 On 23 September 2002, Mr Potlocka received correspondence from the respondent advising him that the allegations against him had been proven and a recommendation would go forward that he be summarily dismissed. He was invited to respond in writing. He did so in some detail on 24 September and did not deny the allegations.

25 In oral evidence, Mr Potlocka reconciled his acceptance of the allegations to Mr Adrian Bright, Director, Corporate Services with his original denials, by saying that he "was not presented with the specific allegations and found it very difficult to recall what I would have been doing in a half hour time frame some two months ago." He refuted a suggestion that he was seeking to cover his tracks. He observed that even the log sheets disclosed that he was on an external patrol on 15 July 2002.

26 Mr Potlocka said that by this time he started to feel that the "writing was on the wall for my future." He received a further letter from the respondent dated 9 October 2002. This letter attached contemporaneous notes from the surveillance agents of the Websters Group and a photo in respect to the first allegation of 15 July 2002. He was invited to respond and did so.

27 On 22 October 2002, Mr Potlocka received a further letter from Mr Brown which confirmed the recommendation that he be dismissed. He was invited to put any matter in mitigation. He did so in some detail. Mr Potlocka claimed he was treated unfairly because, whereas he had co-operated with the investigation, other security officers had been "hostile, unco-operative and totally unresponsive." (He later said "hostile" was the wrong word to have used).

28 Mr Potlocka also accused the respondent of corruption. In cross examination, he said he believed the surveillance agents' video had been manipulated. He had obtained statutory declarations from the service station console operators, to prove that he was not at the Mobil garage on the day it was alleged.

29 Mr Potlocka claimed that he had spoken to Mr Bright on 23 October. Mr Bright had told him that the investigation and the dismissals related to the security officers' ongoing rejection of operational changes to the security department. Mr Potlocka took this to mean the introduction of a new rostering system. Mr Potlocka said he was absolutely flabbergasted by Mr Bright's comments and told his wife. He said "she couldn't believe how low they (the respondent) stooped." Mr Bright denied having such a conversation with Mr Potlocka in those terms or anything resembling those terms. He made a file note at the time of the conversation. However, Mr Potlocka believed that Mr Bright resiled from this conversation to cover himself from being sacked. In oral evidence, Mr Potlocka conceded he had not detailed the full extent of this alleged conversation with Mr Bright. However, I do not find it necessary to make a finding on this conflict of evidence.

30 Mr Potlocka agreed that at all relevant times he had sought advice from, and relied upon the Union, to represent him. However, he claimed he did not know at the time his application for unfair dismissal was filed, until the day he gave evidence in the Commision, that it was 'out of time'.

31 Mr Potlocka obtained security work in September 2002 and now works as a security supervisor for Greenacre Properties. Nevertheless, Mr Potlocka sought reinstatement to his former position.

32 Mr Warren Stickens has had twenty years' experience in the security industry. His evidence was that he had never been instructed or disciplined regarding the respondent's policies in relation to incident reports, daily occurrence sheets and running sheets. However, he conceded he had previously been dismissed and subsequently reinstated by the respondent on an unrelated matter. He had also received a formal warning in July 2002 for aggressive conduct.

33 Mr Stickens deposed that it had been his practice to occasionally order meals from the local Chinese restaurant and collect the meal while on patrol with his partner. He may have done this on a dozen occasions during his employment. He would also on occasion order pizzas to be delivered. Meals were obtained off site because there was nowhere on campus to obtain a meal after 7.00pm. No one had ever mentioned any difficulty with this practice. Mr Stickens agreed that he did not give this explanation at his disciplinary interview. In oral evidence, he denied that he and the other officers did not admit to the practice because they knew it was wrong.

34 Mr Stickens agreed that his duties involved providing for the safety of staff, patients and visitors and to protect property. Two officers must be on duty at all times. He also agreed that security officers must record going off site in the occurrence logbook and fill out the vehicle running sheet.

35 On 9 September 2002, Mr Stickens was informed he was stood down pending an investigation into allegations of misconduct. Mr Stickens faced four allegations - three of being off site on 28 July, 29 July and 22 August for 14 minutes, 25 minutes and 29 minutes respectively. The fourth allegation was that Mr Stickens was in Ms Shaw's office from 9.45pm to 9.58pm on 22 August, attempting to access her computer.

36 Mr Stickens agreed he had not recorded his absences in the occurrence log or on the vehicle running sheet. He had said in the disciplinary interview that he disagreed with each of the allegations. He had asked to see what evidence the respondent had against him. In oral evidence, Mr Stickens said he had not discussed this response with the other dismissed officers.

37 Mr Stickens was subsequently provided with the respondent's disciplinary policy, vehicle running sheets, log records, the transcript of his interview and the surveillance agents' notes. He understood that the matters were very serious. He agreed that he had an opportunity to put anything he wished in mitigation.

38 On 9 October, Mr Stickens was invited to respond to the allegations. He did so on 12 October and again requested what evidence the respondent had to prove the allegations. In oral evidence, Mr Stickens agreed the employer had a right to ask what he was doing while being paid to be at work and that he was obliged to give a straight answer.

39 On 22 October, Mr Stickens received the recommendation of his dismissal. He was invited to respond before a final decision was made. He did so on 27 October pointing out discrepancies in the surveillance agents' notes and requesting the video evidence.

40 During his testimony, Mr Stickens was shown the agent's surveillance notes. He agreed that he and his partner picked up a Chinese meal on 28 July and 22 August. The Chinese restaurant was three to four minutes away. He claimed he had never driven past the Ford dealership on Main Street. However, he said security officers would routinely go off site in the hospital vehicle down Marcel Crescent to check the car parks, community health centre, methadone clinic and ambulance station. The Chinese restaurant was on the route.

41 Mr Stickens denied the allegation that he entered Ms Shaw's office on 22 August. However, he agreed that there had been some ongoing conflict between some of the security officers and Ms Shaw.

42 Mr Stickens responded to Mr Lingard's evidence concerning the allegations of cash discrepancies in the hospital car parks. He said he had never had access to the cash collection boxes for the car parks. His duty was to escort the cashier.

43 Mr Stickens deposed that he had spoken to the other security officers before and after his dismissal about the allegations. Mr Stickens claimed he had not known his application for unfair dismissal was filed 'out of time'. At all times, he had relied on advice and assistance from the Union and believed the Union was handling the matter.

44 Mr Stickens commenced employment as a security officer with Portfolio Security in November 2002.

45 Mr Warren Cook has been employed in the security industry since 1988. Although originally employed at Westmead Hospital, he transferred to Blacktown in June 2002 because it was closer to home and he preferred the 12 hour shifts. During his employment with the respondent, Mr Cook said he received three excellent performance appraisals.

46 Mr Cook said he had not been shown any of Blacktown hospital's policies and had received no formal induction. Other officers had showed him around the hospital. Mr Cook explained that patrols along the hospital fence line would occur maybe once or twice a night. The vehicle would travel at a speed of 5 to 10 kilometres per hour to check the fence for damage.

47 Mr Cook said his duties at Blacktown were similar to Westmead. Security Officers there had external patrols to the Parramatta campus, the High Street Youth Centre, Castle Hill Community Health Centre and Baulkham Hills early childhood centre.

48 At Westmead Hospital security staff were rostered off for meals. However, this was not possible at Blacktown. Mr Cook said that on occasions he would duck around the corner while on patrol of Marcel Crescent to pick up a pre- ordered Chinese meal.

49 On 9 September 2002, Mr Cook was informed by letter from Mr Lingard that he had been stood down pending an investigation into allegations of serious misconduct. Mr Cook faced three allegations - that he was off site on 9 August, 10 August and 24 August for 15 minutes, 15 minutes and 17 minutes respectively and that the absences were not recorded in the occurrence log or the vehicle running sheet.

50 Mr Cook said that in respect to the second allegation he was attending the hospital helipad from 1.30 to 3.00am that morning. Officers were required to stay with the helicopter while the patient was transferred.

51 As to the third allegation, Mr Cook conceded that he had picked up a Chinese meal when not on patrol. He said it was a common practice to order food and go and collect it. He hadn't been told that he wasn't allowed to do so. Mr Cook confirmed that he didn't give this explanation during his interview. In oral evidence he refuted the suggestion that he didn't say anything because he knew he had done the wrong thing.

52 Mr Cook said that he did go to Domino's Pizza on the night of 9 August with his partner, Mr Jerico Eluna. He claimed they had gone there because they believed they were being set up. Mr Cook said he had received a phone call from a person calling himself "Gary" who said his wife had been helped out by security officers and he wanted to thank them with a couple of free pizzas. Gary said he would be at Domino's until 10.00pm. Mr Cook and Mr Eluna went to Domino's to investigate . The person behind the counter knew no one named Gary. In oral evidence Mr Cook conceded this evidence was not in his affidavit. He denied making it up. In fact, he claimed other officers had also received suspicious phone calls.

53 In oral evidence Mr Cook said he understood the allegations and accepted the respondent took them seriously. On 12 September, Mr Cook received another letter which attached the respondent's policies and procedures and copies of vehicle running sheets and log sheets.

54 In response Mr Cook provided a five page letter seeking further information and evidence of the allegations. The letter was in fact written by a Mr Buckley. Mr Cook said Mr Buckley had assisted the other officers as an independent observer. Mr Cook had also discussed the matter with his wife. He agreed he may have spoken to other officers about whether they had been given any evidence of the allegations.

55 Mr Cook attended a disciplinary interview on 17 September 2002. He again requested evidence of the allegations. Mr Cook agreed he didn't give a straight answer in the disciplinary interview. Mr Cook claimed that not all patrols are recorded in the log book, particularly when patrols are conducted off site. He said it was unclear what off site meant.

56 On 23 September, Mr Cook received an Executive Brief which recommended his dismissal. He said he couldn't believe it. Despite his excellent employment record and having not received any evidence of the allegations against him, he had been sacked. He believed that he had been caught up in the wrong place at the wrong time. He believed the respondent had wanted to get rid of a number of employees who had been resisting change. It was a "witch hunt".

57 As a result of the stress and fatigue he was suffering, and because the "writing was clearly on the wall" he felt he had no other choice but to resign. He had not sought advice from the Union about resigning. He said he and his wife were on medication because of not sleeping and he had been taking things out on his family. He had no confidence in the respondent and could not take it anymore. He gave a week's notice on 23 September.

58 Mr Cook said he handed the resignation letter to Mr Rokebauer, the security manager at the time, but could not explain why the letter was dated 4 November. In any event, Mr Cook filled in a final pay form on 26 September in which he said he resigned for medical reasons "due to rubbish allegation made by WSAHS."

59 In oral evidence, Mr Cook agreed he had sought advice from the Union before and since his resignation. However, he had not put in an unfair dismissal claim until 19 December 2002. He had not been aware of any other employees who had resigned. He had however, attended a meeting with the Union and other security officers.

60 Mr Cook agreed that when he was stood down, he continued to receive full pay for another two weeks. He claimed he was also under financial pressure to resign, but didn't mention this in his resignation letter. He agreed he had not had any reduction in his pay up to the time he had resigned. Mr Cook secured alternative employment on 1 October 2002.

61 Mr Leslie Nagy has had experience in the security industry since 1995 and from July 1997 to November 2002 worked at Blacktown Hospital. He said that during his employment he had never been warned, cautioned or disciplined about the performance of his duties.

62 Mr Nagy claimed he only rarely left the campus to purchase a meal. He worked a twelve hour shift and was required to be on call at all times and it was custom and practice for officers to purchase meals from local takeaway shops.

63 Mr Nagy received his letter suspending him on 10 September 2002. He was required to attend a disciplinary interview on 13 September. He had asked to see what evidence the respondent had against him. He subsequently attended a disciplinary interview on 18 September.

64 Mr Nagy said he could not recall discussing the interview with other dismissed officers. He said he may have discussed it with Mr Buckley. Mr Nagy agreed that the security officers were expected to be on campus at all times, except in circumstances described in the 2000 memo from the Deputy Director of Corporate Services.

65 Mr Nagy faced two allegations: that he was off site (with Mr Tupene) on 26 July for ten minutes at 9.45pm and fifteen minutes from 11.35pm. Mr Nagy agreed that security officers are required to maintain an occurrence log and vehicle running sheets during their shift. However, it was his practice to fill in the running sheet at the start and finish of each shift. He agreed it would be improper to leave the campus for personal reasons. Mr Nagy accepted that he hadn't recorded the absences off site on 26 July in the occurrence log. However, he denied he went to Domino's Pizza at any time on 26 July, or at any other time while on duty.

66 On 12 September Mr Nagy received copies of the respondent's policies and copies of the occurrence log and vehicle running sheets for 26 July. In a five page letter dated 16 September, Mr Nagy requested all evidence in relation to the allegations. Mr Nagy said his letter had been written by Mr Buckley after he and a number of officers had met Mr Buckley at a McDonalds restaurant.

67 Mr Nagy had spoken to the Union about his interview. However, he couldn't recall exactly what was said. He had not discussed how to conduct himself at the interview with the other officers. Mr Nagy claimed that no one had told him not to respond to the allegations.

68 Mr Nagy said that during the interview he had disagreed with the allegations because there were no specifics. He couldn't remember what he had done two months earlier. Mr Nagy agreed he was obliged to give his employer a straight answer.

69 Mr Nagy believed the whole episode was suspicious because the letter he had received on 12 September had not enclosed the documents it said it did. He had refused to accept the documents at the interview. Mr Nagy believed his dismissal was unfair and the investigation process was faulty.

70 Mr Nagy provided a comprehensive reply affidavit which made the following points. The first allegation accused him of being off site for ten minutes at Domino's Pizza and being seen parking the unmarked security vehicle at the rear of the pizza shop. Mr Nagy noted that there was no rear entry to the pizza shop (this was confirmed on the inspection) and it would have been impossible to travel there and back in ten minutes. Mr Nagy claimed that on 26 July he and his colleague received three phone calls inviting them to attend the pizza shop to accept complimentary pizzas. They had declined to do so and requested the pizzas be delivered. This had not happened.

71 On the same day, Mr Nagy had been informed that a knife was lying on the roadway in a gutter adjacent to the staff car park. After he had found the knife and returned to the vehicle, his partner had told him of a strange call from Domino's Pizza. Mr Nagy claimed that both officers returned to the security office and entered the knife incident in the occurrence log and took photos of the knife. However, there was no such entry in the occurrence log. Later that night, during a patrol of the hospital at around 11.35pm, Mr Nagy said that they had noticed a suspicious vehicle. This was why they had been driving slowly in order to identify the make and model of the vehicle.

72 Mr Nagy said that on the following night he was involved in a serious accident and was off work for four weeks. Upon his return, Mr Nagy reported the suspicious events of 26 July to the security manager, Mr Rokebauer, who instructed him and his colleague (Mr Tupene) to write a report about the incident. This was done on 4 September. Mr Nagy refuted the suggestion that the knife incident, the suspicious vehicle and phone calls were reported to cover his movements on 26 July.

73 Moreover, Mr Nagy said he had raised his concerns about the suspicious incidents with Mr Rokebauer by phone while he was on workers' compensation. While he was off work, other security officers had phoned him about their concerns with strange phone calls.

74 Mr Nagy deposed that he was not aware whether any action was taken over this report. However he recalled that another incident after the 5 September had been reported to Blacktown Police concerning a suspicious vehicle. The police inquiry revealed the vehicle was registered interstate. Mr Nagy said he had discussed these matters with his colleagues and found them to be very suspicious.

75 Mr Nagy claimed he had absolutely no faith or confidence in the management of the Area Health Service. He believed Mr Lingard's motives and methods were underhanded. However, he saw no difficulty in working with these managers again. At the time he was dismissed, Mr Nagy had a second casual job and has since found further work.

76 Mr Keith Prosser was employed by the respondent at Auburn Hospital from 1999 and at Blacktown Hospital from 2001. In his three years of employment, he claimed he had never had any warning about his performance.

77 Mr Prosser said it was a common practice for him to collect food during his shift because there were no specific meal breaks during the 12 hour shift. At Auburn Hospital, staff crossed the road to pick up a meal. At Blacktown he had been with other officers when this was done in the vehicle. No one had ever said the practice was not permitted.

78 Mr Prosser referred to an ongoing dispute with management over the 12 hour shifts and the officers' resistance to the changes being proposed by management. He believed this issue led to a "witch hunt" to get rid of the officers who had protested about the changes.

79 Mr Prosser was informed on 9 September that he was suspended. On 12 September he received copies of the disciplinary policy, vehicle running sheet and occurrence logs. Mr Prosser was alleged to have been off site without authority for 29 minutes on 22 August 2002 and not filling in the occurrence log.

80 Mr Prosser agreed that security officers were expected to be on campus at all times. He had not seen the memos which outlined the circumstances when officers are permitted to be off site. Mr Prosser had learnt from the more experienced officers as to what was required. He said it had not been the practice for him to fill in the vehicle running sheet for each journey. It was completed at the beginning and end of the shift as instructed by Mr Rokebauer.

81 Mr Prosser observed that it was alleged in the agent's surveillance notes that he had returned to campus from the Chinese restaurant at 21:07 on the 22 August. However, a still photo provided to him two weeks before the Commission hearing revealed that he was on site at 21:00:52. This was confirmed by the documentary evidence.

82 Mr Prosser responded to the allegations in a letter prepared by Mr Buckley. In his response he sought evidence of the allegations. He and a number of officers had met Mr Buckley at a McDonalds restaurant. Mr Buckley had suggested that he respond by requesting to see the evidence. Mr Prosser claimed he wanted to know where it was said he had gone, so he could respond. He was unsure where he might have been because he could have been getting petrol or on external patrol.

83 Mr Prosser said that he responded to Mr Brown in the interview by indicating he couldn't remember what had happened on the day. He accepted that, as a rule, absences such as getting petrol were recorded. He couldn't understand why his absence on this occasion hadn't been logged. Mr Prosser explained that he had not told Mr Brown about picking up a Chinese meal because as it was common practice, he saw nothing wrong with having done so.

84 On 23 September, Mr Prosser received a letter advising of the recommendation that he be dismissed and inviting his written response. This letter was replaced by another letter of 9 October. Of all the security officers, Mr Prosser's was the only Executive Brief which included this comment:

Mr Prosser's explanation of how he may have left the grounds however plausible is inconsistent with the evidence (my emphasis).

85 Mr Prosser responded in writing on 16 October. He conceded he had not responded by admitting that he was at the Chinese restaurant. However, Mr Prosser believed that the evidence he had been provided with was contradictory. At the time he had felt angry and betrayed. Mr Prosser said he rang Mr Bright and asked how he was expected to respond as he was unsure of what management wanted. He said Mr Bright told him his decision had been made and hung up.

86 Mr Prosser completely rejected the allegations made by Mr Lingard concerning damage to property and harassment of management and threats to other staff. Mr Prosser said that, at no time, did he ever have access to the cash box for the public car parks.

87 After his dismissal, Mr Prosser had spoken to the Union. Later, he had found out his application for unfair dismissal was late. However, he had been told that meetings had been sought with senior health department officials in an effort to resolve the dispute of the dismissals.

88 Mr Prosser secured alternative employment four to six weeks after his dismissal.

89 Mr Ronald Harper commenced security work as a casual at Mt Druitt hospital in February 1997. He transferred to permanent work at Blacktown Hospital in April. In July 2000 he went back to Mt Druitt. During this time he had also worked as a hospital assistant and wardsman. Mr Harper said that during his employment with the respondent he had never been disciplined or questioned in relation to carrying out the respondent's policies and procedures. Moreover Mr Rockebauer had provided a most favourable reference for him on 25 November 2002 - a month after he had resigned.

90 On 9 September 2002 Mr Harper received the letter which informed him of the allegations against him and requiring his attendance at a disciplinary inquiry on 12 September. It was alleged that he was absent from the premises (the allegations said Blacktown but it was in fact Mt Druitt) for 10 minutes on the 21 August, and that on the same shift he conducted a patrol without his partner between 11.15pm and 11.55pm.

91 Mr Harper agreed that security officers were expected to be on campus except when refuelling or on extended patrols. He further agreed that officers were required to maintain an occurrence log and vehicle running sheet. However, these would be completed at the beginning and end of the shift.

92 Mr Harper received details of the allegations on 12 September. It was said that he had driven through the drive-thru at McDonalds with Mr Potlocka. Mr Harper said he had never been at McDonalds because he didn't eat McDonalds food. However, he gave evidence that he had sometimes picked up food and cigarettes for other employees, including hospital employees.

93 Mr Harper attended an interview with Mr Brown and Mr Potts on 18 September. Mr Harper believed that the interview was a waste of time because Mr Brown was unwilling, or unable, to provide him with details of the allegations. Mr Harper said he had even asked "where did I go?" (on 21 August). Mr Harper claimed that there was no way anyone would do a foot patrol alone at Mt Druitt hospital, as it was too dangerous.

94 Mr Harper had explained that officers had to leave the grounds to do patrols of the polyclinic and other external patrols because it wasn't permitted to drive on the grass. He explained further that he may have walked away from his partner if his partner was having a smoke. He may also have been on routine staff car park escort duties. These sometimes take an hour to an hour and a quarter.

95 Mr Harper believed that as far as he was aware he had done nothing wrong. He was also concerned that he may have been followed at work.

96 Mr Harper received another letter on 23 September which recommended his dismissal. He was invited to put anything further in mitigation. He resigned in the next few days without consulting his Union. Mr Harper said that he was stressed and in a panic. As he believed he would be put on base rates during the investigation, he felt he had no option but to resign. He said he mistakenly believed that resignation would spare him further humiliation, anger and stress. However, it didn't and he remained angry over the fact he was unable to properly defend himself from dismissal after five years of unblemished service.

97 Mr Harper agreed that one of the reasons he resigned was to get another job. Mr Harper further agreed that he was suspended on pay for two weeks before he resigned. However, he wasn't sure if his pay was at the base rate. He conceded he had not suffered any financial loss while suspended.

98 After about four weeks Mr Harper secured alternative employment at One Steel BHP. However, he wanted to be reinstated as he liked the job. During his employment he said he hardly ever saw Mr Lingard, Ms Shaw or Mr Potts.

99 Mr Harper said that after he resigned he had consulted a solicitor who had advised him to "stick with the Union". Mr Harper had not known his s84 application had been filed late.

100 Mr Allen Staal has had fourteen and a half years employment as a security officer. He commenced employment at Mt Druitt Hospital on 4 January 2000 and occasionally worked at Blacktown. In referring to his duties, Mr Staal said he learnt how the work was organised from his fellow officers. Mr Staal said there were routine patrols around the perimeter of Mt Druitt Hospital and to the polyclinic a few streets away.

101 Mr Staal said that at no time had he been warned or counselled about any aspect of his work performance or conduct. Mr Staal agreed that the essential function of security officers is to provide for the safety of staff, patients and visitors. Hospital staff look to the officers for their security. Two officers are expected to be on campus at all times except in specific circumstances. Mr Staal claimed he had not previously seen Mr Tape's memos of 9 December 1999 and 8 June 2000 or Ms Shaw's memo of 3 February 2000.

102 Mr Staal deposed that if there were any memoranda circulated about changes in policy or practice, a memo would be circulated and signed for by the officers.

103 Mr Staal faced one allegation - that on 15 July 2002 he and his partner Mr Potlocka, left the premises of Blacktown Hospital at 1.45am (it was in fact Mt Druitt Hospital). It was alleged that he didn't return until 2.15am and that he didn't record the absence in the occurrence log or vehicle running sheets.

104 Mr Staal responded in writing on 15 September 2002. He requested the respondent provide him with evidence of the allegation. He said, Mr Buckley had written the letter. Mr Staal agreed the matter was serious and might result in dismissal. He and other officers had met Mr Buckley at a McDonalds restaurant. Mr Staal said that Mr Buckley had not told him, or other officers, how to conduct themselves at the interview. Mr Staal said he couldn't recall if he had discussed his interview with other officers.

105 Mr Staal attended a disciplinary interview on 17 September. He took Mr Buckley as an observer. Mr Staal agreed he had an opportunity to put whatever he wished during the interview. Mr Staal agreed that he was upset and angry during the interview. He believed he didn’t have to answer the allegation because management had got the name of the hospital wrong.

106 On 23 September Mr Staal received a further letter and the transcript of his interview and Executive Brief. He was invited to put any matter in mitigation. Mr Buckley assisted him to write another letter in which he said he would be seeking remedies at law against Mr Bright and Western Sydney Area Health Service. Mr Staal agreed he did not say anything about the Mobil garage. Mr Staal believed that it wouldn’t have mattered what he said as the decision (to dismiss) had been made.

107 With Mr Buckley's assistance, Mr Staal wrote another letter to Mr Brown on 14 October. He asked for the names of the persons who conducted the investigation and their diaries. He did not explain whether he was off the campus. Mr Staal wrote again to Mr Bright indicating that he believed the evidence had been fabricated. He requested an ICAC investigation. Mr Staal received another letter on 22 October inviting him to put any matters in mitigation.

108 Mr Staal said he had worked a few weeks since his dismissal. He said the allegations against him did not make sense. It was his practice, while on external patrol, to sometimes obtain a meal. No one had ever told him he shouldn't do so. Over nearly three years, he had worked with about nine partners. They would always travel in pairs. He would sometimes pick up food from a service station, seven kilometres from the hospital.

109 Mr Staal said it was not usual to record individual patrols on the vehicle-running sheet or inform management when they did so. It was usual to record the kilometres at the start and finish of every shift. He had not been told this practice was incorrect. At all times he was contactable by phone or radio and except for an alarm at Doonside, he was never more than three to four minutes away.

110 Mr Staal said he did not leave the hospital for thirty minutes on 15 July 2002. He may have left for an external patrol, but not for thirty minutes. He did not go to the Mobil garage. Mr Staal said he was confused during the interview and refused to answer Mr Brown's questions. Mr Staal accepted that the employer was entitled to ask questions about what he was doing and that he was obliged to answer. He had not been "playing games".

111 A video surveillance photo showed Mr Staal at a Mobil garage on the Great Western Highway. Mr Staal said he had no reason to be there on that night. He explained that several weeks earlier, after finishing his shift, he had arranged to meet a person called Peter Thompson from Woolworths about part time work. They were to meet at the Mobil garage. Mr Staal said he waited for about thirty minutes but no one showed up. He had then left his details with the service station operator. However, he did not hear from Mr Thompson. He had tried to contact him at Woolworths, but was unable to.

112 After he received the allegations, Mr Staal returned to the Mobil garage and checked who was on duty that night. Mr Staal obtained a statutory declaration from a Mr Penicick and Ms Ann Shield. Both Mr Penicick and Ms Shield worked at Mobil, Minchinbury and said that they had not seen Mr Staal at the time and day in question. Ms Shield recalled that a man in a security uniform had come in between 6.00 and 7.00pm and asked if someone had been asking for him. He had waited outside for a time. Ms Shield further said she had never worked shifts after midnight.

113 Mr Staal was shown video footage of the incident. Mr Staal confirmed he was in the video at the Mobil garage, Minchinbury which is 3.6 kilometres from Mt Druitt hospital. Mr Staal believed the video was taken about 6.00pm in late June or early July. He observed that he had no utility belt, baton or hand pouch on at the time and had not left them in the car. He had been waiting for Mr Thompson and drove to the garage in his own vehicle on his own.

114 Mr Matu Tupene commenced employment in June 1999 as a casual security officer. Mr Tupene became a full officer in June 2001 and was transferred to Blacktown in late April 2002. He said he learnt how to perform his job through his fellow officers. He had relied on the buddy system as to what behaviour was appropriate. Mr Tupene said he had never received any disciplinary counsellings.

115 Mr Tupene said that, apart from some training pertaining to psychiatric emergency alerts, he had received no formalised training and had received no memos or instructions. He agreed his name was on a distribution list of Mr Tape's memo of 9 October 1999.

116 Mr Tupene faced three allegations of leaving the premises without permission and without recording the absences in the occurrence log - 10 minutes and 15 minutes on 26 July 2002 and 17 minutes on 24 August 2002. Mr Tupene said he was confused and bewildered by the allegations as officers routinely left campus to conduct external patrols. Over time he had done so in the company of as many as eight other officers.

117 Mr Tupene agreed that security officers are expected to be on campus during their shift and provide security for staff, patients, visitors and property. There were occasions when officers were permitted to be off site such as refuelling the vehicle or if a patient had absconded from the hospital.

118 Mr Tupene had asked for more time before attending the disciplinary inquiry. It was rescheduled for 17 September. Mr Tupene was assisted by Mr Buckley to draft a response to the allegations. Mr Staal had referred Mr Buckley to him. Mr Tupene had spoken to Mr Buckley on the phone and met him on two occasions - in his office and at McDonalds. He claimed Mr Buckley had not advised him or the other officers how to handle the interview. In his response Mr Tupene sought more information about the allegations. Mr Tupene agreed that the matters were serious and he risked losing his job. He had discussed the matter with other officers. He had told Mr Nagy that the allegations were a "pack of lies."

119 Mr Tupene attended the disciplinary interview with an observer. Mr Brown read the allegations and asked him if he agreed or disagreed with them. Mr Tupene did not know exactly what he was alleged to have done. However, he agreed he had a chance to respond to the allegations. Mr Tupene wanted Mr Brown "to come clean" and say exactly where he was alleged to have been. He agreed he had been evasive with Mr Brown - but, he said, Mr Brown had also been evasive. He agreed that the employer had a right to ask him where he had been.

120 Mr Tupene received a further letter which advised of a recommendation to terminate his employment. He was invited to put any mitigating circumstances. He declined to do so as he believed he would not receive a fair and impartial hearing. He believed the whole process had been a "witch hunt." He had been concerned about suspicious phone calls and persons following him. Mr Tupene agreed he did not say anything specifically, in a factual sense, about the allegations. He conceded that at no time in the process did he admit to the employer that he often picked up a meal while on patrol.

121 Mr Tupene responded generally in detail to each of the allegations as follows:

He said that he would routinely leave the hospital campus to patrol the Marcel Community Health Centre - five minutes drive from the hospital. This patrol would occur about three times a shift because it was a known trouble spot. Mr Tupene also carried out external fence patrols. The recording procedure was to type a summary into the computer in the security office. The summary did not record all the details of the areas patrolled.

Mr Tupene said that he did not notify management when going on patrol of Marcel Crescent. The only time officers informed management they were going on patrol was if they intended to refuel the vehicle. This was because the garage was a considerable distance from the hospital.

122 On external patrols, Mr Tupene said he was contactable by telephone, pager and two-way radio. He highlighted one occasion when he received an alert while on patrol and attended within three minutes. He said that within the campus it might take four to five minutes to attend an incident depending on location, time of evening and traffic. Sometimes an officer is paged while already attending another incident. In these circumstances the police would be called. He claimed that at all times when answering an alarm or duress call, his response has been prompt.

123 It was alleged that on 26 July at 21:45 Mr Tupene and Mr Nagy went to Domino's Pizza. Mr Tupene denied doing so at any time. He said the Domino's Pizza was ten minutes (one way) and three kilometres from the campus. There was no video evidence of their attendance at Domino's and there was no rear entry to Domino's as claimed by the surveillance agents.

124 Mr Tupene claimed that on the night in question, at around 21:15, a member of staff had informed him and Mr Nagy that a large knife had been found on the walkway in front of the hospital. At around 21:30, Mr Tupene said he received a phone call on the security mobile phone from a person claiming to be David. This person had said he wanted to thank the security officers for helping his wife some days earlier. To show his appreciation he wanted to give them free pizzas. Mr Tupene said the person was insisting on them going to Domino's to collect the pizzas. Mr Tupene told him they could not leave the campus. Mr Tupene ended the call. He and Mr Nagy entered the knife incident in the occurrence log and took photos of the knife. After doing so, Mr Tupene said that he and Mr Nagy conducted an external patrol. However, he had not recorded it in the occurrence log.

125 Mr Tupene claimed that around 22:30 and 23:00 he received two further calls from the person David who asked them if they were coming to Domino's. Mr Tupene said he became suspicious and told the person to deliver the pizzas to the hospital. David agreed to do so. However, no one ever arrived.

126 The second allegation was that Mr Tupene and Mr Nagy left the hospital on the same night, drove past the Ford dealership on Main Street and returned fifteen minutes later.

127 Mr Tupene explained that he and Mr Nagy were very suspicious about the earlier phone calls and believed someone may have been trying to entice them off the site in order to engage in some criminal activity. They had decided to do an extra long patrol of the grounds, outer buildings, Marcel Crescent and the car parks. During this patrol they noticed two males sitting in a parked car near the Community Centre. Mr Tupene said they drove slowly past the suspicious vehicle and sought to observe the registration plate. They did not approach the persons in the car. They were unable to get the registration number and they then returned to the hospital.

128 The third allegation alleged that Mr Tupene and Mr Cook left the hospital for seventeen minutes on 24 August 2002 to collect a Chinese meal. Mr Tupene deposed that on this occasion, he had noticed a male person in a Ford Falcon car looking up and down the road. The car had driven off when Mr Tupene saw him. Mr Tupene and Mr Nagy then went up to pick up a pre-ordered Chinese meal from the restaurant located two hundred metres from the Marcel Crescent facility. Mr Tupene said he noticed the same person and vehicle parked down the road and realised they were being followed. Mr Tupene said he told Mr Cook to drive up and turn into the next street to see if the vehicle followed them. The vehicle drove past them, past the hospital and then left. Mr Tupene said he filed an incident report about the matter that night.

129 Mr Tupene said that in early September he had learnt that Mr Stickens and Mr Cook had also received calls asking them to go to Domino's to pick up free pizzas. He believed it was appropriate to make a report of his experiences. However, he did not do so until 5 September.

130 Mr Tupene believed that ordering a Chinese meal was acceptable to management and no one had ever told him it was inappropriate. He had done so at least twice a week in the company of his fellow officers, but only when on patrol. Mr Tupene said his own manager had once offered to get him a meal.

131 Mr Tupene claimed he had never seen the memos referred to by the respondent and was unaware of these policies and procedures. He had not been trained in the correct use of the motor vehicle policy. He deposed that it was his practice to record the vehicle speedo at the beginning and end of each shift.

132 Mr Tupene said he and his family had suffered considerable stress and financial hardship from his dismissal. He said that at no time had he, or would he, have abandoned his post. Mr Tupene was unemployed for two and a half months. He now works for Portfile Security. He seeks reinstatement.

133 Mr Paul Mitchell commenced employment at Mt Druitt Hospital where he worked for three years. He then worked at Blacktown Hospital for two years. He said that during his employment with the Area Health Service he was never disciplined about his performance and never spoken to about his ability to carry out the respondent's policies and procedures.

134 Mr Mitchell faced four allegations - that he was off site on two occasions on 10 August, for 17 minutes at 9.37pm and 16 minutes at 10.59pm; an allegation that he was off site on 11 August for 15 minutes and, on the same day, he was separated from his partner for one hour eight minutes.

135 Mr Mitchell agreed that security officers were expected to be on campus at all times to provide security for staff, patients and visitors. He believed he had seen Ms Shaw's and Mr Tape's memos of 1999 and 2000.

136 Mr Mitchell agreed the allegations were serious and he realised at the time he could lose his job. He responded on 16 September with a five page letter prepared with the assistance of Mr Buckley - a friend of one of the other officers. He agreed Mr Buckley had suggested the officers ask the respondent for evidence of the allegations.

137 Mr Mitchell said that due to the twelve hour shifts, it was his common practice to eat on the run. On some occasions, when filling the vehicle with fuel or doing patrols (three or four times a night), he would pick up meals on the journey. He was always in the company of his partner. The Chinese food would be pre-ordered, picked up and eaten on campus. The restaurant was five minutes away. No one ever told him it was wrong to do so. In oral evidence, he said he didn't know why he didn't give Mr Brown this explanation.

138 Mr Mitchell said that authority was not sought or required for doing external patrols. Mr Mitchell explained that entries in the occurrence log were not inconsistent with what he may have been doing on external patrols.

139 Mr Mitchell described tensions with the management when it was proposed to change from twelve to eight hour shifts. This matter had been taken up by the Union.

140 On 12 September 2002 Mr Mitchell received a more detailed letter from the respondent which attached vehicle running sheets and occurrence log reports. Mr Mitchell attended a disciplinary interview with Mr Brown and Mr Potts on 18 September. He had responded to the allegations by asking for evidence to substantiate them. He conceded that he didn't answer the allegations directly and he agreed the respondent had a right to ask about his whereabouts.

141 Mr Mitchell said he did not know why he just didn't tell Mr Brown that he may have been off site on legitimate duty as part of his job. Over the next week, Mr Mitchell said he felt the pressure building both financially and emotionally and that it appeared the respondent was intending to get rid of him.

142 Mr Mitchell believed that having been suspended, his rate of pay would be cut to the base rate. He was worried about this and concerned how he might cope. He believed his pay had been cut. However, in oral evidence he accepted it had not been.

143 On 19 September 2002, Mr Mitchell rang Mr Rokebauer and told him he "had had enough". He felt worn out with worry and felt he had no choice but to resign. The next day he handed Mr Rokebauer a resignation letter giving one week's notice. Mr Mitchell acknowledged that on his termination of duty advice he had ticked the box "Reason for Termination: Own Accord". Mr Mitchell had not sought advice from his Union about resigning and had not informed the Union at the time. He agreed his unfair dismissal application was not lodged until 19 December 2002. He could not recall if he was aware that other dismissed officers had lodged unfair dismissal claims earlier.

144 On 23 September Mr Mitchell had received a letter with an Executive Brief recommending he be dismissed. In cross examination, Mr Mitchell agreed the date of his letter of resignation was 23 September. He could not remember whether he received the respondent's letter of 23 September. However, he said he did not resign because of this letter.

145 Mr Mitchell felt he had no real way to answer the allegations as he had not seen any evidence upon which they were based. He believed he either had to jump or be pushed. He still felt angry at the way he was treated.

146 Mr Mitchell secured casual employment in December 2002.

147 Mr Karl Paul Gladwell worked for the respondent from October 1996 until he left employment in May 2000. He was a security supervisor and for two years he was Acting Manager of the security department.

148 While Mr Gladwell had no personal knowledge of the facts surrounding the applicants' dismissals he had spoken to a number of the officers between November 2002 and March 2003. He agreed that the duties of security officers were to provide security for persons and property. Officers were expected to be on campus at all times, unless directed to leave. Reasons for leaving the campus included refuelling the vehicle, attending to alarms at external locations or even delivering drugs. Mr Gladwell gave evidence concerning the procedure when duress alarms were activated and the policy on security officers working alone.

149 Mr Gladwell deposed that it was custom and practice for security officers to obtain meals whilst performing patrol duties in the vehicle. This had been done with his knowledge and permission, due to the lack of facilities on site and because there were no specified meal breaks. Nevertheless, he accepted that officers were on call at all times.

150 To his knowledge, Mr Gladwell believed the practice continued after the appointment of Mr Tape. At no time was there any written or verbal instruction to cease the practice. He added that no officers were disciplined for lack of performance, dereliction of duty or for not filling out the required paperwork. Mr Gladwell was shown the memos of Mr Tape and said he could not recollect having seen them.

151 Mr Gladwell gave further evidence about the custom and practice. The facilities manager, Mr John Clement would ask, on a regular basis, for an officer to get him some pipe tobacco. Mr Gladwell referred to a particular incident in which Mr Clement had asked if the officers had gone to get something to eat. When Mr Gladwell said no, Mr Clement gave him a twenty-dollar bill and asked for his tobacco to be bought. On other occasions, officers would pick up a pre-ordered meal, including from the Chinese restaurant. This would occur while on routine patrol. He regarded it as an accepted practice, well known to other managers, including Mr Clement and various other nursing managers. Mr Gladwell gave another example of having collected a birthday cake for the Clerical Services Manager.

152 Mr James Hallahan, a former security supervisor, provided a short uncontested affidavit. His evidence dealt with the change of roster to 12 hour shifts in 1995. Officers were to be paid for the full shift and a free meal provided by the cafeteria. He said 12 hour shifts required security officers to be available to respond at all times. This meant taking a meal break was dictated by the workload and when an opportunity arose to do so.

153 Mr Anthony Doyle has had 25 years experience in the security industry; the last eight working as a security officer for Western Sydney Area Health Service at Blacktown Hospital until 18 February 2002. Mr Doyle had been on workers' compensation at the time of the incidents resulting in the applicants' dismissals.

154 Mr Doyle deposed that when he worked twelve hour shifts a meal break was taken when convenient. Occasionally he would obtain food off site in conjunction with refuelling the vehicle. He would do this in the company of his partner. Mr Doyle named a number of his partners, including Mr Nagy and Mr Cook. Mr Doyle said he was never told that obtaining food off campus was not permitted. Mr Doyle said that it was his recollection that Mr Nagy always brought his meal in.

155 Mr Doyle referred to external patrols conducted at the hospital and the practice of filling in the occurrence log each morning. He deposed that if an officer was contacted over an incident, the response time was usually one or two minutes.

156 Mr Terry Tracey is an organiser with the Union where he has worked since 1978. Mr Tracey was the relief organiser for WSAHS during September/October 2002. Mr Tracey said he had worked extensively in the public hospital environment and had gained considerable experience in the area.

157 On 10 September 2002, Mr Tracey was contacted by a number of security officers at Blacktown and Mt Druitt hospitals. Mr Tracey could not recall if he had contact with all the officers. However, the general opinion was that they had very little faith in the process or the likelihood of being reinstated. Mr Tracey believed that the disciplinary letters received by the officers lacked specificity and the necessary information to assist the officers to recall the dates and times when the incidents were said to have occurred.

158 As a result of a meeting with senior officers of the Health Administration Corporation ('HAC') arrangements were made for the relevant occurrence logs and vehicle running sheets to be provided to the officers. This occurred around 12 September.

159 Mr Tracey received feedback from a number of the officers concerning the investigation and information provided on 12 September which included recommendations of dismissal. The briefing also referred to the use of covert surveillance. A further meeting with senior HAC officers was arranged. It was attended by Margaret Coffey (Director, Employee Relations) Mr Nick Gerrand, (Director of Area Human Resources) and Mr Dennis Ravlich from the Union.

160 As a result of this meeting, further correspondence was sent to the officers which contained the surveillance agents' contemporaneous notes.

161 Mr Tracey believed that most of the officers had very little faith that the investigation process would change the recommendation already made. Like them, he shared their anxiety.

Respondent's Evidence

162 Mr Christopher Brown provided affidavit and oral evidence. Mr Brown is the respondent's Deputy Director - Human Resources. With Mr Paul Potts, Mr Brown was requested by Mr Bright to conduct the investigation into the allegation against the applicants. The documentary material annexed to Mr Brown's affidavit has been earlier referred to in the evidence of the applicants. I need not repeat it. Mr Brown's conclusions may be shortly stated; the allegations against all the applicants had been proven and were of a serious nature warranting dismissal. Mr Brown prepared a report to Mr Gerrand and Mr Bright, which recommended all the applicants be dismissed.

163 Mr Brown was subject to extensive cross examination. In his evidence, Mr Brown deposed that his first involvement in these matters was after the surveillance had been undertaken in July and August 2002. He had attended a meeting involving Mr Bernard Deedy, Mr Bright, Mr Lingard and Ms Shaw. He agreed no record was taken of this meeting. Mr Brown had advised that the matters were very serious and should be investigated further. Some time thereafter, Mr Bright asked him to conduct the investigation. Mr Brown accepted that it was his responsibility to be satisfied that serious misconduct had occurred. He did so in each case and communicated his conclusions and all relevant documents to Mr Bright.

164 Mr Brown said he had drafted the first letter to the applicants based on the contemporaneous notes of the surveillance agents and the Websters report of 27 August 2002. He believed there were two or three reports from Websters. Mr Brown also relied on a video described as the "short video". At the time of the investigation he had never seen a longer video of two hours duration and hadn't known it existed.

165 Mr Brown was taken to the terms of the Health Employees Conditions of Employment (State) Award and the meal break provisions of the Award. Mr Brown said he had not known that the applicants were not granted a meal break of 30 to 60 minutes. His understanding was that security officers were allowed meal breaks, but were not permitted to leave the premises. He also believed that there were facilities on site for the preparation of food and meal breaks were taken when convenient. Mr Brown had not known if the officers were granted a break during their shift when they were completely relieved of their duties. However, he understood that officers were required to work 12 hour shifts without any relief from their duties. He said that this arrangement did not give him any particular concerns about occupational health and safety and was not relevant to his investigation of the allegations.

166 Mr Brown was questioned in detail about the specific allegations. He concluded that theft and dishonesty arose because the officers were being paid for time not used for the employer's benefit and they were using the hospital vehicle for personal use. He believed that this could be considered corrupt conduct. Moreover, the applicants had failed to provide security for the hospital by leaving the campus without authority. Mr Brown understood that, on all occasions when leaving the hospital, the security officers were required to advise the Assistant Director of Nursing or some other person in charge. Mr Brown accepted that the evidence disclosed that this was not always the case.

167 Mr Brown understood that specific directions were issued that no officer could leave the campus without authority. However, Mr Brown could not be sure when or in what form the direction had been issued.

168 In respect to the interviews with the officers, Mr Brown agreed he did not inform them of where it was alleged they had been. Mr Brown did not believe this was important, but rather that they had left the hospital without security. However, Mr Brown included the precise details in his Executive Briefs. Mr Brown did not accept that the officers would have been assisted in the interviews by knowing precisely where they were accused of being.

169 Mr Brown was asked about the three allegations against Mr Tupene. He believed that even if only one allegation had been proved, dismissal was justified. Mr Brown was asked about the 26 July 2002 allegation of being off site between 11.35pm and 11.50pm and having not recorded the absence in the occurrence log. Mr Brown believed Mr Tupene had breached the respondent's Code of Conduct concerning theft and dishonesty. Mr Tupene had not been reported to either the Police or the ICAC. Mr Brown did not know, and did not ask, whether Mr Tupene had been on a break at this time. He regarded Mr Tupene as unco-operative.

170 Mr Brown conceded that, even according to the surveillance agents' notes, Mr Tupene and his partner, Mr Nagy, commenced a hospital patrol at 11.45pm. He agreed that the occurrence log also disclosed that the officers were off site and that the times in the log were usually approximate. However, Mr Brown did not know if this entry was related to the allegation. In any event, Mr Brown believed that the officers were concealing the fact that they had left the campus without authority.

171 Mr Brown was referred to the memos of Ms Shaw. He accepted that it was the department's responsibility to ensure these policies were distributed to employees. Mr Brown agreed that, in the interviews with the applicants, he had not asked them if they were aware of, or had seen these policies. However, copies of the policies had later been provided to the applicants. He had also understood from Ms Shaw and Mr Lingard that the applicants were familiar with these policies.

172 Mr Brown accepted that there was no specific memo or directive about leaving the premises to pick up a meal. He also accepted that in many cases the officers' absences were for periods of between 10 and 15 minutes.

173 Mr Brown acknowledged that officers might be conducting routine off site patrols on three or four occasions during a shift. Mr Brown had not known of the practice prior to the interviews. He agreed that Mr Harper might have told him of this during his interview. Mr Brown agreed that Mr Potlocka and Mr Prosser had mentioned in their interviews going off site for external patrols. Mr Brown conceded that he did not make inquiries as to the authorisation process for external patrols.

174 Mr Brown said inquiries were made with the Ford dealership on Main Street, Blacktown as to whether security officers were "moonlighting" for Ford. The inquires disclosed that this allegation had been denied by the Ford dealership. Mr Brown agreed that this allegation was never put to any of the applicants. He also agreed that he didn't test the agent's notes on this matter.

175 Mr Brown was referred to Mr Harper's interview in which he had claimed that there was a tolerated practice of picking up meals while on patrol. This was the first time Mr Brown had known of this practice, but he hadn't considered it in the context of the allegations that officers were off site without authority. Mr Potlocka had also said that officers had permission to pick up meals while on patrol. Mr Brown agreed that he did not make any inquiries as to whether employees were permitted to do so. Mr Brown agreed that officers could be contacted by pager or two-way radio, whether they were off site or somewhere on site.

176 Mr Brown said he relied on the agents' contemporaneous notes and the video as evidence of the officers' whereabouts. He regarded the notes as accurate. While both Mr Potlocka and Mr Staal vehemently denied being at the Mobil garage on the Great Western Highway, Mount Druitt. Mr Brown said he did not take any steps to test the agent's notes against their denials. He did not, at any time, interview the agents. Mr Brown did not inquire of the person who had told the agent that Mr Staal was at the garage. Further, Mr Potlocka obtained statutory declarations from the garage employees and sent them to Mr Bright. Mr Bright had recommended there be further discussions. However, Mr Brown could not recall if these discussions were held. (It appears they were not).

177 Mr Brown conceded that the video evidence did not, at any time, show Mr Potlocka at the garage. It disclosed the vehicle stationary at 1.49am - but no mention of this was in the agent's notes. Mr Brown acknowledged that the photo taken at the garage could have been incorrect.

178 Mr Brown agreed with the assumption that it would be harsh and unjust to dismiss Mr Tupene for collecting a Chinese meal 200 metres from the hospital in circumstances where management had given security officers permission to collect meals while on patrol.

179 Mr Brown was asked about the allegations against Mr Tupene and Mr Nagy concerning Domino's Pizza. Mr Tupene and Mr Nagy both denied being at Domino's on 25 July 2002. There was no video footage of this incident. Mr Brown said he was aware that both Mr Nagy and Mr Tupene claimed to have received strange phone calls trying to persuade them to go to Domino's. Mr Brown had not investigated these claims because they were inconsistent with the agent's notes. Mr Brown was asked why the notes said the officers entered the rear of Domino's Pizza when there was no rear entry. He said he wasn't aware of this.

180 Mr Brown agreed any employee charged with misconduct should have the allegations fairly and squarely put to them. Mr Brown could not recall who made the decision not to particularise the allegations in the letter sent to the applicants on 9 September 2002. However, a second more detailed letter was sent on 12 September after representations from the Union.

181 Mr Ravlich's cross examination of Mr Brown dealt with the details of each of the seven applicants represented by the Union.

182 Mr Brown agreed that the three memos of 1999 and 2000 predated Mr Potlocka's commencement of employment. Mr Brown could not recall if Mr Potlocka was emotional during his interview, or if he had been truthful and co-operative. Reference was made in the interview to the letter identifying the wrong hospital where Mr Potlocka worked.

183 Mr Brown agreed that certain of the occurrence log sheets disclosed that the sheets were filled in at the beginning and end of the shift and that this was consistent with what Mr Potlocka had done.

184 Mr Potlocka had named another hospital employee, Vera, who he had spoken to on the night of one of the allegations. Mr Brown accepted he had not spoken to this person. He said this was because it was not consistent with the evidence he had.

185 Mr Brown accepted that in a later letter to Mr Bright, Mr Potlocka admitted to having gone to McDonalds while on an external patrol. However, Mr Brown said he had not considered this response. Mr Brown agreed that the allegation of conducting a foot patrol without a partner on 21 August 2002 for 40 minutes had been put to both Mr Potlocka and Mr Harper. In doing so, Mr Brown was looking to both of them to say something about the matter. Mr Brown had relied on the agents' contemporaneous notes.

186 Mr Brown agreed that two of the management memos were issued before Mr Stickens had commenced employment.

187 Mr Stickens was working with an employee of a contractor on the night of the 22 August. Mr Brown agreed that he had did not make any inquiries with the contractor or the employee in question.

188 Mr Brown accepted that certain of the occurrence log sheets provide a global entry for the entire shift. Mr Brown said that, at the time, he had only looked at the occurrence log sheets pertaining to the allegations and they were not consistent with the agents' contemporaneous notes.

189 Mr Brown said that there was a suspicion that officers may have been working for the Ford dealership on Main Street, Blacktown. He agreed the suspicion had not been substantiated.

190 Mr Stickens was alleged to have entered Ms Shaw's office and attempted to gain access to her computer around 9.30pm on 22 August 2002. Mr Brown claimed the agent's notes were consistent with Mr Sticken's description. Mr Brown agreed he did not inspect the area where the agent had viewed the incident. There was no video or photographic account of this incident. The agent had said that he did not have a camera at the time. Mr Brown agreed that there was no inquiry undertaken as to whether the computer had in fact been accessed. Mr Brown conceded that he had not spoken to either of the agents about this or any other matter.

191 Mr Brown agreed that the three management memos of 1999 and 2000 predate Mr Cook's employment at Blacktown hospital.

192 Mr Cook had said that on 9 - 10 August 2002 he attended and remained at the hospital helipad with the Care Flight helicopter. Mr Brown agreed he did not make inquiries as to whether a helicopter had been there at the time.

193 As to the 17 minute absence on 24 August, Mr Brown acknowledged that it may have involved an authorised external patrol. Mr Brown agreed that Mr Cook might have been "mimicking the behaviour" of other officers who collected meals while on external patrol.

194 Mr Brown was shown the video of the 19 August incident at Domino's Pizza. Mr Brown agreed that he could not see either of the officers holding a pizza as claimed by the surveillance agents. Mr Brown conceded that he had not inquired as to this anomaly. He had also been aware, at the time, that Mr Tupene and Mr Nagy had made claims of suspicious phone calls purporting to be offering them free pizzas. Mr Brown couldn't say if the officers were being filmed by someone who was already at Domino's Pizza rather than them having been followed there.

195 Mr Nagy had emphatically denied the allegations against him. Mr Brown believed it was sufficient to indicate to Mr Nagy during the interview that he was off the premises without authority, and not to indicate specifically where he was alleged to have been.

196 Mr Brown said he did not make inquiries of the incident report relating to the discovery of a knife on the night of the second allegation against Mr Nagy.

197 Mr Harper had mentioned external patrols outside the hospital. He was alleged to have been off site for 10 minutes without authority on 21 August 2002. Mr Brown agreed that picking up a meal may have been included in the authorised time the officers had been off site during that ten minutes.

198 Mr Brown said that Mr Mitchell had not explained why he was not with his partner on 11 August between 12.30 and 1.38am on 11 August 2002.

199 Mr Brown agreed that Mr Prosser commenced employment after the 1999/2000 management memos. Mr Prosser had one allegation against him. At the interview he had said he couldn't remember where he was at the time. Mr Brown could not recall if Mr Prosser was co-operative in the interview. The transcript of the interview indicated that he had believed he had done nothing wrong. However, Mr Brown believed that this was inconsistent with the allegations. However, Mr Brown had said that Mr Prosser might have had a "plausible explanation". While there was no video of Mr Prosser or his partner at the Chinese restaurant, there was a photo of the officers arriving back at the hospital at 21:00, not 21:07, as claimed by the surveillance agents.

200 Mr Brown said he was entirely satisfied with the conduct of the investigation and that the outcomes were appropriate. He said it was then Mr Bright's and Mr Gerrand's decision to act on his recommendations to dismiss the applicants.

201 In re-examination, Mr Brown confirmed that not one of the officers during their interviews referred to a practice of going off campus to get food. Had he known of such a practice, he said he would have investigated the matter further. Mr Brown said that had proper explanations been given by the officers he would have been prepared to consider them.

202 Mr Brown said the 12 hour shift system had required employees to take a meal when convenient. The officers use certain facilities at any time during the shift. The Union had been involved and agreed to the introduction of the 12 hour shifts.

203 Mr Brown said that he could not recall during the interviews whether any of the officers had said they had not seen the management memos.

204 Mr Kenneth Lingard is the respondent's Area Security Co-ordinator. He has been in the security industry for 22 years; the last 17 years in the health system. He holds various security licences, including a Master licence which permits him to employ security guards.

205 In his affidavit Mr Lingard described the duties and responsibilities of security officers at Blacktown and Mount Druitt hospitals. He attached the National Security Industry Standards. It was Mr Lingard's understanding that security officers were required to enter in the occurrence log books all occasions when they are authorised to be off campus. This was necessary to ensure that hospital management are aware if the officers are off site when an incident occurs, so that Police can be called. Mr Lingard did not accept that there would be any reason for an officer to be off site, except for the reasons in Ms Shaw's memorandum of 3 February 2000. He also did not accept that an officer would not record an absence when off site. Mr Lingard agreed that the 12 hour shift system allowed 12 hour coverage without the requirement for a third person to cover meal or crib breaks.

206 Mr Lingard deposed that he had never observed, nor was he aware, of the alleged custom and practice of obtaining food off site during a shift. There was no record in the logbooks of such a practice. Mr Lingard deposed that the consequences of an unlogged absence could be severe and, in some circumstances, could be life threatening. This was because an unlogged absence could mean the police would not be called and an extended response time might put the safety of patients, visitors or employees at risk.

207 In June 2002 Mr Lingard was instructed by Mr Bright to cause surveillance to be carried out on the operations of the security officers. He couldn't recall whose decision it was, or when it was made. The instruction arose from allegations that the officers were involved in falsification of motor vehicle running logs, damage to personal and WSAHS property and harassment and intimidation of staff and their families. There was also concern about cash count discrepancies at the hospital's public car parks. He said that the security officers were the only persons with access to the keys to the cash collection boxes. Mr Lingard agreed that this allegation had never been substantiated.

208 Mr Lingard engaged Websters Investigations Group ('Websters') to carry out the surveillance. The surveillance commenced in July 2002 and continued over the following six to eight weeks. Mr Lingard said he had chosen Websters as it was the only surveillance company he was aware of at the time. He conceded that it would have usually required a tendering process of obtaining two or three quotes. However, this was waived because of an immediate and urgent need. Mr Lingard could not recall who waived this requirement. In oral evidence, Mr Lingard conceded that many of the issues related to a time span over a number of years.

209 Mr Lingard said he had made the application for the covert surveillance authority pursuant to the Workplace Video Surveillance Act 1998 (the 'Surveillance Act'). The authority had been granted.

210 During the surveillance period, Websters provided reports to Mr Lingard. He attached these reports to his affidavit. They included still photographs lifted from a video film taken by Websters' agents. Mr Lingard said he discussed the reports with Ms Shaw and presented them to Mr Bright and Mr Bernard Deady, (Area Director, Finance and Corporate Services). In these discussions, it was decided that the officers had engaged in inappropriate behaviour and action should be taken against them.

211 Mr Lingard understood that a number of security officers were stood down on 10 September 2002 and a security firm, Fogl Knight and Co was engaged to cover the duties of the officers who had been stood down. Mr Lingard agreed that a Fogl Knight employee, who had worked with Mr Stickens, would also have been in breach of the respondent's policies.

212 Mr Lingard said he regarded the officers' absences as very serious. He believed a security officer carrying out his or her duties should not abandon their post. While Mr Lingard was not involved in the decision to dismiss the officers, he had agreed it was the correct decision. Mr Lingard said he had no confidence in any of the applicants to carry out their duties or tell the truth. Their conduct had demonstrated that they were not professional security officers.

213 In cross examination, Mr Lingard was asked about the Award that covered the security officers, particularly the meal break provisions of the Award. Mr Lingard accepted that the hospital kitchen was closed during most of the officers' night shifts. However, certain facilities, such as a microwave, had been provided.

214 Mr Lingard agreed with an assumption that it would be unfair to have dismissed the applicants if they had believed that the practice of picking up food while on external patrols was tolerated by management.

215 It was Mr Lingard's decision to undertake covert surveillance and Mr Richard Mailey (Managing Director of Websters) advised him of what was required under the Surveillance Act. There was a meeting on 10 July with Ms Shaw to discuss the video surveillance. Mr Lingard said he left it up to Websters as to when and how to conduct the video surveillance. He confirmed these instructions were given before the 17 July 2002.

216 As to the engagement of Websters, Mr Lingard conceded that there was no record of conversations with Websters, no estimate of cost, no exact date of the engagement, no written contract and no written instructions. Mr Lingard further deposed that no particular officers were to be targeted for surveillance.

217 At the time, Mr Lingard claimed he wasn't aware that a Magistrate's order was required before commencing covert video surveillance. Mr Lingard's affidavit to the Magistrate dated 20 August proposed surveillance between 10 August and 9 September 2002. Mr Lingard said he hadn't been aware that the surveillance was being undertaken before the authority was actually granted. Mr Lingard agreed that he knew the bulk of the video surveillance had been undertaken prior to 10 August.

218 Mr Lingard was referred to a condition in the Magistrate's authority which limited the covert surveillance to the staff car park. Mr Lingard believed that so long as the surveillance was not in a building, this limitation was able to be complied with. Mr Lingard confirmed they had not prepared a report for the Magistrate, pursuant to s23 of the Surveillance Act, and said he wasn't aware of the requirement.

219 Mr Lingard was shown subpoenaed final reports from Websters dated 27 August 2002. He agreed that they were different to the final reports he had attached to his affidavit. He had not been aware there were two versions of the reports. Mr Lingard was also shown the agents' contemporaneous notes. He could not explain why the notes appeared in two different forms in the two reports. Mr Lingard had not compared the reports with the video and didn't know if he had seen the short or the long video. Mr Lingard said he was not concerned that certain video evidence was not available in respect to a number of the allegations.

220 Mr Lingard agreed that he did not cross reference the still photographs against the video or the agent's notes. When shown the notes and the photograph of 22 August 2002, Mr Lingard agreed the times didn't match up. He said he was not concerned about the discrepancy as it was "marginal."

221 Mr Lingard had a number of conversations with Mr Bright after 27 August. However, he could not remember the specifics. Mr Lingard said he had no knowledge of how employees were advised of memos and guidelines as he had no direct supervision of the security officers. However, he was aware that they conducted internal and external patrols. Mr Lingard deposed that the average response time to a duress call was three to four minutes. He agreed that depending on the circumstances and the location the response time could be ten minutes. However, Mr Lingard drew a major distinction between being unavailable due to a serious incident and picking up a Chinese meal. Mr Lingard had formed the view that all of the officers had lied and could not be believed.

222 Mr Lingard said that while he knew officers were leaving the site without authority between 17 July and 9 September, at no time did he tell any officer that it was unacceptable to do so because it was putting staff and patients at risk. He believed it was Mr Bright's responsibility, as he was acting for him.

223 Mr Lingard agreed that the occurrence log was generally filled out after an event had occurred. It would not necessarily disclose where an officer was at a particular time. Mr Lingard conceded that allegations of not filling in the occurrence log might not apply to Mr Staal or Mr Tupene. He also agreed that the motor vehicle running sheets were usually filled in at the end of each shift and this had been a practice for some time.

224 In re-examination, Mr Lingard said that Websters had been later engaged to provide protection for Ms Shaw and her family after anonymous phone threats had been made around the time of the stand down of the security officers. The police had also been informed. The threats were treated seriously as Ms Shaw's car had earlier been damaged.

225 Mr Adrian Bright has held the position of Area Director Corporate Services since 2001. Mr Bright has overall responsibility for occupational health and safety matters for the Area.

226 Mr Bright said he first became aware of allegations against security officers from Mr Potts, Ms Shaw and Mr Lingard. The allegations included unauthorised absences, sleeping on duty and intimidation of other staff. In response Mr Bright had taken a decision with Mr Bernard Deady, Area Director, Finance and Corporate Services that surveillance of security guards at Blacktown Hospital was appropriate. He described it as a last resort. Mr Bright believed that if the allegations were true, the health and safety of staff, patients and visitors were at risk. He requested Mr Lingard to cause the surveillance to occur. Mr Bright received updates of the surveillance. It appeared that serious breaches of procedures had occurred.

227 Mr Bright instructed Mr Brown to conduct an investigation and disciplinary process. Mr Bright said he was not personally involved in the process, nor was the particularisation of the allegations discussed with him. In mid September, Mr Brown and Mr Potts reported that the serious allegations had been substantiated. The misconduct warranted the dismissal of a number of security officers.

228 As a result of representations from the Union and involvement of the HAC, Mr Bright said further material was forwarded to the security officers.

229 On or about 22 October 2002, Mr Bright received a further report from Mr Brown and Mr Potts. The report included transcript of interviews, surveillance material, security logs and the responses of the officers. Mr Bright said that he made a check of a number of the examples of absences with the security logs and found that in each case they had not been recorded.

230 Mr Bright said he considered each case afresh and on its own. He had formed the view that termination action should be taken in respect to officers who had not already resigned. Mr Bright discussed the matter with Mr Gerrand, Director of Human Resources and Operational Development. Mr Bright claimed the process was more vigorous than it might normally have been.

231 Mr Bright believed that reinstatement of the officers was untenable and impracticable. Western Sydney Area Health Service relied on the officers to ensure the safety of patients, visitors and staff and needed to have the highest confidence that their functions would be carried out. The officers had failed to carry out their functions, failed to understand their obligations and denied their responsibilities.

232 Mr Bright responded directly to Mr Potlocka's allegation of a conversation with him on 23 October 2002 in which it was said that the investigation and disciplinary action was due to the officers' rejection of the respondent's changes in the security department. Mr Bright denied he had a conversation with Mr Potlocka "in such terms or anything resembling those terms on that day or on any other day." He said Mr Potlocka's evidence was a "total fabrication." Mr Bright had a memo of the conversation which recorded Mr Potlocka's denial of the allegations in which he had said that the surveillance material had been a "stitch up." Mr Potlocka had said he would obtain statutory declarations from the employees of the Mobil garage. Mr Bright sought to discuss the matter with Mr Potts and Mr Lingard. Mr Bright confirmed that no such discussion occurred.

233 Mr Potlocka and Mr Staal had further alleged that the surveillance material had been fabricated. In response, Mr Bright said, he made inquiries of Mr Mailey who then submitted the tape to a specialist laboratory, South Western Electronics. Mr Bright received a report, which stated that the tape had not been altered or changed (Ex "V").

234 In cross examination, Mr Bright was asked again about Mr Staal's and Mr Potlocka's allegations of fabrication of evidence and statutory declarations from the Mobil garage employees. Mr Bright agreed that the statutory declarations were important evidence. However, he had made no attempt to follow up inquiries with these people. Mr Bright had not viewed the video, which did not show Mr Potlocka at all. Nor did it show the car arriving or departing the garage. Mr Bright agreed that he was aware Mr Staal had said he had been at the garage on another occasion. Mr Staal had inferred that the video was incorrect. Mr Bright said he had asked Mr Mailey if the video could be altered. Mr Mailey arranged for the video to be examined and verified. In oral evidence, Mr Bright agreed that "Websters would hardly give me a certificate saying it had been changed." Mr Bright accepted that he had not asked specific questions about whether a time and date had been added. Mr Bright did not believe that it was inappropriate for Websters to obtain an assessment of the authenticity of its own evidence.

235 Mr Bright had relied on a statutory declaration from Mr Colgan about his inquiries at the Mobil garage. However, Mr Mailey had referred to the allegation as occurring on 16 July, when in fact it was 15 July. Mr Bright said he hadn't noticed the discrepancy and would have made further inquiries if he had.

236 In cross examination, Mr Bright said that he did not view all the video footage provided by Websters. He had relied on still photographs and the agents' written notes. Mr Bright said he had not known that there were two tapes.

237 Mr Bright said he understood the memos of 1999 and 2000 had been discussed in various staff meetings during the time of all of the applicants' employment. Mr O'Sullivan, the manager from March to October 2001, had given him a statement to that effect. He believed they would have been fully aware of the requirement to record absences from campus.

238 Mr Bright agreed that he could not point to any particular meeting at which officers were advised of the terms of the three 1999 and 2000 memos. Mr O'Sullivan had told him there had been, but had not been specific.

239 Mr Bright deposed that individual officers were not targeted for the surveillance. However there was a "culture" within the security officers that warranted investigation. The police had not been involved. Mr Bright could not recall the specific details of each of the allegations or the extent of the material he had reviewed at the time. Mr Bright did not know what the officers were actually doing while on external patrols. Mr Bright said he relied on the contemporaneous notes and the surveillance which disclosed that the officers were off site without recording their absence and not notifying the ADON that they had left the campus. Mr Bright agreed that Websters could not have known whether the officers had authority to leave the campus or not.

240 Mr Bright deposed that he could not recall the detail of Mr Potlocka's interview or responses. He accepted that he had not inquired of a person named Vera who was mentioned by Mr Potlocka. Mr Bright could not recall any discussion with Mr Rokebauer, the security manager at the time. Nor could he recall Mr Potlocka's explanation of picking up food while on patrol. He believed it was inappropriate behaviour, even when it was done in conjunction with an external patrol.

241 Regarding the allegation that Mr Potlocka and Mr Harper had both conducted a solo foot patrol, Mr Bright conceded that, at the time, he had not noticed the discrepancy that both officers had been charged with the same offence. He said he had relied on the investigation and advice of Mr Brown and Mr Potts. He acknowledged that any discrepancy was undesirable.

242 In respect to Mr Stickens, Mr Bright said he had received a number of phone calls from him. Mr Stickens had been quite polite; however he was concerned about the length of time the investigation process had taken.

243 Mr Stickens was alleged to have been in Ms Shaw's office at her computer. Mr Bright confirmed that action had been undertaken to verify the computer access; however the inquires were inconclusive. Mr Bright agreed that the surveillance agent had not identified the name of the officer. However, Mr Stickens had been identified by his physical appearance.

244 Mr Bright was asked about the allegations against Mr Stickens concerning absences from the campus. Mr Bright agreed that, on one occasion, Mr Stickens was in the company of a contract employee from Fogl Knight. Mr Bright said he could not recall if the contract employee had been interviewed. He said that he had instructed his officers to make sure the contractor understood the duties required of its employees.

245 Mr Bright could not recall any instructions or directions in respect to ensuring memos were complied with in respect to filling in the motor vehicle running sheets. It was his understanding that the sheets had to be completed in full.

246 Mr Bright could not recall the detail of the numerous phone calls, discussions and meetings about the matter at the time. Mr Bright could not answer why the allegations were not put specifically to the officers at their interviews. Nor could he say whether the intervention of the Department and the Union could have been avoided if the detail had been provided to the applicants earlier. He could not recall if Mr Stickens had requested to see the video evidence of where it was alleged he had been. Mr Bright further conceded that he was not familiar with the terms of the Surveillance Act. Mr Bright was also not aware of the cash handling procedure in the hospital car parks.

247 Mr Bright deposed that he had no cause to investigate the claims of certain officers about suspicious phone calls allegedly made from Domino's Pizza. Mr Bright said he could not recall the details of the allegations against Mr Nagy concerning Domino's Pizza. Mr Bright confirmed that at the time he had not viewed any video material. He had relied on the still photographs and the agents' contemporaneous notes.

248 Mr Bright said he could not recall if he had seen Mr Mitchell's resignation or Mr Harper's letters. Mr Bright could not recall the details of the allegations against Mr Harper. He put that had it been pointed out that Mr Potlocka and Mr Harper were both accused of performing a patrol alone at the same time, he would have made further inquiries. Mr Bright claimed he could not recall whether he considered the material in respect to Mr Harper before, or after, his resignation.

249 Mr Prosser had one allegation against him. Mr Bright could not remember the details of Mr Prosser's situation. Mr Bright deposed that he had not discussed with Mr Rokebauer the alleged practice of picking up meals while on patrol. Mr Prosser had previously worked at Auburn hospital where there was no requirement for a vehicle. Mr Bright conceded that if there was no requirement for a vehicle, Mr Prosser might not have known about the policy. Mr Bright said again that, to his knowledge, no one had ever told Websters who to film or follow. Mr Bright emphasised that he had not been involved in engaging Websters; it had been Mr Lingard's responsibility. Mr Bright said he had received verbal reports from Mr Lingard, Mr Potts and Ms Shaw. Mr Bright conceded it was normal practice to have a written specification for such work. However, this had not occurred.

250 Mr Bright was asked about his earlier evidence concerning officers not being specifically targeted for surveillance. He was shown a letter outlining a meeting between Ms Shaw and Mr Mailey in which it was said, "we elected to prioritise those security officers and co-ordinate the time these officers were working." He agreed this admission had surprised him.

251 As to the decision making process, Mr Bright deposed that Mr Deady as Acting Deputy CEO had made the final decision after he had reviewed all the material with Mr Gerrand and formed a recommendation.

252 Mr Bright gave evidence that he had not been mindful of whether the Award was being complied with in respect to meal breaks. While he was concerned with the occupational health and safety issues arising from employees working a twelve hour shift without a break, the arrangement had been agreed to by the local management, the Union and the employees. Mr Bright conceded that it would not be fair to dismiss an employee if management sanctioned picking up a meal while on patrol. Mr Bright said he could not recall if he had seen Mr Harpers's letter of 29 September 2002 in which he outlined this practice. Nor did Mr Bright speak to senior officers who Mr Potlocka had said were aware of this practice.

253 Mr Bright reiterated that it was his understanding that if officers were off campus, the ADON had to be informed. Mr Bright agreed that officers may sometimes be unavailable if they were attending another emergency or incident. He agreed that these situations would be no different to collecting a Chinese meal two minutes from campus.

254 Mr Bright said that he first became aware of alleged unauthorised absences sometime in 2001, but he did not issue any instruction for it to cease. Mr Bright acknowledged that he was prepared to let a serious health and safety issue run for some weeks in order to get to the truth of the matter.

255 Mr Bright was asked about the unauthorised absence of Mr Tupene on 26 July for 15 minutes. The agents' contemporaneous notes showed part of this time included a patrol of hospital grounds. Mr Bright agreed that this could not have been an unauthorised absence for the full 15 minutes. The same could be said for the absence on 24 August of 17 minutes where the agents recorded the officers driving off campus along Marcel Crescent, along Main Street and stopping at the Chinese restaurant.

256 As to the 26 July Domino's Pizza incident, Mr Bright had concluded that Mr Nagy and Mr Tupene had lied about the suspicious phone calls. He said he had not considered whether it was possible Websters had made the phone calls to entice the officers off site. Mr Bright was not aware that there was no video footage of this absence, nor did he consider whether it was physically possible to drive to Domino's, collect a pizza and return to the campus in ten minutes.

257 Mr Bright deposed that, notwithstanding at least four officers had challenged the truth of Websters' contemporaneous notes, he had preferred Websters' evidence.

258 In re-examination, Mr Bright was referred to his evidence concerning the twelve hour shifts. He said that in 2002 the respondent sought to move away from this system. However, the change was totally opposed by the Union and its members and ultimately resulted in dispute proceedings in the Commission.

259 Mr Bright was asked again about the incident on 26 July involving Mr Tupene and his partner. He noted that a report of the suspicious vehicle over a month later had not been brought to his attention by Mr Tupene or anyone else.

260 Mr Richard Mailey is the Managing Director of Websters Investigations Pty Ltd. On 27 June 2002 Mr Mailey said he was contacted by Mr Lingard and asked to cause investigations and surveillance of the hospital security officers. Mr Mailey directed the operation and said that reports, video films and still photographs had been prepared and provided to the respondent.

261 Mr Newall asked Mr Mailey further questions about the whereabouts of Mr Colgan, the agent who undertook the surveillance. Mr Mailey confirmed that Mr Colgan had left the employment of Websters and he was unaware of his whereabouts. Mr Mailey had attempted unsuccessfully to contact him by phone and mail. He believed that he might have returned to New Zealand with his family. In cross examination, Mr Mailey said he had informed Mr Brown on the first day of the hearing that he was having difficulty contacting Mr Colgan.

262 Mr Mailey said Mr Colgan had worked for him for about three and a half years on an ad hoc basis as a contractor. Mr Colgan had undertaken the surveillance and engaged a second agent, his son Wayne Colgan. Total surveillance at Mount Druitt was 18 hours and at Blacktown about 70 hours.

Mr Mailey said that Mr Colgan used his own equipment, which included five to six different cameras.

263 Mr Mailey deposed that video surveillance had been discussed with Mr Lingard in late June. Initially, the surveillance was to be off site and therefore did not require a court authority.

264 Mr Mailey was shown his letter dated 2 July to Mr Lingard where he referred to the first meeting about this matter in late June. In the letter Mr Mailey had referred to "these hardliners." He said he had formed this view from the information he had at the time. At this stage, no final decision had been made to engage Websters.

265 Mr Mailey met Ms Shaw on 10 July. Mr Mailey agreed that particular names (8 to10) had been identified on certain shifts from a roster document Ms Shaw had marked up.

266 Mr Mailey said that Mr Lingard had told him that the primary reason for the surveillance was that officers were leaving the hospital campus in a hospital vehicle. An application for video surveillance had been made around 20 July. Mr Mailey had assisted in the preparation of Mr Lingard's affidavit to the Magistrate.

267 Mr Mailey could not say when Mr Lingard had told him the court authorisation had been granted. In any event, it was Mr Colgan who had carried out the surveillance. Mr Mailey gave evidence that surveillance was carried out from the public street and in the hospital's public car park. At the time he had interpreted the Act such as to conclude that a Magistrate's authority was unnecessary when videoing within the grounds of the hospital. However, he conceded that he no longer holds that view.

268 Mr Mailey had filed documents on at least three occasions at the Downing Centre up to 21 August 2002. He accepted that video surveillance had been undertaken up to that date. However, Mr Mailey believed that compliance with the Act was up to Mr Lingard and Mr Colgan.

269 Mr Mailey deposed that he had provided all the original video material to the Area. A sealed copy of the video was provided to Mr Bright in November 2002. This was the original that was sent for verification. Mr Mailey retained a copy when he prepared his affidavit in 2003. He said it was identical to the subpoenaed video. Ten copies had been made. A short version of around seven minutes had also been prepared.

270 Mr Mailey was shown his affidavit and the annexures which included two final reports to the Area for Blacktown and Mount Druitt hospitals dated 27 August 2002. He said Mr Colgan had drafted the reports.

271 Mr Mailey argued that the agents' contemporaneous notes did not indicate which agent conducted the surveillance. He claimed the accuracy of the notes was Mr Colgan's responsibility. Mr Mailey believed Mr Colgan to be the best surveillance operator in New South Wales and that his notes were accurate.

272 Mr Trevor Colgan provided an affidavit (Ex "D", later marked as MFI 1) but was unable to be contacted and did not respond to a subpoena to attend the Commission to give evidence. I note that the substance of his one and a half page affidavit and the attached contemporaneous notes were already in evidence. Mr Colgan's cross examination would undoubtedly have been of some assistance. However, not much can be conlcuded from what was provided. Mr Wayne Colgan was also subpoenaed to attend and give evidence, but did not appear.

SUBMISSIONS

273 All the parties put detailed and comprehensive submissions. It is not practical to recount the full detail of these submissions. I propose to offer a summary.

274 Ms C Howell of counsel submitted that four matters had been disclosed in the evidence. Firstly, her clients Mr Staal and Mr Tupene were totally innocent of any wrongdoing. Secondly, the respondent was in serious breach of the Surveillance Act; thirdly, there had been a breach of the relevant Award, and fourthly, that the respondent's investigation was inept and unfair. On that basis, Ms Howell put that the applicants should be reinstated and that they should receive full back pay and continuity of service.

275 Ms Howell submitted that by making the security officers work twelve hour shifts with no time for meal breaks was effectively a breach of the Award. She stated that there was permission for security officers working twelve hour night shifts to collect food from local takeaway shops during their shifts. Ms Howell submitted that the evidence of Mr Gladwell supported a finding that a practice had been developed, which allowed security officers to go off campus to get food. These circumstances could not constitute misconduct. More importantly, Ms Howell submitted that management knew of this practice and that all the security officers understood it was a common practice.

276 Ms Howell submitted that the investigation carried out by Websters was seriously flawed and contained obvious fabrications. She submitted that it was upon these findings that the decision to dismiss the applicants was made. The allegations against her clients were both untrue and fabricated. The onus to establish misconduct in the workplace falls on the employer. In this case the onus had not been satisfied because the allegations had not been properly evaluated.

277 In regard to the Award breach, Ms Howell submitted that this matter should be considered when determining whether the dismissal was 'harsh, unjust or unreasonable'. Mr Bright had conceded that it was unreasonable to expect the officers to work twelve hours without a break.

278 Ms Howell addressed the issue of the applicants disobeying the respondent's policies by submitting that it was the applicants' evidence they had never seen the policies. Ms Howell put that Mr Brown was unaware that security officers were required to go off campus to conduct external patrols and there was no need to seek permission. However, Mr Brown simply proceeded on the basis that there could be no reason to be off campus without express permission. Accordingly, the whole investigation was conducted under a fundamental misapprehension.

279 Ms Howell submitted that the nature of the interview questions were such that the applicants were simply asked if they had made any unauthorised absences from campus. In light of the evidence concerning the practice of picking up meals, the applicants had answered correctly. Ms Howell put that in at least one of the interviews, one of the applicants had said, "it was okay to go and get some food." She further pointed out that this explanation was given in later correspondence from the applicants.

280 Ms Howell said that although management was informed of the practice, nothing was done to investigate the truthfulness of the assertions. Rather it was ignored. Ms Howell put that the resignation letter of Mr Harper made express reference to the practice; and yet Mr Brown had said that he did not consider the matter relevant for the purposes of his inquiries. In these circumstances, it was obvious that Mr Brown had pre judged the issues. She referred to Mr Brown's evidence in which he said he had not formed a view about whether there was such a practice as he regarded the matter as irrelevant.

281 Ms Howell suggested that the former security manager, Mr Rokebauer, was familiar with the practice. The failure of the respondent to call Mr Rokebauer as a witness should draw a Jones v Dunkel inference. Other persons were also said to have known of the practice, but their evidence was ignored.

282 Ms Howell submitted that the respondent characterised the conduct of the applicants as constituting a risk to health and safety of the patients, staff and visitors. It was said that absences from campus might delay the reaction time in the case of an emergency. It would also determine whether hospital staff would call the police or rely on security officers. Ms Howell put that this argument was nonsense. The evidence was that the security officers were required to fill in their absences in the logbook once they returned to the office. It would be impossible for anyone to know where an officer was at any given time, including on external patrols.

283 Ms Howell and Mr Ravlich both put that this was a case where the respondent had been searching for evidence of misconduct. So much so that management allowed the practice to continue in the face of what was said to be a risk to health and safety. The respondent sought to rely on the absences from campus to collect food, as a basis to terminate the applicants after no evidence could be found of the applicants being engaged in other alleged activities.

284 Ms Howell submitted that with regard to Mr Staal, the only allegation was that which placed him at the Mobil garage, a half hour away from campus on 15 July 2002. Both of the officers vehemently denied the allegation. The only evidence the respondent relied on was the contemporaneous notes of Mr Colgan. Ms Howell submitted that Mr Staal and Mr Potlocka were witnesses of credit. They did not lie and only gave evidence as to what they had been saying all along - that the allegations were false.

285 It was said that Mr Staal was deceived into going to the Mobil garage on another occasion with promises of a job opportunity. When he arrived, there was nobody to meet him. She said this could be evidence of entrapment, particularly in light of the reported cases of suspicious phone calls to entice other officers to Domino's Pizza.

286 It was claimed that the video footage of Mr Staal in the Mobil garage was doctored so that the date on the footage reflected a time corresponding with Mr Staal's shift when, in reality, it was taken at another time and date. Ms Howell put that Mr Staal obtained statutory declarations from the console operators who were on duty at the garage at the time. Their evidence was that not only was Mr Staal not at the Mobil garage, but they had never seen him before. Another employee at the Mobil garage confirmed that Mr Staal had been on the premises at a time entirely consistent with the time he said he went there to find out about an anonymous job opportunity. This was outside work hours when he was not wearing his usual work attire.

287 Ms Howell noted that the odometer reading on the day of the alleged trip to the Mobil Garage was inconsistent. She put that the alleged trip would have placed a further 7.2 kilometres on the odometer. Further, Mr Brown made no attempt to verify Mr Colgan's story, particularly in light of Mr Potlocka's and Mr Staal's vehement denials.

288 Turning to Mr Colgan's evidence, Ms Howell invited the Commission to view the video footage again. Mr Staal had claimed that on that occasion he drove to the garage in his own vehicle. Ms Howell submitted that it was no coincidence that there was no footage taken of the vehicle that Mr Staal arrived in, or it being parked at the garage. Further, there was no footage of Mr Potlocka, which supported his claim that he was not even there. She put that this demonstrated Mr Staal went to the garage by himself while off duty.

289 Ms Howell further noted that the footage allegedly taken at 2 o'clock in the morning had an unusually large amount of through traffic - not only were people filling their petrol tanks, but also doing large amounts of shopping. Further, Mr Staal is pictured in a short sleeve shirt and not in his uniform on a cold night in the middle of July. In Mr Colgan's later statutory declaration he had got the date of the video footage wrong.

290 Ms Howell submitted that the contemporaneous notes about this incident were false. Mr Colgan said he had spoken to a witness who was familiar with Mr Staal and was able to identify him. However he was not called in the proceedings. As an allegedly experienced surveillance officer, why did Mr Colgan forget to obtain this person's name? Faced with two statutory declarations from other persons, why did the respondent not seek to clarify the situation further?

291 Little weight should be given to the date and times on the video, Ms Howell said. While the video had been authenticated by an electronics technician in Campbelltown as not having been tampered with, there was no authentication for whether a date had been added following the event, or whether a correct date had been entered at the time. Ms Howell observed that the time and date were inconsistent throughout the length of the video. She put that it would have been prudent to have had the date and time set at all times.

292 Ms Howell compared the two videos tendered in the evidence. She said that neither tape was in fact the original. It would appear that the video technician was not even in possession of the original video at the point of verification. In any event, it was put that it would be inconceivable that Websters would have claimed the video to be anything but authentic. To do otherwise would prove its own contemporaneous notes were fabricated.

293 It is important to keep in mind Ms Howell put, that the electronics technician was never called as a witness. She stressed that while his certificate was in evidence, it was only in evidence for the purpose of showing what was before the decision maker when making the decision. It should not be considered evidence as to the veracity of the videos. In failing to call the technician as a witness, it was submitted that a Jones v Dunkel inference arises. Further, Ms Howell put that while Mr Bright was well aware that the video evidence was hotly contested, he did not bother to watch it. Ms Howell submitted that this was further evidence of the extraordinary lack of thoroughness in the investigation. She said the respondent was not interested in a proper inquiry; it was only interested in finding a pretext to support the dismissal of the applicants.

294 Ms Howell submitted that in regard to Mr Tupene, there were three allegations of being off campus for short periods of time. For each allegation, Mr Tupene had given a proper explanation. She put that the first allegation involved Mr Tupene going off campus on 26 July for ten minutes to collect a Domino's Pizza. Both Mr Tupene and his partner Mr Nagy vehemently denied this allegation. Mr Tupene had explained that it was his practice to pick up Chinese food at least once a week and that he had picked up some food on that night after conducting an external patrol.

295 Ms Howell said that Mr Tupene was a witness of credit; he did not lie, was frank when explaining his absences and there was nothing in his evidence to suggest that he was anything other than entirely truthful.

296 In regard to the Domino's Pizza allegation, Ms Howell observed that there was no video evidence of the event. Mr Tupene in evidence stated that he received a phone call advising him that if he were to go to the Domino's Pizza he would receive a free pizza. Ms Howell put that the respondent did not pursue his explanation, as it would have been inconsistent with its own evidence.

297 Ms Howell referred to another incident concerning other officers at Domino's Pizza. The agent's notes record that the officers left the premises with a pizza in hand. However the video footage shows the officers leaving empty handed. Ms Howell also noted that the video footage was taken from a vantage point, which would indicate that the agent was already in position at Domino's, rather than following the officer's vehicle. This evidence begs the question as to how the agent could possibly have known the officers would be going to Domino's Pizza.

298 Ms Howell put that there was evidence of three examples of entrapment. Either the five security officers were lying or Mr Colgan's evidence is untrustworthy and unreliable. The latter explanation must be preferred.

299 In relation to the allegation that Mr Tupene had a fifteen minute unauthorised absence from the campus on 26 July 2002, Ms Howell noted that the agents' contemporaneous notes reflect that during the fifteen minutes, Mr Tupene made a patrol of the grounds and travelled along Main Street, Blacktown. Mr Tupene had given evidence to the effect that he was observing a suspicious car, a car which turned out to be Mr Colgan's. Ms Howell put that given these circumstances there could be no misconduct.

300 The third allegation was that Mr Tupene picked up Chinese takeaway on 25 August. Mr Tupene admitted to this. On the basis that the restaurant is less than 200 metres from campus, Ms Howell submitted that this behaviour could not be considered misconduct, let alone serious misconduct.

301 Ms Howell submitted that the entire investigation was flawed in many respects. She noted that there was no contract, no terms, no instructions to Websters and no brief regarding video surveillance. Ms Shaw had identified eight to ten suspects for investigation, while it was Mr Bright's evidence that Websters had an open brief and had not identified any officers to be targeted. She put that there was no evidence to support either claim.

302 In the face of the evidence, Ms Howell put that the persons targeted for the surveillance and their partners were just unlucky. She suggested that many others may well have been going off campus to collect meals and yet they were not targeted or dismissed. This was another aspect of unfairness. Ms Howell put that it was "interesting" that Ms Shaw was not called to give evidence, given her role in identifying the persons suspected of serious misconduct.

303 Ms Howell submitted that reasonable explanations were provided for the allegations - a practice had been established in relation to picking up meals and the respondent chose to ignore it. Serious contradictions were evident in the evidence given by Mr Colgan. He knew he was required to appear in the proceedings and failed to do so. Ms Howell submitted that the Commission would be able to draw damning inferences as to the truth of any evidence put forward by Mr Colgan.

304 Ms Howell submitted that the appropriate remedy in the circumstances would be reinstatement. Mr Staal and Mr Tupene had done absolutely nothing wrong. If there was any misconduct it was by the respondent. There was no evidence of the impracticality of reinstatement. See Hollingsworth v Commissioner of Police (1997) 77 IR 339.

305 Ms Howell foreshadowed that a costs order would be sought.

306 Mr Ravlich for the Union, put that there were four broad areas of difficulties with the respondent's case. The investigative process was inadequate and incompetent; the penalties imposed on those dismissed were harsh in the circumstances, that a practice had been established concerning picking up meals off campus and that senior management had ignored evidence of this, and that the respondent was in breach of the Surveillance Act.

307 Mr Ravlich submitted that the record keeping by the respondent was inconsistent with the expectations of a modern bureaucracy. Mr Ravlich directed the Commission to Mr Brown's evidence when he said no records or notes were made or retained concerning the meetings held before the investigation. Further, Mr Lingard and Mr Bright gave evidence that no contract, record of engagement or specifications for the contract were created for the engagement of Websters. The engagement of Websters was contrary to public sector policy and highly suspect.

308 The initial disciplinary process was completely flawed, Mr Ravlich submitted. He put that it was not until the Executive Brief recommended dismissal, that the applicants received details of the allegations against them. At this point, Mr Tracey from the Union had become involved and sought a copy of the agents' contemporaneous notes made by Websters.

309 Mr Ravlich put that motor vehicle running sheets and other documents should have been put forward at the outset of the investigation. Mr Brown gave evidence to the effect that he did not think it was material to the outcome of his investigation to provide these details. Mr Ravlich argued that this process only served to hamper the investigation, heighten the distress of the applicants and deny them a chance to respond to the charges. Mr Ravlich said the respondent simply appeared to be "going through the motions."

310 It was put that when the decision to terminate the applicants was made, Mr Bright was not even aware that external patrols did not require prior authorisation. Mr Bright proceeded on the basis that being off campus at any time without prior permission would be deemed an unauthorised absence. Mr Bright stated that while he believed that officers were required to report to the ADON prior to leaving campus, he was not sure. Mr Ravlich submitted that Mr Bright proceeded under a misapprehension and should have made inquiries to clarify the issue. Mr Ravlich put that had he done so, he would have known that the applicant's behaviour was an accepted practice.

311 Moreover, Mr Ravlich emphasised, that during the investigation Mr Bright was told on several occasions that the applicants did pick up food from takeaway restaurants whilst on external patrol. He had been told that it was an accepted practice and yet he did nothing to ascertain the truth of these statements.

312 Mr Bright and Mr Brown relied exclusively on the agents' contemporaneous notes, Mr Ravlich said. He directed the Commission to evidence of Mr Brown, where he said, he had undeniable faith in the notes. Mr Bright had indicated that he too gave primacy to the notes. Mr Ravlich put that when faced with conflicting evidence, they both chose to ignore it.

313 Mr Ravlich argued that the respondent erred in making its decision in part, based on the allegation that the applicants had not filled in motor vehicle running sheets. On the contrary, the security officers all claimed the sheets were usually filled in at the end of the shift. Moreover, Mr Lingard had said that the sheets were completed in this way. Mr Ravlich noted that each motor vehicle running sheet is double-checked by supervisors and had never been a cause for concern. As an accepted practice, it was not considered by the respondent when making the decision to terminate the applicants' employment.

314 Mr Ravlich argued that the Executive Briefs were lacking in substance. There were many omissions and not all the issues were before the decision makers. Mr Bright had conceded that he put a lot of weight on the investigation. The issue of picking up meals and the possibility of this being a practice was not specifically raised with him. Thus it was not in his mind when making the decision to terminate the applicants' employment.

315 It was claimed that specific officers were targeted during the surveillance campaign. Despite evidence from Mr Bright, Mr Ravlich noted that Ms Shaw had given directions to Websters to investigate certain officers and Mr Lingard shared the same view as Ms Shaw. Mr Ravlich said that the investigation had been extended for the express purpose of seeking further evidence against a number of individuals. Its purpose was to catch certain persons, named by Ms Shaw in a document given to Mr Mailey, despite the practice being allowed to continue during the surveillance.

316 Mr Ravlich submitted that the basis upon which the Magistrate's order was sought was wrong. One claim concerned missing money from hospital parking meters. However, the respondent's cash handling procedures meant that security officers did not have keys or access to the parking meters. While the applicants had given evidence to this effect, it was completely ignored by the respondent.

317 Mr Ravlich referred to the evidence of Mr Bright that he had reviewed all the material against the applicants afresh. However he had not even watched the surveillance video. It was likely that Mr Bright had largely relied on the agents' contemporaneous notes and had not examined all the evidence as he had claimed.

318 It was said that management had let allegedly serious occupational health and safety issues continue in order to gather evidence against the applicants. At no point did the respondent seek to discipline or inform the applicants that their actions were putting the safety of staff, patients and visitors at risk.

319 Mr Ravlich put that the respondent had breached the Surveillance Act by providing false information to the Magistrate. Much of the surveillance itself was in breach of the Act as sections of the footage were taken outside the dates approved by the Magistrate. He further put that is was wrong to have taken video footage outside the hospital grounds, as it was not authorised. No one has claimed responsibility for these mistakes. Not all of the video footage had the correct dates and times. Given the highly technical nature of Mr Colgan's surveillance equipment, Mr Ravlich asserted that something would seem to be amiss. There was no point in taking surveillance footage unless it was an accurate and complete record of events. It must raise suspicions as to whether the dates were programmed to reflect false dates and times.

320 Mr Ravlich added that the verification of the video footage by a person with an electronic trade qualification was of little value. The technician would not have been looking at the dates or times. The only person who could offer an explanation was Mr Colgan.

321 The Union believed that the video footage demonstrated that the applicants were "set up." In particular, Mr Ravlich referred to the Domino's Pizza incident. The fact that the person taking the footage seemed to have pre-empted the officers' arrival at the restaurant was highly suspicious. How could the surveillance agent possibly have known, unless he had prior knowledge? As further support for this submission, Mr Ravlich highlighted the reported incidents of security officers receiving suspicious phone calls to entice them to go to Domino's Pizza to collect a free pizza. Moreover the footage shows the officers leaving Domino's Pizza empty handed. This was at odds with the contemporaneous notes. Had the respondent viewed the footage carefully perhaps it may not have terminated the applicants.

322 Mr Ravlich claimed that, in many instances, the video footage was inconsistent with the agents' contemporaneous notes.

323 It was further alleged that the applicants were improperly denied access to the surveillance footage early in the proceedings, breaching the employee's statutory rights pursuant to s17(1)(d) of the Surveillance Act.

324 Mr Ravlich submitted that it was now accepted that the allegations regarding the vehicle running sheets and the logbook not being correctly filled out, were misinformed. Accordingly, those allegations should be determined as false.

325 Mr Ravlich put that many of the applicants never saw the memoranda concerning the use of motor vehicles. Most of the applicants' commenced employment after the memos had been circulated. He put that it was entirely consistent that the employees did not know that a policy existed concerning the use of the motor vehicle with respect to leaving campus.

326 Mr Ravlich dealt with the allegation that Mr Stickens had improperly accessed the computer of Ms Shaw on 2 August. He said the evidence in the agents' contemporaneous notes only gives a short description of the person allegedly seen in the office. This fell a long way short of a clear identification. Further to this submission, Mr Ravlich put that it would have been near impossible for Mr Colgan from his vantage point to have seen who was inside the office, let alone what they were doing. It was also strange that there was no investigation to identify whether the computer had been accessed.

327 Mr Ravlich agreed that the applicants had perhaps unfortunately relied on the advice of a layperson (Mr Buckley). They probably should have sought proper industrial advice from their Union.

328 Mr Ravlich argued that, in the circumstances, the appropriate remedy for all the applicants should be reinstatement with continuity of service and full back pay from the date of their dismissal/resignation.

329 Ms Carl, intervening for the Labor Council of New South Wales put submissions regarding the provisions of the Workplace Video Surveillance Act 1998 and whether the respondent in this case had breached the spirit and the letter of the Act. Ms Carl claimed that the respondent's use of video surveillance as disclosed in the evidence was both inappropriate and illegal.

330 The first area of concern related to the evidence which revealed that the dates the respondent conducted their surveillance were outside the authority given by the Magistrate. The authority was granted from 21 August to 20 September, yet video surveillance was plainly undertaken from 26 July 2003.

331 Ms Carl put that the Magistrate's order provided that surveillance was to be carried out within the workplace. The evidence showed it was conducted outside the workplace. Ms Carl also put that the use of still photographs was outside the terms of the court order and was in contravention of the Act.

332 Finally, Ms Carl submitted that the respondent's decision to dismiss the applicants in circumstances where the Act had been breached was harsh, unjust and unreasonable. The Commission might also refer the actions of the respondent to the Attorney General or other appropriate Government bodies.

For the respondent

333 Mr Newall submitted that Messrs Cook, Harper, Mitchell, Stickens, Prosser and Potlocka should be excluded from the Commission's jurisdiction pursuant to s85 of the Act. Each of these applications was filed outside the 21 day time limit prescribed by the Act. The Union had not offered a reasonable explanation for the delay and had not established a "sufficient reason" for the Commission to accept the applications.

334 Mr Newall also submitted that as Messrs Cook, Harper and Mitchell had resigned from their employment, they were excluded from the Commission's unfair dismissal jurisdiction. Each of them was a member of the Union, and had access to the Union's advice. While a two to three week delay might be considered as insignificant, in the present case the Commission is faced with a considerable delay - up to seven weeks.

335 Mr Newall submitted that the respondent would be prejudiced if the applications were accepted. The onus is on the applicants to ensure their applications are filed correctly. In this instance, Mr Newall said there was no reason why the applicants, or their Union, could not have lodged an application after their resignations, if they believed there was in fact a dismissal. Moreover in the case of Messrs Cook, Harper and Mitchell, they had the benefit of advice prior to their resignations - in fact the three applicants had a group meeting with the Union. Any delay in these circumstances is inexcusable and the Union did not proffer any explanation.

336 Mr Newall further claimed that Messrs Cook, Harper and Mitchell were not frank in giving their evidence. He directed the Commission to the evidence that they were forced to resign due to financial pressure as a result of reduction in pay. This was untrue. Furthermore, in each application the words were identical, yet the applicants expressly stated on oath that they were their own words. This was a ruse to bring the applications more squarely within the jurisdiction of the Commission. Moreover, Mr Newall put that this untruthfulness was deliberate and, accordingly, the Commission should not exercise discretion in their favour.

337 Mr Newall submitted that should the Commission entertain these applications, the respondent would suffer hardship as the respondent had ceased the investigation after the resignations and does not have the benefit of all the material pertinent to the investigation. The behaviour of the respondent did not hinder the application being filed. See Anthony Bonaccorso and General Forest Tree Surgeons Pty Limited [2003] NSWIRComm 70.

338 It was said that the standing of a Union in representing dismissed employees should not be treated lightly. There can be no doubt that the Union was aware of its responsibility to file an application or offer a reasonable reason why such action was not taken. The Union had failed on both counts, Mr Newall said.

339 Mr Newall put that the Union's submission that it was seeking to set up a Disputes Committee was no excuse at all. The onus was still on the applicants to ensure their applications were filed in time. As the applicants had offered no explanation for their late applications, the Commission could not be satisfied that a sufficient reason had been given, pursuant to s85 of the Act, such as to warrant the admission of their late applications.

340 In relation to Messrs Stickens, Prosser and Potlocka, Mr Newall put that there could be no doubt that they were dismissed and that their s84 applications were lodged 17 days late. They were members of the Union at the time of the dismissal and had the benefit of legal advice. There could be no doubt that they were aware of their rights. Indeed the applicants had stated that nothing prevented them from lodging their applications in time. Again there was no explanation given by either the Union or the applicants. Accordingly, Mr Newall put that the Commission was left with nothing to consider when deciding whether to exercise its discretion pursuant to s85 of the Act.

341 As to the merits of the matter, Mr Newall said that the applicants were employed as security officers for the two hospitals within the Western Sydney Area Health Service. Their duties included the security of staff, visitors and patients. They worked shifts of 12 hours duration and worked unsupervised. The respondent's policy required security officers to remain on campus at all times, other then when expressly authorised. However, Mr Newall submitted that the applicants chose to absent themselves from the campus, for personal reasons, on one or more occasions while on duty. The applicants were detected and their absences recorded.

342 When called to explain their absences, Mr Newall said that none of the applicants openly explained that they were picking up food. They now collectively explain that they went off campus on external patrols and would detour to collect a meal. It was further claimed that this was an accepted practice which was overtly approved of by the management.

343 Mr Newall noted that when the applicants were given full details of their absences, three promptly resigned. The seven remaining applicants were given another chance to explain their conduct before being summarily dismissed.

344 Mr Newall referred to a memorandum, which informed security officers that they are not permitted to go off campus while on duty. The evidence indicated that Mr Nagy and Mr Stickens had seen the document. Whether or not the other applicants had seen the document, they understood the basis upon which they were entitled to leave the campus. Mr Prosser had agreed that it would be wrong to go off campus for personal reasons.

345 Mr Newall observed that each of the applicants was not forthcoming during the initial interview, regarding the collection of meals. Each applicant went to great detail to explain what he had been doing. However, strangely, not one of the applicants explained that he had been picking up a meal. Mr Newall put that it was clear that the applicants knew they were not to pick up meals as they could have admitted to it during the interview.

346 Mr Newall claimed that when the security officers are off site, the police would be called in emergency situations. He noted that it was agreed that an absence from campus could potentially be life threatening to the safety of staff, patients and visitors. In light of this, a prima facie breach of the employment contract had occurred which justified dismissal.

347 On referring to the Websters report, Mr Newall submitted that it was accurate. The applicants had later corroborated being off campus at certain times. The allegations of fabricated videotapes could not be supported by the evidence. The majority of the observations recorded corroborate the correctness of Websters' notes. It was said that Mr Colgan's failure to give evidence should not give rise to an adverse finding as to the reliability of his evidence.

348 Mr Newall suggested that if there were any breaches of the Surveillance Act, these were irrelevant to the Commission's determination in this matter. The Commission need only determine whether the applicants were unfairly dismissed pursuant to s84 of the Act. Similarly, an alleged award breach would not be within the ambit of the Commission's jurisdiction in the context of these s84 applications. In any event, the 12 hour shift was an arrangement that was preferred by the security officers and actively supported by their Union.

349 Mr Newall put that the applicants had failed to discharge the onus of proving that their terminations were unfair. He put that in relation to Messrs Harper, Mitchell and Cook, theirs were resignations and should fail at first instance. Secondly, the allegation that they were forced to resign due to a reduction in pay was false and should fail on that basis. Thirdly, the evidence given by Messrs Harper, Mitchell and Cook does not reveal that they were forced to resign at the initiative of the employer. The employer had not sought their resignations, expressly or by inference. See Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154. Fourthly, Mr Newall submitted that should the Commission find that Messrs Harper, Mitchell and Cook had not been candid in their evidence then they should not be afforded any discretionary remedy.

350 It was accepted that Messrs Harper, Mitchell and Cook were informed that termination of employment was a possibility. This was done as part of the respondent's duty to inform the applicants of the seriousness of their actions. However, termination was not a certainty. The respondent invited them to offer an explanation in mitigation of their actions. Instead they chose to resign. Mr Newall argued that this submission was reinforced by the fact that the seven other applicants received the same letter and had not felt any pressure to resign.

351 Mr Newall referred to certain other aspects of the evidence. He submitted that the agent had observed Mr Harper misconducting himself and upon that basis the respondent was entitled to find that Mr Harper's behaviour was serious misconduct. Mr Harper, of course, denied the allegation. However, Mr Newall put that, based on Mr Harper's less than candid evidence before the Commission, his evidence should not be accepted.

352 It was said that Mr Mitchell's affidavit was incorrect in that he had said he was worn out with worry, that the decision to terminate him had already been made and that he was not in receipt of all the details of the allegations - giving him no way to answer them. Mr Newall however, put that Mr Mitchell was in receipt of the agents' contemporaneous notes and was given an opportunity to explain himself - which he refused. At no time did the respondent seek his resignation or place pressure on him to do so.

353 Mr Newall claimed that Mr Mitchell could not sufficiently answer the allegations. He had been seen travelling up Main Street on three occasions on the one night. Mr Mitchell had conceded that, while it was not part of the regular patrol route, it was used to pick up Chinese meals. Mr Newall suggested that it was improbable, that he was picking up Chinese meals three times in one night. The other two trips were left unexplained.

354 Further, Mr Mitchell's conduct during the interview was not that of a person giving straight answers. There can be no question that Mr Mitchell was not reliant on advice, as he explicitly said that he was acting on his own. It was suspicious that Mr Aluna, who was with Mr Mitchell on that night, did not give evidence in support.

355 Mr Newall submitted that Mr Cook absented himself from the campus to retrieve a Domino's pizza. Whether the applicants actually retrieved a pizza was irrelevant. The point was that they left the campus unattended and put the staff, patients and visitors in a life threatening situation. Further, if the issue of entrapment were real then it would have been important for any competent officer lured away from campus to record such an occurrence in the logbook. This had not occurred.

356 Mr Newall put that Mr Nagy was terminated for serious misconduct. He had absented himself from campus on two occasions to pick up meals. While the allegations were denied, Mr Newall put that it was more likely that it happened, given that the other observations of the agent had been largely admitted. As the respondent had formed this view, Mr Newall argued that it was entitled to dismiss Mr Nagy for serious misconduct.

357 It was claimed that Mr Stickens was seen attempting to access Ms Shaw's office and was observed at a Chinese restaurant on Main Street. Similarly the respondent was entitled to find that Mr Stickens' actions constituted serious misconduct.

358 Moreover, Mr Newall put that Mr Stickens was untruthful in giving his evidence, both in his initial interview and in his evidence before the Commission. He conceded as much during evidence in the Commission. At first he denied all the allegations in his interview, then he conceded that he did go off campus. He agreed that the respondent had a right to know where he was and yet he lied and deliberately set out to deceive the employer. This untruthfulness should be considered in light of the allegation that he was in Ms Shaw's office. The respondent was also entitled to regard his behaviour and lack of candour as serious misconduct.

359 It was conceded, Mr Newall said, that there was no evidence to suggest that Ms Shaw's computer was tampered with. However, the surveillance agent observed Mr Stickens or a man matching his description in her office. As there were only two security officers on campus at the time - being Mr Stickens and Mr Prosser - it was assumed that, as Mr Stickens fitted the description, it was likely to have been him.

360 Mr Newall noted that Mr Prosser did go off campus without authority; Mr Stickens was with him and had admitted as much. Interestingly, he did not admit to going off site and collecting a meal; rather, that he did not agree with the agent's surveillance report. He had offered several possible explanations for being off campus, but not that he may have been collecting a meal. He had been given another opportunity to confess after the interview having seen the contemporaneous notes. Instead he said that there could be no evidence, as it was too dark to film. This was not the explanation of a person giving a straight answer.

361 Mr Newall observed that Mr Potlocka ultimately did not deny the allegation that he was at McDonalds. However in the initial interview, he was not forthcoming. Video footage captured Mr Staal at a Mobil Garage and it could be assumed that Mr Potlocka was there at the time as they were partners. If the video footage was accepted, then he was off campus without authority and his actions were serious misconduct. The respondent was entitled to make such a finding.

362 Mr Staal was subject to one allegation. Mr Newall claimed that video footage squarely puts him off campus while on duty. The allegation that the video had been tampered with had not been proven, nor had any evidence been put to support such a finding. Mr Staal was not co-operative during the interview. When given an opportunity to respond to the allegation, he had refused.

363 Mr Newall put that Mr Tupene's behaviour did not cast him in a good light. He admitted to being evasive. His partner had stated that the trip to the Chinese restaurant had nothing to do with an external patrol. Mr Tupene said otherwise. Mr Newall said that they both couldn't be right and as Mr Cook's evidence was an admission against his interest, it is more likely that he was telling the truth. There could be no doubt that Mr Tupene's actions could be characterised as serious misconduct.

364 Mr Newall submitted that in the circumstances, the respondent was entitled to find that the applicants' actions constituted serious misconduct and the applications should be dismissed. However, should the respondent's case fail, the Commission should have regard for the fact that reinstatement would be impractical. The applicants were not forthcoming and, in some cases, clearly hostile to the management. As a result there is a lack of confidence and given the high level of trust placed in security officers, it would be wrong to reinstate them to their former positions. See Hollingsworth v Police and Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.

365 In regard to a monetary remedy, Mr Newall submitted that the applicants failed to put matters before the Commission which are required in order for the Commission to exercise a discretion under s89(6) of the Act.

In reply

366 Ms Howell put that:

i. The respondent has not addressed the overwhelming majority of the matters put in the applicants' submissions.

ii. The respondent has simply ignored the overwhelming majority of the evidence in the proceedings.

iii. The respondent, having ignored the direct evidence of events, appeared to build its case almost entirely on the response of the applicants in the interview conducted by Mr Brown. This approach does not give the respondent any assistance whatsoever, particularly when the circumstances of those interviews is put into proper context.

iv. The respondent has not come close to discharging its onus of showing that Mr Staal and Mr Tupene were guilty of serious misconduct.

367 Ms Howell contended that there was no evidence to suggest that her clients wished to work straight through a 12 hour shift. Nor was there any basis to assert that they had waived their rights under the Award. Moreover, the respondent had the financial benefit of the arrangement to breach the Award for eight years.

368 Ms Howell submitted that the respondent did not squarely confront the evidence of custom and practice that security officers were permitted to go off site to obtain food during a shift. It was perfectly understandable that the applicants wouldn't have thought this to be an unauthorised absence. Indeed, the respondent deliberately withheld the details of the absences up to, and including the interview. It was also established that hospital staff did not know at any given time whether the security officers were on site or not. In any event, they were able to be contacted.

369 Mr Colgan would have been a critical witness particularly when four of the applicants alleged the fabrication of the evidence he had collected.

370 Ms Howell asserted that the test in this case was not whether the misconduct occurred but whether the dismissals were "harsh, unjust or unreasonable." This test involved a consideration of the respondent's conduct including its obligations under the Surveillance Act.

371 As to Mr Staal, Ms Howell emphasised that the video evidence would lend support to the assertion that the evidence had been fabricated. The respondent failed to take further steps to investigate Mr Staal's denials or the statutory declarations of the garage employees.

372 In respect to Mr Tupene, the allegations of attending to Domino's Pizza were based on hearsay. The allegation was totally unfounded. Mr Tupene admitted picking up Chinese food while on an external patrol. It was hardly a dismissible offence in circumstances where Mr Gladwell and the applicants claimed it was a custom and practice. Further, it was not true that Mr Tupene had not complained about the process of the inquiry.

373 The reasons for alleging a lack of confidence in Mr Staal and Mr Tupene (on the practicality of reinstatement) were self serving and should be given no weight.

374 I do not detail the Union's submission in reply as it was either supportive of Ms Howell's arguments or replicated what was put in its primary submissions.

CONSIDERATION

Out of Time Applications

375 Six of the nine applications were lodged outside the 21 day time limit imposed by s83(1) of the Act. The length of the delay varied from 17 days to 62 days. The six applicants were represented by the Union. Ordinarily, it could reasonably be expected that a Union, acting on behalf of dismissed members, would not jeopardise its members applications for unfair dismissal by failing to file the applications within the statutory time limit. See 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.

376 However, in this case, the Union argued that there were good reasons why it had not done so. It was said that the Union was attempting to resolve the matter through the intervention of the ('HAC') and the utilisation of the dispute resolution procedures under cl 26 of the Award. Under this clause, there is provision for the establishment of a Disputes Committee. The Union had informed the respondent that it would refrain from lodging unfair dismissal applications until the outcome of the Disputes Committee; reserving its right to lodge such application should that become necessary. I note the respondent did not concede it would accept the applications being filed out of time.

377 The Union submitted that while the respondent had agreed to establish a Disputes Committee, it refused to allow the Committee to address the issue of employees who had resigned. There was also a disagreement about the composition of the Committee. Further, the Union held the view that the conduct of the respondent was in conflict with its own procedures and it had used public monies for covert surveillance. These issues warranted the HAC's intervention in order to keep the matter from entering the public domain.

378 As a result of these concerns and the delay in resolving the matters, applications for unfair dismissal were ultimately lodged on 19 December 2002.

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.

380 The relevant legislative provision dealing with the Commission's discretionary powers to allow unfair dismissal applications to be filed out of time is found at s85(3) of the Act.

The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) the conduct of the employer relating to the dismissal.

381 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, the term "sufficient reason" is not defined in the Act - and for very good reasons. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 where a Full Commission observed at 190:

It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason".

See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121.

382 The Commission however, may be guided as to the matters to be taken into account, by specific reference to sub clauses (a), (b) and (c) of s85. It may be appropriate for an applicant to address each of the criteria in the sub clauses. However, for the Commission to be satisfied its discretion should be favorably exercised, requires a balancing of a range of considerations, including, but not limited to, the specific matters identified in s85(3)(a)(b)(c).

383 In a recent decision, Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139, the Full Bench of the Commission granted leave to appeal having being satisfied that the appeal raised important questions relating to the principles applicable in the determination of an application under s85(3) of the statute.

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".

385 It is relevant to note that in most applications under s85(3) (as was also the case in Hurrell), the Commission's discretion is exercised before the merits of the unfair dismissal claim are argued and decided.

386 In this case, however, the Commission has had the advantage of hearing and considering all the evidence and submissions concurrently with the jurisdictional questions. In view of my later findings, the question of whether the applicants have an arguable case obviously does not arise.

387 Logically then, the only conclusion the Commission can come to in order to ensure the requirements of justice are served is to exercise my discretion to allow all of the applications to be accepted "out of time."

388 In my view, this would be a sufficient reason on its own for the Commission's discretion to be favorably exercised. However, a number of other factors are pertinent to the conclusion I have reached on this subject.

389 Firstly, I accept the reason advanced by the Union for its delay in filing the application. By not filing the applications and seeking the intervention of the HAC the Union, correctly in my view, was seeking to conciliate an outcome which should have been self evident to any objective observer, let alone upon a proper interpretation of the unfair dismissal provisions of the Act.

390 Secondly, while the length of delay was significant in some cases - in three applications 59, 62 and 60 days - it was 17days for the other three. It would be unfair and unreasonable, in my opinion, to reject out of time applications for some applicants and accept others, purely on the basis that the lengths of delay were different. This is particularly so, having regard for the fact that all the applications concerned the same allegations and involved similar circumstances.

391 Thirdly, it is self evident from my later conclusions that all the applicants have suffered hardship and would suffer further hardship if their applications were not accepted out of time.

392 I accept Mr Newall's submission that it behoves a Union to ensure that it does not jeopardize a member's unfair dismissal claim by a late filing. However, even if the Union might be criticized for failing to file within 21 days, it would be a gross injustice for the applicants' claims not to be admitted in view of the degree of unfairness that I have found in respect to each of their dismissals. In other words, the failure of the Union should not be visited upon the applicants.

393 All the applicants were dismissed for alleged serious misconduct. While most of the applicants have secured alternative employment, the damage to their reputations would be, of itself, a sufficient basis for demonstrating the hardship they have faced, both personally and for their families. Their distress and shock at what had happened was all too evident to me from the compelling evidence they gave in the witness box. I refer to what I said in Hill and Department of Juvenile Justice [2000] NSWIRComm 128.

In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14:

It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee’s future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten, IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia, IRC5224 of 1998, 10 September 1999.

The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

394 As to any hardship visited upon the employer if the applications are accepted out of time, there is none. After all, the evidence had been prepared and filed, the proceedings were heard in full and the case had to be heard in any event for the three applicants who filed within time and about whom the facts and circumstances were no different to the others.

Constructive Dismissals

395 Three of the applicants, Messrs Cook, Harper and Mitchell, resigned from their employment in light of the investigation into the allegations against them. All three claim that they were forced to resign and their resignations constituted a constructive dismissal.

396 I shall deal with the resignations of each of the applicants and the evidence they gave about it.

Ron Harper

397 Mr Harper resigned in a letter to the respondent of 24 September 2002. The letter said inter alia:

I have your letter dated 23 September and confirm that your actions have forced me to tender my resignation this morning.

That action was not taken lightly. I believe that I have no alternative but to resign in view of the obvious and blatant campaign to terminate the employment of myself and other guards in your employ.

It is clear from your actions that I am not wanted in the Area Health Service's employ. I believe that I have been constructively dismissed and reserve my rights in that regard. This letter is forwarded to you to set the record straight and will be used in evidence should I bring a suit for constructive dismissal.

In his affidavit Mr Harper deposed at paras 12 to 15:

I had by then received on 23 September 2002 a copy of the "Executive Summary" recommending my termination. This was based on unsubstantiated allegations that had not been detailed or material revealed to me. (See copy marked Attachment 5 affixed to this affidavit.)

It seemed to me that Mr Brown and Mr Potts had seen whatever this material was, and for the first time it looked as if I had been followed at work in some way. By now I had no other thought than I was finished and was to be sacked by WSAHS.

In a panic, pushed onto base rates of pay during the investigation, and knowing that I was about to be sacked, I thought in my stressed state that I had no other alternative but to get in first and resign, which I did on 29 September 2002.

I had mistakenly thought that by doing this I might at least spare myself any further feelings of humiliation, anger and stress. It didn't, as I remain pretty angry about my treatment and how WSAHS seemed to be able to say they were going to sack me without me being able to defend myself properly.

Warren James Cook

398 Mr Cook's letter of resignation is brief and expressed as follows:

I Warren Cook, Employee Number 20750052 would like to give 1 weeks notice as of the 23rd September 2002 to cease my employment as Security Officer for W.S.A.H.S. I am giving my notice because of ill health such as stress, fatigue, family problems caused by the Allegations of Misconduct brought about by W.S.A.H.S.

In his affidavit Mr Cook Said:

On the 23 September 2002 I received by courier the document headed "Executive Brief". (Copy marked Attachment 5 affixed to this affidavit.) This document from the investigating officers from WSAHS recommended that I be terminated.

I couldn't believe it. Despite my excellent employment record, my compliance with policies and workplace practises, and that I had not received any information or documentation on what the allegations had been based, I was about to get sacked. It also seemed to come across as simply a way for WSAHS to get rid of a number of employees who may have been resisting change. I felt that I had been caught up in the wrong place at the wrong time.

Due to the stress, fatigue and problems that these allegations were causing me, and the fact that the writing was clearly on the wall, I felt I had no other choice but to resign.

I still do not know what these allegations were based on.

I was to be sacked for supposedly breaching policies and obligations by WSAHS who during the process had not followed what I believe are expected standards and procedures for investigating such complaints.

Paul Gordon Mitchell

399 Mr Mitchell's resignation was also in short form:

I Paul Gordon Mitchell wish to resign my position as a security Officer at Blacktown Mt Druitt Health, WSAHS giving you 1 weeks written notice. I would also like to say that I am signing this resignation under duress.

In his affidavit, Mr Mitchell deposed at paras 15 - 18:

Over the next week or so I felt the pressure building on me - both financially and that it looked to me that WSAHS was looking to get rid of us on things that were part of the usual work goings on. Somehow what was normally done had been described as something wrong that had left the Hospital in some danger. This was untrue.

Finally, on Thursday evening, 19 September 2002, I rang Mr Rokebauer and informed him that I had enough. I was worn out with worry and felt that I was about to get sacked. I told him that I felt I had been left no choice but to resign my position at the Hospital. On the next day, 20 September 2002, I went into the Hospital and handed my resignation to Mr Rokebauer. I gave one week notice. (Copy marked Attachment 5 and affixed to this Affidavit.)

On the 23 September 2002, I received a letter from the WSAHS with an attachment headed "Executive Brief" that contained a recommendation that my employment be terminated. (See copy marked Attachment 6 and affixed to this affidavit.) Sadly, I felt that this proved my feelings of helplessness.

The decision to terminate had been made without any real way for me to answer the allegations or see what information they had to support this decision. This was clear to me as I considered what choices, if any, I had. I truly felt that it was either jumping or be pushed. I still feel angry about how I was treated by WSAHS. There is no way that I should have been suspended and penalised on what I have seen.

400 The respondent maintained that the applicants resigned of their own accord so as to avoid being dismissed for misconduct. The principles governing what constitutes constructive dismissal have been authoritatively decided in many decisions of the Commission both at single member and Full Bench level.

401 The frequently cited authority is Allison v Bega Valley Council (1995) 63 IR 68 where a Full Bench of the Commission said at pp 72 and 73:

It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and willful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning

In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.

Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.

402 By its very nature a forced resignation will invariably be found to be a termination of employment at the initiative of the employer; thus meeting the test, in my opinion, of what constitutes a constructive dismissal. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, St Vincents Hospital Sydney Limited v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999, Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 and Police Service of New South Wales v Batton (2000) 98 IR 154.

403 To these authorities may be added the weight of a recent Full Bench decision reaffirming the principles discussed in Allison. In Ward v Mobile Innovations [2002] NSWIRComm 287 the Full Bench made these observations at para 4:

The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment. Each such inquiry must relate to the facts and circumstances of a particular case. This matters represents no exception in this respect.

And at para [6] said:

It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison.

404 I have also found the comments of Macken J in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 at 393 to be particularly apposite in this case:

Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal.

Reference is also made to Essential Personnel Pty Ltd v Wray (1996) 70 IR 109, where the Full Bench stated at 114:

That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.

405 In light of the evidence of the employees and by the express wording of their resignation letters, I have no doubt that the applicants, Messrs Harper, Mitchell and Cook were forced to resign. This finding is fortified by the following observations.

406 It would seem incontrovertible that had the three applicants not resigned that they too would have been dismissed. After all, they were said to be guilty of identical allegations to those employees who were subsequently dismissed. All had been recommended for dismissal by the interview panel. In other words the choice they made to resign was no free choice at all - it was Hobson's choice.

407 In this regard I have found particularly apposite the comments of Olsson P, in Roberts v Prince Alfred Hospital (1979) 46 SAIR 598, where his Honour stated at p617:

There is no doubt, as Mr Bollen, QC for the respondent suggested, that in tendering his resignation the applicant meant what he said. But in substance and in fact he had no real choice in the matter. The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded him by the respondent; so as to minimise the prejudice to him in obtaining other employment later on.

Viewed realistically, the applicant was in exactly the same position as at the time when he tendered his resignation as he would have been if the employer had said to him "We will dismiss you if you do not resign of your own accord". The fact that the act of resignation subsumed the act of dismissal does not alter the essential character of the transactions between the parties. By virtue of the implicit waiver of the original act of formal dismissal by the employer, the applicant was, in reality, in a position in which he had resigned because he had been given virtually no option but to do so - on pain of the formal dismissal remaining in force and acting to his prejudice at a later point of time.

For these reasons I am compelled to the view that, at the time at which his employment was terminated, the applicant was constructively dismissed by the respondent. Accordingly, section 15(1)(e) has potential room to operate.

408 I also refer to the decision of Connor, C in Coghlan v Donald and Donald Advertising (unreported, Connor C, IRC01/6028, 15 July 2002) at p 6 and 7:

There are two interpretations which may be placed on the uncontested evidence in this hearing. On the one hand, if an employee, in full knowledge of an allegation levelled against him, chooses to adopt the option of resigning which the employer holds out to him as a concession, there would be no dismissal, construction or otherwise. In Roberts v Prince Alfred College (1979) 46 SAIR 598 Olsson P of the South Austrlian Industrial Court summarised the situation (at p.617) as follows:

"...The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded (by the employer) so as to minimise the prejudice to (the employee) in obtaining other employment..."

On the other had, if the employee, confused and relatively powerless against an employer, is ambushed into resigning because he believed that he had no real choice in the matter, the purported resignation is not one in fact because of the threat of duress directed against him. It does not represent his true intentions. In such a situation the actual termination of his services is, constructively, a dismissal. Whilst the termination of employment was in form a resignation, the force applied to him made it a dismissal in fact [Achal v Electrolux Pty Limited (1993) 50 IR 236 at p.238]

409 I have no doubt that in this case the respondent would have dismissed the applicants had they not resigned. That being so, it must obviously result in a finding that the applicants, Messrs Harper, Cook and Mitchell were constructively dismissed such as to enliven the jurisdiction of the Commission under Pt 6 ch 2 of the Act. I determine accordingly.

Meaning of 'harsh, unreasonable and unjust'

410 I turn now to consider the general principles underpinning the scheme of the Act's unfair dismissal jurisdiction. As a convenient starting point it can be said that there is a long line of settled authority, which has considered the principles the Commission should apply when dealing with unfair dismissal applications. For a useful history, see Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1.

411 The relevant statutory instruction under the 1996 Act, is whether such a dismissal is "harsh, unreasonable or unjust". One can consider the ordinary meaning of these words, how they are applied in an industrial context and how they might be applicable to a particular set of facts and circumstances. It is to be noted that each adjective is capable of discrete interpretation. However, in one elegantly put phrase, the words, when taken together, have been said to be a "tautological trinity", see Davies & Anor v General Transport (1967) 67 AR 371.

412 To demonstrate their independent standing, I refer to the dictionary definition of the terms, from both the Macquarie and Concise Oxford Dictionaries:

The Macquarie Dictionary defines the terms thus:

HARSH: ungentle and unpleasant in action or effect;

UNREASONABLE: not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement;

UNJUST: not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions.

and the Concise Oxford Dictionary records as follows:

HARSH: ..repugnant to feelings or judgment; cruel, unfeeling;

UNREASONABLE: Not reasonable; going beyond the limits

of what is reasonable or equitable;

UNJUST: Not just, contrary to justice or fairness.

413 In an industrial context, an oft repeated passage from Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at 465 is pertinent:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

414 In Parker v Capitol Painters & Decorators Pty Ltd, (1996) 68 IR 100 at 104, Connor C used not dissimilar expressions:

HARSH: too severe, having regard to all the circumstances.

UNREASONABLE: immoderate, excessive or extravagant.

UNJUST: unfair, inequitable, undeserved or biased.

415 These definitions lead to the next observation: a particular dismissal might be found to fit the definition of only one of the adjectives, two of them or all three. A recent Full Bench authority for this proposition is to be found in Bankstown City Council v Paris (1999) 93 IR 209. The Full Bench said at p212:

The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specifity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

See also Outboard World Ltd v Muir (1993) 51 IR 167 and my discussion in Police Association of New South Wales, on behalf of Adam Tregonning and New South Wales Police Service, (unreported) Matter 2799 of 1999, 8 March 2000, and Herson v One.Tel (unreported) Matter 5181 of 1998, 18 February 2000.

416 All of the applicants, including those who resigned, may be properly regarded as being summarily dismissed for serious misconduct. In determining whether the applicants' dismissals were harsh, unreasonable or unjust in this context the Commission should have regard to a number of relevant considerations.

417 Firstly, whether the alleged serious misconduct has been proven to the requisite standard; that is on the balance of probabilities. Secondly, if the serious misconduct is proven, whether the seriousness of the conduct justified dismissal. Thirdly, whether the conduct of the employees amounted to a fundamental and wilful breach of their contracts of employment. Fourthly, whether other mitigating factors should be taken into account, such as the employee's work record, length of service, age and contrition.

Was the misconduct proven?

418 All the applicants readily acknowledged that they were off the campus at particular times without authority and without recording the absence in the logbook. It is fair to say however, that in some instances, the actual absence giving rise to a particular allegation may have been disputed. That however, is not materially relevant for the purposes of deciding whether the conduct as alleged had been committed. All the applicants have, of course, strongly disputed that their conduct amounted to misconduct, let alone serious misconduct warranting dismissal. I shall return to this contention shortly.

419 Thus it seems to me that this is not a case where the Commission is required to determine whether the conduct complained about actually occurred. Rather the focus of the applicants' cases is that, to the extent that they may have unwittingly done anything wrong, the penalty of a summary dismissal was a gross overreaction and constituted an unfair dismissal.

420 Summary dismissal can have serious implications for an employee. It is for this reason that the Full Bench in Franklins Limited v Webb, reminded employers of the need to be fully satisfied that the misconduct had been committed and justified dismissal. The Full Bench said at p261

We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

See also my comments in Standley v Electronics Boutique Pty Ltd and Hill v Department of Juvenile Justice at para 27.

Repudiation of the employment contract

421 All of the allegations against the applicants were described as serious misconduct; the additional word "wilful" was not used. However in my opinion, where an employee has been dismissed for serious misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee and must disclose a wilful and deliberate intent by the employee.

422 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the employees? To answer this question I refer to three authorities:

In North v Television Corporation Ltd (1976) 11 ALR where Franki J, said at p616:

It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful":

... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288).

Hungerford J in Day v Lumley Life (1999) 90 IR 70, describes the employment relationship as a serious contractual relationship involving rights and obligations on both sides:

The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 and Hunt v Hornsby Shire Council [2001] NSWIRComm 242.

Mitigating factors

423 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972):

The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.

424 Of course, it is equally true that taking into account past performance works both ways. That is, it would be wrong for an employer to ignore an employee's otherwise exemplary record when weighing up all the factors in its decision to dismiss. I adopt the words of McLeay C in Paris v Bankstown City Council [1999] NSWIRComm 10:

It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is as unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct.

425 That is not to say that an unblemished record would mitigate completely against a particular act of serious misconduct. Each case will turn on its own facts and the gravity of the misconduct. Nevertheless, it is a factor, which might tip a dismissal either way if the decision is finely balanced. It follows therefore, that an employer should be cognisant of, and give appropriate weight to the employee's past record of employment, having regard for the seriousness of the misconduct.

CONCLUSIONS

426 At the outset of the Commission's consideration of these matters, I should say that the respondent's evidentiary case suffered from two serious deficiencies.

427 The first concerned the failure of the respondent to call evidence from Mr Rokebauer, the applicants' direct supervisor at the relevant time. In my judgement, Mr Rokebauer would have been perfectly placed to give evidence about whether a "custom and practice" existed for security officers to pick up a meal while on external patrol. It would be extraordinary if the applicants direct supervisor didn't know what was going on. Having not called Mr Rokebauer I am satisfied that a Jones v Dunkel inference is open in that Mr Rokebauer's evidence would not have assisted the respondent's case.

428 Secondly, notwithstanding the comprehensive steps taken by the respondent to have the two surveillance agents available to give oral evidence (including the serving of subpoenas), both agents failed to attend the proceedings.

429 It is demonstrably clear that the evidence of the two agents was not merely peripheral to the respondent's evidentiary case such as to warrant their involvement being put to one side. The agents' evidence was crucial to the decision making process of the respondent. I interpose to note that amazingly, Mr Brown did not even interview the agents during the investigation.

430 There were some very obvious conflicts in the video evidence and the agents' contemporaneous notes. The video evidence itself raised a number of questions; some of which I would have liked to have explained by the agents. Unfortunately, that was not to be the case.

431 Having said that and as I will later develop, I am deeply troubled by the video evidence. I have not been assisted in reconciling my doubts due to the agent's failure to give evidence in the proceedings.

432 There can be no doubt, that it would have been plainly obvious what the applicants were doing off the hospital campus when it was alleged. They were for the most part picking up a pre-ordered meal. The times off site average between 10 and 20 minutes and no more than 30 minutes. The majority of the time off site was while performing external patrols. In other words, the real extent of their indiscretion was likely to be two or three minutes.

433 From the evidence before me, I am comfortably satisfied that there was an established practise for security officers to leave the premises to pick up meals. All of the applicants gave evidence to this effect. I accept this evidence. Mr Gladwell, formerly an acting manager, gave evidence that it was an accepted practice when he was a supervisor. On the other hand, there was no evidence that any employee was told in writing or verbally that such a practice was not permitted or that it should cease forthwith. Mr Bright said he relied on a statutory declaration from Mr O'Sullivan in which it was said the officers knew they were not to be off site unless in the circumstances described in 1999 and 2000 memos. Two things may be said about this evidence. Firstly, the statutory declaration does not address the specific question of whether a custom and practice existed of picking up a meal while on patrol. Secondly, Mr O'Sullivan was not called to give evidence about the matter. Indeed, not one of the applicants' direct supervisors (except for Mr Gladwell) was called to give evidence.

434 In so finding, the Commission of course, does not condone the practise or underestimate the serious implications or the risk posed by the practice. While it is not clear how long the practice had existed, it is reasonable to assume I think, that the practice may have emerged when the twelve hour shift system was introduced in 1995. As a result of the new shift system, it was established by the evidence that there were no fixed meal breaks; officers took their meals when convenient, while at all times remaining on call. It is axiomatic that such arrangements were of significant benefit to the respondent's staffing costs.

435 In my judgement, it simply beggars belief that management was unaware of the custom and practice. I reject the evidence (such as it was) that it was unaware of the practice. Moreover, there was no attempt by the security officers to conceal what they were doing. Indeed, there was evidence that on some occasions on duty security officers picked up personal items from local shops for senior hospital employees. (See the evidence of Mr Gladwell)

436 In view of these circumstances, I find that management was aware of, accepted and condoned the practice. The principle of condonation was considered in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 where the Full Bench said at p 344:

In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed Australasian Transport Officers' Association v Department of Motor Transport (1988) 25 IR at 235 and 244, "the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission".

That principle has, in my view, relevant application here. The respondent effectively waived its right to dismiss the applicants for serious misconduct.

437 Further, I can find no basis for any suggestion that the applicants were wilfully in breach of their contracts of employment. As I said earlier there was no evidence that the applicants were secretly or covertly leaving the hospital grounds. They were in uniform and in full view of anyone who may have been around (and in fact were). It was a gross overreaction to claim, as Mr Lingard did, that the applicants had abandoned their post.

438 There was another matter which gave me serious concern. The full details of the allegations were not put to the applicants at the first disciplinary interview. Admittedly, the allegations were put with more specificity in the second letter and in the second interview; for example, being seen at the Chinese restaurant. At first the applicants did not acknowledge where they were. They simply asked for the evidence to be produced.

439 It seems to me that it would have been reasonable for the employees to be told precisely where they were accused of being. I don’t understand why it wasn't. Initially, they did not volunteer the reason, as Mr Prosser said, because it was common practice to do so and he couldn't see how that could be viewed as misconduct. He didn't know where he was accused of being.

440 If the respondent had a suspicion as to what it suspected of going on, it had, in my opinion, an obligation to put the allegations fairly and squarely to the applicants. It failed to do so. Mr Brown acknowledged that the full details of the allegations should have been provided. Mr Harper actually asked in his first disciplinary interview "where did I go?" The reply was simply do you agree or disagree (that you were off site)? This style of inquisition was, in my view, grossly unfair and confusing. It was designed to trick, or at the very least to confuse the applicants. This issue also goes to considerations of procedural fairness, to which I will return later.

441 Unfortunately, as the chain of events unfolded, the applicants became their own worst enemies. It would appear the applicants may well have panicked and decided, either collectively or independently, to frustrate the disciplinary process. If it was Mr Buckley's advice at the meeting at McDonalds to frustrate the process, as I suspect, then such advice was foolish and misguided. Understandably this only antagonised the respondent. By not co-operating, the applicants may well have contributed to the employer's belief that there was a serious and wilful breach of policy.

442 The applicants' panic may well have been compounded by the evidence of suspicious phone calls and of unknown persons following them whilst on duty. I note that at least two of the applicants reported suspicious incidents (5 September incident report) well before they had been informed of the allegations.

443 With hindsight of course the applicants would have been far better off to have said something like, "yes we were off site - getting a meal. We have all been doing it for some time. It will not happen again." This defence only came much later in the investigation. Had this been explained from the outset, the respondent might well have reacted very differently. It would have been sufficient, in my view, for warnings to be given that any further incident would result in consideration of dismissal.

444 However, by compounding the problem and refusing to co-operate with the investigation, the applicants opened themselves up to serious disciplinary action. As I said in the earlier cited authorities, the consequences of their actions have had serious implications for their personal well being and for their families.

445 The seriousness of the allegations needs to be objectively measured against what was actually relied upon by the respondent for the dismissals. The letters make it very clear. It involved two or three occasions being off site for between 10 and 20 minutes (in Mr Prosser's and Mr Staal's cases only one incident). Even accepting it was custom and practise to purchase a meal off site, there was no evidence that it was a regular practice.

446 On the other hand, it is clear on the evidence, that the security officers were permitted to be off site for official purposes - filling the vehicle with petrol or perimeter patrols are two such examples. It was curious that Mr Brown wasn't aware of this during the initial stages of the investigation. It must be understood that the same concerns of the respondent would logically apply in these circumstances as they would if the officer was off site purchasing a meal. I note that it is not strictly true to say that the security of the hospital was compromised when the officers were purchasing a meal. Whenever they were off site, they remained in communication with the hospital by three means, two way radio, pager and phone.

447 Mr Lingard gave evidence that it was more important to get evidence against the applicants (by conducting the surveillance off site for over two months) than it was to ensure the patients, staff and visitors were not put at risk (by their absence off site). This was an amazing proposition. The following question and answer of Mr Lingard is particularly instructive:

Q. In the interests of collecting evidence you thought you would leave the safety of patients and staff at risk?

A. Yes (Tp.44)

448 Similarly, Mr Bright gave evidence that he was prepared to let a serious safety concern go unattended while the investigation was commenced and undertaken. I was flabbergasted by this admission. It seems to me that the respondent was more preoccupied with catching the security officers red handed than it was to ensuring the safety of patients, staff and visitors.

449 In my view there is a real question that the respondent itself compromised the safety of patients, staff and visitors. Mr Bright said that the actions of the officers may well have resulted in the respondent being prosecuted under the Occupational Health and Safety Act. That may well be so. However, the respondent condoned the practice in order to obtain its evidence. This too might well be regarded as a breach of the Occupational Health And Safety Act.

450 Of course, the real issue for the respondent was not that the officer was off site, but rather that the officer was off site without authority or without informing a hospital employee he would be doing so. This does not sit comfortably with the evidence that it was not practice to advise a hospital employee on every occasion when officers were patrolling off the site or filling the vehicle with petrol.

Failure to fill running sheets

451 This last point raises the secondary allegations that the officers had failed to record absences in the occurrence logbook or the motor vehicle running sheets. The evidence made obvious that expressions in the occurrences log book such as "external hospital patrol" or "hospital patrol" did not specifically detail where or what the officers were doing. The preponderance of evidence from the applicants was that the occurrence log would usually be filled in when convenient.

452 The motor vehicle running sheets were even less specific - usually citing the notation "on security patrol." It is plain there was no requirement to record occasions when the vehicles were refuelled off site. The evidence of the employees was that the vehicle running sheets were invariably filled in at the start and finish of each shift. Perhaps in hindsight, the officers should have recorded something like "external patrol and picked up meal."

453 All of the applicants appeared to me be honest, hardworking and decent employees. The majority had unblemished records. For example, Mr Harper, had five years unblemished service. The fact that most of the applicants have secured and retained alternative employment in the security industry is indicative of these observations.

454 For the applicants' summary dismissal in these circumstances, believing as they did that they had done nothing wrong, was devastating. As I said earlier, I can well understand why at least three of the applicants chose to resign to avoid summary dismissal.

455 However, if their only crime was obtaining meals off site and returning with the meals in accordance with custom and practice, I cannot accept that this constituted 'wilful' misconduct warranting summary dismissal. I note that it was Mr Lingard and Mr Bright's evidence that they agreed with the assumption that if the applicants genuinely believed there was such a custom and practice it would have been unfair to sack them.

456 As I said earlier, their misdemeanour was compounded by their subsequent uncooperative responses.

The Video Surveillance

457 It must be said without equivocation that the engagement of Websters to conduct the video surveillance came about in curious and unusual circumstances. There was no tender put out for the contract. There was no written brief given to Websters. Mr Bright described this as not normal practice. There appeared to be no budget proposed for the work. It was unclear whether the respondent gave specific authority for video surveillance as distinct to surveillance generally.

458 Mr Bright gave evidence that he believed the surveillance was undertaken at large and did not target particular individuals. However, in Websters' letter dated 17 July it quotes Ms Shaw as informing them that she had identified the officers suspected to be involved and that Websters intended to prioritise these officers for attention. Indeed, Mr Mailey recalled that Ms Shaw had "starred" the names of the officers to be observed on the roster.

459 I find the engagement of Websters to be highly suspect and certainly outside any acceptable standards for the expenditure of public monies. It is a matter which should be brought to the attention of the appropriate authorities.

460 Ms Howell argued that the real and unstated motivation for the respondent to dismiss the nine applicants was that they were troublemakers whom the respondent wanted to get rid of. I note that as early as 2 July 2002, after talking to Ms Shaw, Mr Mailey referred to the officers as "these hardliners." I should say, for my own part, if this was the real motivation the respondent went to an enormous amount of trouble and expense to do so. On Ms Howell's submission this would have involved an elaborate conspiracy, which included the "doctoring" of videotapes and collaboration between management personnel to knowingly provide false evidence.

461 The respondent had cause to have the video tape examined to establish if it had been altered or tampered with. It was Mr Bright's evidence that he received a report (Ex "V') which disclosed that the tape had not been "altered or changed in any way." I find it highly unlikely that Websters would have its own video independently tested to prove whether it had been "doctored". It is inconceivable that Websters would give the respondent a report which had found the video was not authentic or had been tampered with.

462 In my opinion, the conclusions of Mr Mailey in his report dated 27 August 2002 went well beyond an objective assessment of the surveillance undertaken by his firm. He referred to the various incidents that were observed as "gross misconduct" and "it is our opinion that there are corrupt practices by security officers on the Blacktown site” (my emphasis).

463 Putting to one side whether Mr Mailey has any expertise to draw such conclusions, in my judgement a surveillance operation should only report what it observes, not make subjective conclusions as to whether a particular activity constituted gross misconduct or corrupt practices. These comments were most improper and unprofessional. I note again also that Mr Mailey in a letter to Mr Lingard of 2 July 2002, referred to the security officers as "these hardliners." This was hardly an appropriate comment for a person commissioned to conduct an independent investigation.

464 Mr Mailey said Mr Colgan was the best surveillance operator in New South Wales. For my part, from what I have learnt in this case, I shudder to think what the rest of the industry is like. The surveillance was clumsy, incomplete, inaccurate and had the hallmarks of a Keystone Cops episode.

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.

9. The photo of Mr Prosser and his offsider Mr Stickens collecting Chinese food on 22 August discloses a time of 21:00 hours, yet they are accused of being off site from 8.37 to 9.07pm. The surveillance reports refer to the officers doing a slow patrol along the perimeter fence until collecting the Chinese food at 21:00. Put correctly, then the officers were obtaining a meal and returning to the hospital in the space of a few minutes - not 50 minutes.

10. The same video tape and still photo of 22 August shows Mr Prosser and Mr Stickens arriving back at the hospital with the Chinese food at 21.00. The surveillance agents' contemporaneous notes say they arrived seven minutes later - a strangely long discrepancy.

11. Mr Tupene and Mr Nagy were alleged to be off site from 11.35 to 11.50pm on 26 July. However, the agents' own notes show a hospital patrol commencing at 11.35pm. In other words, for at least part of that time it was an authorised patrol.

12. There was an allegation that Mr Stickens was observed from the ground in Ms Shaws' office accessing her computer. On the inspection of the grounds it would appear to have been unlikely to see what a person was doing from that angle; let alone being able to conclusively determine who it was.

13. At no stage in the evidence, until Mr Mailey casually offered the information in his evidence on 23 October 2003, was it revealed that the surveillance agents were a father and son team. I am not sure whether much turns on it, but it does seem rather curious that this fact was revealed so late in the proceedings.

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."

Workplace Video Surveillance Act 1998

466 There can be absolutely no quibble with the fact that covert video surveillance was conducted outside the specifications ordered by the Magistrate on 21 August, 2002 and in breach of the Surveillance Act. I attach the order as Annexure B. At least four breaches can be identified.

467 Firstly, the conditions specified the covert surveillance was to only occur between 6.00pm on 21 August to 20 September 2002. The evidence before the Commission made clear that the bulk of the covert surveillance had been completed prior to the 20 August.

468 Secondly, the specification identified that the covert surveillance was to be limited to the surveillance of security officers "during their attendance in the staff car park areas." Clearly, the video surveillance as shown during these proceedings extended well beyond the staff car park areas. Indeed, Mr Mailey did not believe that a court order was necessary for video surveillance in public car parks on hospital grounds. This was plainly wrong (which he later conceded).

469 Thirdly, the video was not provided to the employees within a reasonable period after being requested by them.

470 Fourthly, no report on the results of the surveillance was prepared for the Magistrate as required by s23 of the Act.

471 The Labor Council of New South Wales was granted leave to intervene in the proceedings to put submissions on serious concerns it had in respect to the covert video surveillance and compliance with the Act. For my own part I share these concerns. Accordingly, I direct the Registrar to forward a copy of this decision to the HAC, 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.

Procedural Fairness

472 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench said at para 118:

This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

473 These observations are unremarkable and merely reflect the statutory instruction found at s88 of the Act and the relevant authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether,

(i) a reason for dismissal was given.

(ii) any reason given had a basis in fact.

(iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior.

(iv) any warning of unsatisfactory performance was given.

(v) the applicant sought but was refused reinstatement or reemployment.

It is important to note that the Commission may take other matters into account which it considers relevant (s88(f)).

474 In Byrne & Anor v Australian Airlines, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

475 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418:

Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales, Buckman v Burdekin; and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

476 I turn then to the process applied by the respondent in dismissing the applicants. The respondent's disciplinary procedure is annexed to this decision as Annexure C.

477 In my judgement, the investigating process suffered from a grievous and fundamental flaw. It was only after the first disciplinary meeting that the applicants were expressly told of what they were alleged to have done. It was insufficient, in my opinion, to accuse the applicants of being off site without telling them where they were alleged to have been. This must be particularly so having regard for the fact that the respondent knew where they were, and from what we now know, (which Mr Brown didn't at the time) that security officers could be off site for legitimate reasons.

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.

479 Accordingly, I am well satisfied that the respondent took no account of each of the applicants' degree of misconduct (assuming it can be so described), their work record or personal circumstances. In the result, a "one size fits all" approach impugned the process and rendered nugatory the decision to terminate the applicants' employment.

480 A number of the applicants gave evidence that they had never seen the Health Service policies which had been relied upon to dismiss them. Indeed, the policies pre-dated the employment of some of the applicants. During the disciplinary interview, Mr Brown did not put to any of the employees whether they had seen or were aware of the policies. There was no evidence that the applicants were provided with the policies or were aware of them. Some reliance was placed on a distribution list for the policies. Names on a distribution list prove nothing other than the list exists. There was no evidence that any of the applicants signed for the documents which would have disclosed receipt of them.

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.

482 For the aforementioned reasons the Commission is well satisfied that the dismissals of the applicants were both substantively and procedurally unfair as to warrant a finding that the dismissals were 'harsh, unreasonable and unjust' within the meaning of Pt 6 ch 2 of the Act. I find accordingly.

Appropriate Relief

483 It needs to be stressed that the statutory emphasis and policy intent of the Act is directed towards the reinstatement of an unfairly dismissed employee. It is only when the Commission makes a finding of the impracticality of reinstatement, that consideration may be given to ordering compensation pursuant to s89(5) of the Act.

484 The Commission, of course, takes into account the views of the parties, most particularly where an employee does not seek to be reinstated. Such a view is often perfectly understandable, particularly if the employee has found alternative employment.

485 Mere discomfort for the employer, however, is not sufficient to establish the impracticability of reinstatement. I have had regard for what was said in Perkins v Grace Worldwide and applied in Hollingsworth v Police Commissioner (No.2) (1999) 88 IR 282 at 341 as to the practicality of reinstatement:

Finally on this aspect of the practicability of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows:

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

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.

486 All of the applicants seek reinstatement. I am mindful that the reinstatement of nine dismissed employees will no doubt create some real operational difficulties, not just inconvenience for the respondent. However, that will likely be the situation to varying degrees in all cases where the Commission orders reinstatement. However, to my mind, the operational difficulties are far outweighed by the demands of this case to ensure the unfairly dismissed employees are afforded justice.

487 It is also pertinent to take account of the obvious fact that the respondent is a large employer. Moreover, there were no grounds for the Commission to conclude that there was a breakdown in the relationship between the applicants and their direct supervisors. The evidence, which seems perfectly logical, was that the security officers would rarely have contact with Ms Shaw, Mr Lingard or Mr Potts and probably none at all with Mr Brown and Mr Bright.

488 Accordingly, I find that reinstatement would not be impractical. I propose to make orders accordingly.

489 In respect to orders for lost remuneration, I note that all the applicants have secured alternative employment.

490 In view of all the circumstances, I propose to make orders pursuant to s89(3) for all the applicants (except Mr Potlocka and Mr Prosser) to be paid lost remuneration from 1 January 2003 less any remuneration earned from that date to the date of reinstatement. Mr Potlocka's and Mr Prosser's circumstances require that lost remuneration be paid from the date of dismissal i.e. 11 November 2002. Mr Potlocka had co-operated with the investigation and Mr Prosser had been found to have had a plausible explanation for a single absence off site. The parties are directed to confer as to appropriate amounts to be paid in light of this order. Liberty to apply is available in the event of any disagreement.

ORDERS

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.

Peter J Sams AM

Deputy President

LAST UPDATED: 10/03/2004