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Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029 (22 June 2011)

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Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029 (22 June 2011)

Last Updated: 21 July 2011

Industrial Relations Commission

New South Wales

Case Title:	Dimovski v South Eastern Sydney and Illawarra Area Health Service

Medium Neutral Citation:	[2011] NSWIRComm 1029

Hearing Date(s):	19 April 2011, 21 April 2011

Decision Date:	22 June 2011

Jurisdiction:	Industrial Relations Commission

Before:	Lynch C

Decision:	Unfair dismissal application

Catchwords:	UNFAIR DISMISSAL APPLICATION - one allegation that the applicant acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Joseph Demiglio - disciplinary investigation undertaken - one allegation sustained - dismissal of applicant - unblemished 22 years work record - issues of procedural fairness raised - reinstatement sought - onus and burden of proof tests applicable - one allegation sustained on balance of probabilities - serious misconduct found - no procedural fairness issues to warrant intervention - dismissal not unjust or unreasonable in all of the circumstances - dismissal harsh in all of the circumstances - orders that the applicant be re-employed as a Security Officer not as a Senior Security Officer at another Hospital other than St George Public Hospital.

Legislation Cited:	Industrial Relations Act 1996 Public Interest Disclosure Act 1994

Cases Cited:	Australian Services Union of NSW v Sydney Water Corporation [2008] NSWIRComm 1064 Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Budlong v NCR Australia [2006] NSWIRComm 288 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Franklins Limited v Webb (1996) 72 IR 257 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 New South Wales Attorney-General's Department v Miller [2007] NSWIRComm 33 New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Perkins v Grace World Wide (Aust) Pty Ltd 72 IR 186 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273

Texts Cited:

Category:	Principal judgment

Parties:	Jorge Dimovski (Applicant) South Eastern Sydney and Illawarra Area Health Service (Respondent)

Representation

- Counsel:

- Solicitors:	Mr D Mahendra (Applicant) Ms G Gowland (Respondent)

File number(s):	IRC 1309 of 2010

Publication Restriction:

DECISION

Introduction

Mr Jorgo Dimovski lodged an application for relief from unfair dismissal under section 84 of the Industrial Relations Act 1996 ("the Act").

The application was made against South Eastern Sydney and Illawarra Area Health Service ("SESI Area Health Service") in relation to its dismissal of Mr Dimovski on 26 October 2010. Mr Dimovski's application primarily sought reinstatement in relation to the dismissal.

A conciliation conference was conducted by Ritchie C on 7 December 2010. The parties did not settle the matter and the standard directions were made to prepare and list the application for hearing.

The application was heard in Sydney on 19 - 21 April 2011. At the hearing Mr Dimovski was represented by Mr D Mahendra, of Counsel, instructed by Mr T Cain of Cain, Kensit and Messenger, Solicitors. The SESI Area Health Service was represented by Ms G Gowland, Solicitor of Bartier Perry Solicitors.

At the hearing for the applicant, Mr Mahendra called the following witnesses:

Jorgo Dimovski - the applicant, Senior Security Officer

David Kotevski - formerly a Security Officer

Mladen Mofardin - Security Officer

Toni Anevski - Security Officer

These witnesses are employed by the St George Public Hospital. David Kotevski was employed by the St George Public Hospital until 23 July 2010.

At the hearing for the respondent, Ms Gowland called the following witnesses:

Steven Townarnicki - acting Human Resource Manager

Lynette McCamley - formerly a Senior Security Officer

Arthur Vay - Security Officer

Ray Andraos - Security Manager

Petro Calligas - Senior Security Officer

Lindsay Robinson - formerly a Security officer

Nick Skleparis - Corporate Services Manager.

These witnesses are employed by the St George Public Hospital. Lynette McCamley was employed as a Senior Security Officer by the St George Public Hospital between 2000 and September 2009. Between April 2008 and February 2009 she was seconded to the Fire Safety Department. Lindsay Robinson was employed as a Security Officer by the St George Public Hospital between February 2009 and mid 2010.

At the completion of the hearing the Commission reserved its decision.

Background

Mr Dimovski has been employed by the SESI Area Health Service since 11 March 1988. He is employed as a Senior Security Officer.

The events leading to Mr Dimovski's dismissal began with a formal complaint by another Security Officer, Mr Anevski, against then acting Security Operation Manager, Mr Demiglio.

In the course of that investigation, Mr Calligas told investigators that in the months prior to February 2009, Mr Dimovski had told him that if the Security Officers put in enough complaints against Mr Demiglio his position would not be made permanent. He also claimed that Mr Dimovski called Mr Demiglio a "poof", "faggot" and "cock breath" at work.

Mr Anevski's formal complaint of sexual harassment against Mr Demiglio was found to be unsubstantiated. Mr Anevski asked to have the finding reviewed by the Area's Professional Practice Unit ("PPU").

In the course of that review the PPU recommended that an External Investigator be appointed to investigate Mr Calligas' allegations about Mr Dimovski.

Because PPU had raised the possibility of Mr Calligas' complaint involving allegations of corruption, both Mr Calligas' and Mr Vay's complaints were treated as protected disclosures under the Protected Disclosure Act 1994.

In September 2009 an External Investigator was engaged to investigate Mr Calligas' and Mr Vay's complaints against Mr Dimovski.

In his executive summary, the External Investigator found that Mr Dimovski had acted in a derogatory manner, and spoke words of insult regarding the Security Operations Manager, Mr Demiglio with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demiglio from his position in an improper (unlawful) way. Mr Dimovski was also found to have breached the NSW Health Code Conduct and he failed in Key Performance Areas/Duties as set out in the Position Description of a Senior Security Officer and he may well have acted corruptly as defined by the Independent Commission Against Corruption Act 1988.

On 9 July 2010 Mr Dimovski received a show cause letter from Mr Terry Clout, the Chief Executive of the SESI Area Health Service. That letter read in part:

"The allegations relate to your inappropriate behaviour.

Allegation One That you acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Joseph Demiglio.

Evidence and Analysis

There is evidence that you have acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Mr Joseph Demiglio with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demiglio from his position in an improper (unlawful) way".

Mr Dimovski was asked by Mr Clout to show cause within 7 days in writing as to why his contract of employment should not be terminated.

On 12 July 2010 Mr Dimovski received a letter from Ms Whitehurst, the General Manager of the Central Hospital Network, SESI Area Health Service. This letter advised Mr Dimovski that he was suspended with pay effective from 26 July 2010.

Mr Dimovski replied to the letter from Mr Clout on 26 July 2010. He denied the allegation made against him.

On 26 October 2010 Mr Dimovski's employment was terminated effective from this date and he was paid one weeks salary in lieu of notice.

EVIDENCE

Mr Dimovski

Mr Dimovski in his two Statements dated 31 December 2010 and 8 February 2011 (Exhibit 1) stated as follows:

Statement of 31 December 2010

Mr Dimovski never encouraged anyone to write false statements and the only person that he has known to encourage others to write false statements against others was the former acting Security Manager, Mr John Hugon.

Mr Dimovski had never been a party to any conspiracy or plot to remove Mr Demiglio from his position nor has he ever intentionally made any inappropriate or disrespectful comments about Mr Demiglio.

It is his personal belief that he has become the victim of an organised and systematic program of discrimination aimed at removing him from his position of employment within the hospital. He also believed that the Security Manager, Mr Andraos, Corporate Manager, Mr Skleparis, Operations Manager, Mr Demiglio, and former Acting Security Manager, Mr Hugon encouraged Security Officers Mr Calligas and others to provide written fabricated statements against him under the Protected Disclosure Act 1994. He believes that their sole intention was to illegally and unfairly remove him from his position of employment.

At the beginning of 2004 when Mr Demiglio began working at St George Public Hospital there were issues in regards to his inappropriate behaviour which most people felt uncomfortable with. Mr Demiglio many times encouraged members of the Security Department to engage in explicit graphic sexual conversations and some of his favourite topics of discussion were about homosexuals, transvestites, transsexuals and "she males". Other inappropriate occurrences includes Mr Demiglio playing with fruit and vegetables during meal breaks in a provocative sexual manner, calling Security Officers sluts and asking them "who is your daddy bitch" and touching Security Officers on their backsides and commenting how soft they were.

Sometime in June 2004 Mr Demiglio made a sexual harassment complaint against the then Security Officer Mr Hugon. According to Mr Dimovski this made him uncomfortable as he knew it not to be true. On 4 August 2004 Mr Demiglio sent Mr Dimovski an email containing graphic homosexual material. He confronted Mr Demiglio who claimed that it was not intended for him.

According to Mr Dimovski over time Mr Demiglio became more discreet which made him accepted in the wider group. He said that he and Mr Demiglio became such good friends that on 15 September 2007 Mr Demigilio was invited and attended his son's wedding celebration.

When the Senior Security Officer position became available Mr Dimovski encouraged Mr Demiglio to apply for it. When the Security Operations Manager's position became available he recommended that Mr Demiglio should apply for it and he was the first one to congratulate Mr Demiglio when he was appointed to the position.

On 18 August 2008 Mr Calligas was seconded to the Security Department contrary to the Health Department policy that no person with a provisional security licence should be allowed to work at any Health Department establishment. Mr Calligas was a personal friend of Mr Hugon and thus this policy was overlooked.

On 22 September 2008 then acting Security Manager, Mr Demiglio executed unlawful action by directing Mr Dimovski, Mr Kotevski and Mr Anevski not to speak any other language but English in the workplace. The email only applied to the three of them with a Macedonian background. On 30 June 2010 Mr Kotevski, Mr Anevski and Mr Dimovski made a formal complaint to the Human Rights Commission and the matter has not been concluded.

In September of 2008 acting Security Manager, Mr Hugon was stood down from his position for allegedly distributing inappropriate emails on the hospital email system. According to Mr Dimovski, Mr Anevski later told him that Mr Hugon contacted MrAnevski on his mobile phone and said words to the effect of "tell Jorgo I am not going to go down on my own, I am taking every one down with me. I know it was Jorgo that did it. I will be telling the Hospital Management and Human Resources Department everything and anything I can think of". Mr Hugon was referring to his dismissal. Mr Dimovski said he informed Mr Anevski that he had absolutely no involvement and requested that he contact Mr Hugon to tell him this.

About 3 weeks after the dismissal of Mr Hugon, Mr Kotevski informed Mr Dimovski that he had a conversation with Mr Calligas, who informed him that he has been in constant contact with Mr Hugon. Mr Calligas informed him that Mr Hugon wanted it known that he knew people from his previous employment in the NSW Prison System and that Mr Kotevski and others responsible for Mr Hugon's dismissal would be done over. Mr Kotevski informed Mr Dimovski.

Mr Dimovski had a conversation a few days later with Mr Calligas in which he said "please don't relay messages which are serious threats against others". Mr Dimovski pointed out to Mr Calligas that if Mr Hugon continued with his threat then it will give him no other alternative but to report the matter to the police.

When acting Security Manager, Mr Hugon was stood down, Mr Demiglio was appointed acting Security Manager. Mr Demiglio immediately began to micro-manage, bully and intimidate people.

Sometime in October 2008 Mr Dimovski was informed by Mr Kotevski that Mr Demiglio made the following comment to him, "David this Department is full of old people that have bad memories and cannot remember things and are also unwilling to change. If you and others continue on this path then I can replace you with contract labour which is much cheaper. What this Department needs is totally new blood."

On 25 November 2008 a Union meeting was called to address Mr Demiglio's bullying, harassment and micro-management. They were informed at the meeting that a new Manager, Mr Andraos was about to start and the issues in regards to Mr Demiglio would be resolved.

In the first week of December 2008 acting Security Manager, Mr Demiglio said words to the effect, "I would just like you to know that whoever removed the confidential records from my office should return them. Mr Dimovski advised Mr Demiglio to report this to the police as it constituted a serious breach of security.

This incident was never formally reported or investigated by anyone until Mr Dimovski contacted the Privacy Commissioner on 28 May 2010. Mr Dimovski was informed that the Records were never stolen but simply misplaced.

In the second week in December 2008 Mr Demiglio accused officers of stealing his picture from the Security Office wall. The picture was found on the floor in between the two cabinets a few days later.

At the beginning of December 2008 Mr Demiglio made it clear to Mr Calligas and every other Security Officer in the Department that he did not want Mr Calligas in the Security Department.

Mr Dimovski witnessed, with Mr Anevski, Mr Calligas kicking chairs and slamming the exit door. He said words to the effect, "I'm going to kill him the fucken poof, I'm going to rip his head off and throw him off the fucking roof, that's it I'm getting the boys to do him over, fucking faggot, and cock sucker". Mr Dimovski told Mr Calligas that he would talk to Mr Demiglio to see if he could change his mind.

That day Mr Dimovski spoke to Mr Demiglio. He stated that he had received complaints from several individuals that Mr Calligas was very aggressive towards patients and he also received instruction that no one with a provisional security licence should be working at any Health Department establishment.

Mr Dimovski requested Mr Demiglio to allocate Mr Calligas to his team so he could keep an eye on him and train him properly. Mr Demiglio said "Don't worry about him, as I said before, he won't be much longer with the Security Department for you to worry about".

When Mr Andraos was appointed Security Manager the issue in regards to Mr Calligas being removed from the Department changed. Mr Calligas appeared to be favoured by both Mr Demiglio and Mr Andraos. Mr Calligas was allowed to do whatever he pleased despite holding only a provisional licence requiring supervision.

Mr Calligas made a statement to Mr Kotevski, Mr Anevski and Mr Dimovski that Mr Andraos told him as long as he supports him 100% the Security Officer's job will be his. The job was advertised with Mr Calligas being awarded the position.

Mr Calligas made another comment to Mr Dimovski, Mr Kotevski and Mr Anevski that Mr Andraos told him that the next Senior Security position will be his. In February 2010 the Senior's position was advertised with Mr Calligas being appointed as Senior Security Officer in preference to a number of more highly experienced applicants.

Mr Dimovski's belief and that of others in the Department is that Mr Calligas provided written fabricated statements against himself and others for the following reasons:

to be allowed to stay in the Security Department as a full time Security Officer;
so he could be protected against the serious allegation that I and others made against him with regard to mistreatment of patients and breach of patient confidentiality;
to be promoted to the Senior Security Officer position in preference of others; and
to fulfil his friend John Hugon's wishes to see us all terminated.

In December 2008 Mr Dimovski was made aware by Mr Anevski that he was the victim of bullying and harassment by Mr Demiglio. Mr Anevski informed Mr Dimovski that on two separate occasions Mr Demiglio entered the Security Control Room and rubbed his private parts on his arm. Mr Dimovski advised Mr Anevski to report the incident to Management or the police. Mr Anevski said he wanted this incident to remain confidential as he is not sure what course of action he should take.

On 29 January 2009 the first security meeting was held with newly appointed Manager, Mr Andraos. Mr Andraos was told about Mr Demiglio's bullying and harassment and a request was made that he be formally interviewed. Nothing was resolved and Mr Demiglio's behaviour continued this time with the support of Mr Andraos.

At the end of January 2009 Mr Dimovski informed Mr Demiglio that he was approached by a number of Security Officers who raised concerns that Mr Calligas was physically and verbally assaulting mental health patients and that he was constantly breaching hospital policy by distributing photo copies of patients' X-Rays depicting foreign objects in rectums and vaginas. Mr Demiglio stated that he would speak to Mr Andraos about this but to Mr Dimovski's knowledge nothing was done and Mr Calligas' inappropriate behaviour continued. Mr Dimovski also noticed that Mr Calligas' behaviour changed towards him and he would often ignore him or fail to answer his questions.

On 27 February 2009 the Union representative, Mr Wayne Moore was stood down. Wayne Moore informed Mr Dimovski that on 1 March 2009 at approximately 10.18 am Mr Hugon phoned him on his mobile and said, "Wayne what goes around comes around you fuck wit" and then hung up. Wayne Moore also noted this in his official Security Note Book.

In the beginning of March 2009 Mr Dimovski informed Security Manager, Mr Andraos that he was approached by Mr Anevski, Mr Mofardin and Mr Kotevski who raised concerns that Mr Calligas continued to physically and verbally assault mental health patients and was continuing to distribute inappropriate photo copies of patients' X-Rays. Mr Dimovski also informed Mr Andraos that he had personally warned Mr Calligas not to physically and verbally assault the patients. He also told Mr Andraos that since his initial complaint about Mr Calligas to Mr Demiglio, Mr Calligas was now ignoring him. He also informed Mr Andraos that Mr Calligas spent a considerable amount of time in Mr Andraos' office and that Mr Calligas was following Mr Andraos around everywhere which made it impossible for Mr Dimovski to control him and ultimately do his work.

Mr Andraos responded "I run this Department not you, I will run it anyway I see fit". The conversation ended by Mr Dimovski stating that Mr Andraos should be supporting Mr Dimovski when he is trying to do the right thing by the Hospital and not undermine him by not disciplining individuals who are doing the wrong thing.

On 26 March 2009 Mr Dimovski was given a letter by Security Manager, Mr Andraos informing him that he was named as a witness to an alleged incident which took place between Mr Demiglio and Mr Anevski.

On 4 April 2009 a meeting was held and Mr Dimovski said he was not present during the alleged incident but then he was bombarded with totally unrelated questions pertaining to his views on homosexuality. It appears that Hospital Management did not like the answers given by Mr Dimovski as he was requested to sign meeting minutes which did not accurately reflect the record of the conversation. Mr Dimovski made amendments to the original document and returned a signed copy to Ms Milenkovski.

Shortly after this Mr Dimovski found himself constantly being bullied and harassed by Management. Mr Anevski and Mr Kotevski also received the same treatment.

Since Mr Andraos commenced employment he, Mr Demiglio and Mr Calligas have conducted regular meetings with Mr Hugon.

On 19 August 2009 Mr Dimovski saw Mr Andraos, Mr Hugon, Mr Calligas and Mr Diab met in a restaurant opposite St George Public Hospital Emergency Department.

Mr Andraos claimed that the meeting in a restaurant on 19 August 2009 was purely coincidental. Furthermore Mr Andraos stated that he is the Manager and can do whatever he likes and rebuked suggestions of Mr Hugon being hostile.

At the end of August 2009 Mr Dimovski was informed by Mr Mofardin that Mr Hugon arrived at the Security Office carrying a large yellow envelope containing paper work and requested to see Mr Andraos. Mr Andraos came out of his office and invited Mr Hugon in. The meeting lasted about 20 - 30 minutes and when Mr Hugon left the office he no longer had the envelope he had arrived with.

On 15 September 2009 at the end of the night shift Mr Dimovski forgot to secure his contemporary pocket Note Book in his locker. This Note Book contained his work computer pass word which was written on one of the pages. He discovered it later to be missing.

The same day when Mr Dimovski arrived for the night shift Mr Andraos returned his pocket Note Book and queried an entry in the book "J Dimeglio Password". Mr Dimovski informed Mr Andraos that he did not like what Mr Andraos was implying.

Mr Dimovski told Mr Andraos that he was not happy that nothing was done about Mr Calligas assaulting patients. Mr Dimovski made Mr Andraos aware that Mr Vay, another Security Officer, had also adopted a similar unjustified attitude when involved in restraining patients.

Mr Dimovski informed Mr Andraos that Mr Vay stated to Mr Dimovski, Mr Anevski, Mr Kotevski and Mr Mofardin words to the effect, "The patient in 6 South will no longer going to give us any problems because me and Petro Calligas fixed him up the night before".

Mr Dimovski also informed Mr Andraos that he witnessed Mr Vay put a patient in a head lock. Mr Andraos' response was words to the effect, "Well you know they are young guns and their adrenalin is rushing, and they also want to demonstrate their toughness. Do you think that you and Petro Calligas can sit down with me and thrash out your differences?"

After speaking to Mr Andraos, Mr Dimovski had a closer look at his Note Book and realised that it had been severely damaged with several pages missing. Mr Dimovski was also able to identify the entry which Mr Andraos had referred to as pertaining to a password for a document penned by himself relating to Mr Demiglio and Mr Anevski's Investigation which had been called for by the Human Resources Department.

On 6 October 2009 Mr Hugon once again visited the Hospital and he verbally threatened Mr Dimovski. He said words to the effect, "Hey you fucken dog. Your days and the days of the dogs around you are numbered, as I told Toni, you're all going down!" This incident was reported to Mr Demiglio but nothing was done about it. Indeed ten minutes later Mr Andraos and Mr Demiglio were seen making their way to the coffee shop with Mr Hugon. Witnesses to this incident were Mr Anevski and Mr Dimovski.

In mid October 2009 Mr Dimovski was informed by Mr Kotevski that he witnessed Mr Hugon delivering paper work to Mr Andraos in the Security Office. If these documents were Security work that Mr Hugon kept at home, this constitutes a breach of Health Policy and it should have been reported to the Police Department immediately.

In December 2009 at the staff Christmas Party, Mr Calligas demonstrated the lack of common regard for Hospital patients with words to the effect, "when I was looking after a patient in room 13, he was arguing with me and, during the argument, I walked up to the patient, turned around and farted straight in the patient's face". He also added that the smell was so bad that the patient screamed for the nurse and he got worried so he put his hand on the patient's mouth. This comment was heard by Mr Andraos, Mr Skleparis and Mr Demiglio who responded with open laughter. This was witnessed by Mr Mofardin, Mr Anevski, Mr Kotevski and Mr Dimovski.

Mr Dimovski was informed by Mr Kotevski that on 15 January 2010 Mr Hugon rang him at home to celebrate Mr Kotevski's dismissal from the hospital and he told Mr Kotevski that he is involved with the Investigation and the Protected Disclosure and made it clear to Mr Kotevski that this is only the beginning, other people will follow him. He mentioned Mr Dimovski, Mr Anevski, Mr Mofardin and Mr Algadi.

On 8 December 2009 Mr Dimovski was presented with a letter from Mr Andraos asking him to attend a meeting with an External Investigator to respond to various allegations that were made under the Protected Disclosures Act,1994.

When Mr Andraos handed him the letter Mr Dimovski made him aware of his health situation. He had been diagnosed with cancer and he asked if the meeting could be postponed as he was in no condition to attend. Despite this an opportunity to postpone the meeting was not afforded to him.

At the meeting Mr Dimovski made it known to the External Investigator that the allegations were false and a fabrication by those involved. Mr Dimovski informed the External Investigator that it could be for a number of reasons that people would make false statements against him but without knowing who made the complaint he could not answer the question. If the External Investigator was willing to give Mr Dimovski the names of those two officers involved then he may be able to give him the answer.

On 27 May 2010 Mr Dimovski contacted the NSW Ombudsman and provided a Protective Disclosure Statement. This matter has not been concluded.

While on sick leave on 13 July 2010 Mr Dimovski was advised that a recommendation had been made to terminate his employment. In the correspondence it was stated that he be provided with an opportunity to respond in writing within 7 days to show cause as to why his contract of employment should not be terminated. However Mr Dimovski only received the registered mail on 13 July 2010 and the correspondence was dated 9 July 2010 meaning that he had only 2 days to respond instead of the 7 days as stipulated. On 12 July 2010 Mr Dimovski received correspondence that he had been stood down with pay.

On 14 July 2010 Mr Dimovski sent an email to Acting Human Resources Manager, Mr Towarnicki and requested further information and an extension of time as well as the following information:

the names of all the witnesses, and hard copy of their original statements to allow him a fair opportunity of responding to the allegations;
a copy of the transcript of the meeting. Mr Dimovski also requested a copy of the original audio tape that was a recording of the minutes of the meeting.

On 15 June 2010 Senior Human Resources consultant Ms Murphy informed Mr Dimovski that she could provide him with the information that he requested. On 19 July 2010 he received only part of the information that he had requested. Ms Murphy informed Mr Dimovski that she could not supply him with the names of the witnesses or their statements as they were protected from disclosure. Mr Dimovski informed Ms Murphy that he was in a very limited and difficult position. Mr Dimovski was never provided with the names of the witnesses or their statements.

On 26 July 2010 Mr Dimovski replied to the letter sent to him by the Chief Executive Director for the SESI Area Health Service, Mr Clout.

On 26 November 2010 Mr Dimovski received a letter from Mr Clout advising him that his employment was terminated.

Mr Dimovski's belief is that it was him who has been the victim of a systematic and organised attempt to remove him from his position of employment. He stated that he had been a long standing, loyal public servant for over 22 years. During his time he has never once been disciplined for any inappropriate conduct. Rather throughout his career he frequently received praise from both within the Department and from other Departments on his work ethic and passion for the job.

Mr Dimovski believes that attempts have been made to remove him from his employment for the following reasons:

to cover up his allegations of patient abuse and breach of patient privacy within the Hospital system;
to support Joseph Dimeglio against the grievances raised by Mr Anevski.

It is Mr Dimovski's personal opinion that Mr Andraos collaborated with Mr Hugon and encouraged Mr Calligas and others to provide fabricated statements against Mr Dimovski and others. As a reward Mr Andraos has accommodated Mr Calligas with a full time position as well as a promotion.

Statement of 8 February 2011

In his Statement of 8 February 2011 (Exhibit 1) Mr Dimovski stated:

in relation to the Statement of Mr Vay of 18 January 2011 (Exhibit 2) Mr Dimovski denied that he had ever made any derogatory comments against Mr Demigilio. Mr Dimovski believes that the Note Book entries of various respondent's Security Officers have been fabricated. He believes that these entries were written significantly after the dates mentioned in the Note Book. He believes references to himself were inserted afterwards and are fabricated. He would question why the book reference number 103421 is a lower number than the book reference number 103436 of Mr Calligas despite the fact that this book was issued one year later;
in relation to the Statement of Ms McCamley of 18 January 2011 (Exhibit 11). Mr Dimovski confirms that he never intentionally intimidated nor ignored Ms McCamley. Mr Dimovski did have a number of conversations with Ms McCamley about her timeliness as it was his duty as Senior Security Officer to do so. Mr Dimovski agrees with Ms McCamley that he never made any derogatory comments about Mr Demigilio;
in relation to the Statement of Mr Robinson of 30 January 2011 (Exhibit 16) Mr Dimovski denies that he made any derogatory comments about Mr Demigilio;
in relation to the Statement of Mr Skleparis of 28 January 2011 (Exhibit 17) Mr Dimovski said that Mr Skleparis was a party to a conversation at the 2009 staff Christmas Party where Mr Calligas boasted about an incident with words to the effect of, "When I was looking after a patient in room 13, he was arguing with me and during the argument, I walked up to the patient, turned around and farted straight in the patient's face". The smell was so bad the patient screamed for the nurse and the nurse became worried so he forcefully silenced the patient. This comment was heard by Corporate Manager, Mr Skleparis, Security Manager, Mr Andraos and Operations Manager Mr Demigilio who responded with open laughter. This incident was also witnessed by Mr Mofardin, Mr Anevski, Mr Kotevski and Mr Dimovski;
in relation to the Statement of Mr Calligas of 21 January 2011 (Exhibit 13). Mr Dimovski denies ever making derogatory comments against Mr Dimigilio. He also denies that he had a conversation with Mr Calligas about Mr Veljanovski. Mr Dimovski confirmed that he never coached or encouraged anyone to write fabricated statements against Mr Demigilio. He did not help with the emails as alleged. It is Mr Dimovski belief that the Note Book entries have been fabricated for the same reasons as above. Mr Dimovski remembers that at the time Mr Calligas began with the Security Department it did not have any Note Books to issue. Further the hand writing appears as if it has been made at the same time throughout the book indicating to Mr Dimovski that it has been written all at the same time. Mr Dimovski would also question why the "issued by" section has not been completed and why the book reference number of 103436 is higher than the Note B ook reference number 103421 of Mr Vay despite the fact that this book was issued one year later;
in relation to the Statement of Mr Andraos of 31 January 2011 (Exhibit 12). Mr Dimovski has never made offensive comments such as "faggot" and "cock breath" against Mr Demigilio. He denies ever encouraging other Security Officers to complain against Mr Demigilio. Mr Dimovski approached both Mr Demigilio once and Mr Andraos on two separate occasions about serious patient abuse. The statement that Mr Dimovski did not raise concerns about Mr Calligas during the September 2009 meeting is false.
in relation to the Statement of Mr Towarnicki dated 25 January 2011 (Exhibit 7). Mr Dimovski denied that he had ever used terms such as "faggot" "cock breath" against Mr Demigilio. He also denies that he has encouraged other Security Officers not to support Mr Demigilio and to complain about him. Mr Dimovski informed Mr Andraos of his medical condition when he handed him a letter to attend the interview. Further, Union Organiser, Mr Gilchrist informed Mr Dimovski that he had informed the Investigator of his medical condition.

In cross-examination Mr Dimovski said he never says to another employee that a certain employee is a "faggot" or "cock breath". He agreed that if a Senior Security Officer has a complaint to make there is a process that must be followed.

Mr Dimovski said in cross-examination that he approached Mr Demigilio about his concerns that Mr Calligas had abused mental health patients and that he showed inappropriate X-Rays. However Mr Demigilio did not get back to him.

It was put to Mr Dimovski that he never raised these issues with Mr Andraos. Mr Dimovski said he raised these issues with Mr Andraos in March and October 2009 but he did nothing about these issues. He called Mr Andraos a liar for saying that he never did raise the issues with Mr Andraos.

Mr Dimovski said on 28 May 2010 he raised these issues in writing with his Manager. It was put to him that this was one month after the External investigation report was brought down to which he agreed.

It was put to Mr Dimovski that he had made no written report or email of excessive force being used by Mr Calligas to which he replied that he told his Managers.

Mr Dimovski denied that he was a close colleague of Mr Kotevski and Mr Mofardin. He said that they were work colleagues. He denied that he complained about overtime or that he "took up" Mr Kotevski's complaint about overtime. He agreed that he was a close colleague of Mr Anevski.

Concerning the inappropriate email and picture that Mr Demigilio had sent Mr Dimovski on 4 August 2004, Mr Dimovski was asked why he did not report it in 2004 but waited until 24 July 2009. Mr Dimovski replied that he did not want to "create waves". It was put to him that it suited him to deflect attention from himself so as to make allegations against Mr Demigilio. Mr Dimovski denied this.

In his letter of 28 May 2010 to the NSW Ombudsman, Mr Dimovski raised excessive use of force and inappropriate conduct by Mr Calligas, Mr Vay and Mr Andraos. It was put to him that Mr Kotevski wrote the same letter to the NSW Ombudsman against Mr Calligas, Mr Vay and Mr Andraos and that Mr Dimovski had helped Mr Kotevski to prepare the letter. Mr Dimovski denied this.

Mr Dimovski said that he was offended when Mr Demigilio said that he was not to talk in Macedonian to other Security Officers. He disagreed that by the end of 2008 he did not like Mr Demiglio's style of Management but agreed that he did not like Mr Demiglio's bullying and harassment.

In November 2008 Mr Kotevski made a complaint against Mr Demigilio of bullying and harassment. It was put to Mr Dimovski that he was of the same view as Mr Kotevski. He replied that he had not made a complaint about Mr Demigilio and that it was not until later that he had felt that Mr Demigilio had bullied and harassed.

Mr Anevski's complaint against Mr Demigilio was the subject of a fact finding Investigation in February 2009. In June 2009 there was an Internal Report into the Investigation. Mr Anevski told Mr Dimovski about the Internal Report on 29 June 2009. It was put to Mr Dimovski that he was aware that Mr Calligas made remarks which effected the outcome of the Investigation into Mr Anevski's complaint. Mr Dimovski denied this.

Mr Dimovski said that Mr Calligas was lying when he said that Mr Dimovski helped Mr Kotevski write emails in early 2009. On 9 September 2008 Mr Calligas was rostered on shift with Mr Dimovski. Mr Calligas said that Mr Dimovski made a complaint about Mr Demigilio "sucking cock". Mr Dimovski denied this. When it was suggested to Mr Dimovski that it was true, he called Mr Calligas a liar.

It was put to Mr Dimovski that on 11 September 2008 he said that if you put in a lot of complaints about Mr Demigilio he will not get the job. Mr Dimovski denied this.

It was put to Mr Dimovski that in August 2009 after the outcome of the Investigation into Mr Anevski's complaint was known he was cold towards Mr Calligas because Mr Calligas made certain statements to the Investigation which prevented him from "getting rid" of Mr Demigilio. Mr Dimovski denied this.

It was put to Mr Dimovski that on 5 August 2009, Mr Vay said that he called Mr Demigilio a "cock sucker". Mr Dimovski denied this.

It was put to Mr Dimovski that in the middle of 2008 he was friendly to Mr Demigilio but by the end of 2008 he was not friendly. Mr Dimovski denied this. It was put to Mr Dimovski that by the end of 2008 he had commenced a campaign against Mr Demigilio. Mr Dimovski denied this. Mr Dimovski denied that he was actively helping Mr Anevski to make a complaint against Mr Demigilio.

On 12 July 2009 Mr Dimovski was on shift with Mr Vay. It was put to Mr Dimovski that he called Mr Demigilio "a poof". Mr Dimovski denied this. It was put to Mr Dimovski that Mr Vay was telling the truth and that Mr Dimovski tried to stir up trouble for Mr Demigilio. Mr Dimovski denied this.

In December 2009 in his interview with the External Investigator, Mr Dimovski said that Mr Calligas and Mr Vay were making derogatory remarks against Mr Demigilio. It was put to Mr Dimovski that Mr Calligas and Mr Vay did not make comments about Mr Demigilio. Mr Dimovski said they did make the comments. Mr Dimovski denied that he was shifting the blame on to others.

After the External Investigator's Report was issued it was put to Mr Dimovski that he complained about Mr Andraos. Mr Dimovski denied this.

Mr Dimovski agreed that he had not escalated his complaints about Mr Demigilio to his Managers.

Mr Dimovski denied he had fabricated his allegation of 28 May 2010 to the NSW Ombudsman.

Mr Dimovski did not provide Mr Andraos with a medical certificate that he could not attend the interview with the External Investigator but he said that he told Mr Andraos of his medical condition. Mr Andraos said that Mr Dimovski did not say anything to which Mr Dimovski replied that he did.

Mr Kotevski

In his Statement of 31 December 2010 (Exhibit 8) Mr Kotevski stated that Mr Dimovski has never encouraged him to write any statements against Mr Demigilio nor has he never heard Mr Dimovski making any inappropriate comments about Mr Demigilio. Everyone in the Security Department knew that Mr Demigilio and Mr Dimovski were friends.

Mr Kotevski believes that Mr Dimovski became a victim because he brought to Management's attention the mistreatment of patients by Mr Calligas and Mr Vay. Also there was Mr Hugon's campaign against Mr Dimovski as he personally blames him for his dismissal. Mr Hugon did make a threat that he "will bring everyone down" and he has been actively working with Management and Mr Calligas.

When Mr Kotevski brought to Management's attention Mr Calligas' mistreatment of patients, Management turned a "blind eye". Management made Mr Calligas a hero. Management is actively working now and doing everything to protect Mr Calligas against the Investigation referred by the Ombudsman in regards to the physical and verbal assault of mental health patients.

Mr Kotevski denies that Mr Dimovski was telling him what to do and what to write in his complaints. Mr Kotevski said that Mr Calligas made the following statement about Mr Demigilio to Mr Dimovski, Mr Anevski and Mr Kotevski, "I'm going to kill the poofter and I am going to throw him from the Security Office roof". Mr Demigilio when acting Security Manager began to bully, intimidate and micro-manage the workers. He started by accusing the workers of virtually everything and anything he could think of.

In the beginning of 2008 Mr Demigilio began accusing Mr Dimovski, Mr Anevski and himself of stealing Security Officers' personal files from his office in a locked cabinet. Mr Demigilio then accused the three men of stealing his picture which was found on the floor in between two cabinets.

In October 2009 Mr Vay informed Mr Kotevski, Mr Mofardin, Mr Dimovski and Mr Anevski that the patient in 6 South will no longer be giving us any problem as Mr Vay and Mr Calligas fixed him up the night before. He specifically mentioned that they shut the patient's room door so no one could see what they were doing.

Towards the end of October 2009 Mr Kotevski over heard Mr Vay say to Mr Skleparis that the Greeks will run the Department and the Macedonians will be defeated and will be out of the Hospital.

In December 2009 at the Christmas party Mr Calligas was bragging in front of the three Managers, Mr Andraos, Mr Demigilio and Mr Skleparis about how he dealt with the patient in room 13. Mr Calligas stated that when the male patient in room 13 was arguing with him and on the was out of the room he turned around and "farted" in the patient's face and laughed in front of the patient. The patient was trying to call the nurse to report Mr Calligas but Mr Calligas placed his hand on the patient's mouth. Mr Mofardin, Mr Anevski, Mr Dimovski and Mr Algardi witnessed this incident.

In Mr Kotevski's opinion Mr Calligas was prepared to do anything so he could stay in the Security Department. It is Mr Kotevski's personal belief that Mr Calligas became the perfect candidate for the Managers' to build a case against Mr Dimovski, Mr Mofardin, Mr Anevski and himself. As a result Mr Calligas was rewarded with a full time position in the Security Department and later was promoted to a Senior Security Officer position.

Mr Kotevski requested to provide a Protective Disclosure from the PPU Manager in order to be able to reveal serious concerns in relation to patients and theft of Hospital property being committed by the Security Officers. This opportunity was not granted to Mr Kotevski and as a result he took the matter up with the NSW Ombudsman. Hospital Management were only too happy to give Mr Calligas the opportunity to provide a Protective Disclosure as it served their corrupt agenda.

In cross-examination Mr Kotevski said that he made an allegation at the end of 2008, beginning of 2009 to Mr Skleparis about the way the mental health patients were being treated by Mr Calligas and Mr Vay. Mr Kotevski said it was not true that Mr Skleparis had only heard for the first time about the use of excessive force when Mr Dimovski wrote to the NSW Ombudsman on 28 May 2010.

It was put to Mr Kotevski that he wrote his letter of complaint to the NSW Ombudsman in which he mentioned use of excessive force for the first time. Mr Kotevski denied this. Mr Kotevski said he went to Human Resources before January 2010. In January 2010 he wrote to Ms Wakehurst, then he sent a letter to Mr Clout, the Chief Executive about excessive use of force. He then wrote to Ms Savage, the PPU Manager, but she did not want to take his protected disclosure because she did not want to go against Mr Clout.

It was put to Mr Kotevski that his letter of January 2010 sets out allegations against Mr Andraos and Mr Hugon. He replied that it did but he also sets out serious issues in the Hospital and serious concerns regarding patients. Mr Kotevski said this was ignored and so he wrote to the NSW Ombudsman. Mr Kotevski said his letter was written before Mr Dimovski's letter, although they both bear the same date but that the two letters were submitted at the same time.

Mr Mofardin

In his Statement of 4 January 2011 (Exhibit 6) Mr Mofardin stated that Mr Demigilio would bring in "blue movies" to watch on the shift. They were mainly of a gay porn nature. Mr Demigilio would grab him by the "arse" and say, "your an old man and you've got a soft arse".

There were a few Security Officers who called Mr Demigilio a "faggot" and a "poof". They were Mr Howatson, Mr Robinson, Mr Calligas and Mr Vay. This tirade of abuse was reported to the Senior Security Officer and the Security Manager. They were aware of the situation and did nothing about it.

Security Officer Algardi was having threats made against him and abuse from Mr Hugon. Because Mr Mofardin acted as a support person for Mr Algardi, Mr Hugon threatened the life of his family and himself. This was reported to Corporate Manager, Mr Skleparis and the report forwarded to Human Resources. Nothing eventuated from that complaint.

Mr Hugon as the acting Security Manager, had his friend Mr Calligas seconded to work in the Security Department. Mr Calligas only possessed a provisional security licence. Working in the Hospital at that time was in contravention of the New South Wales Health Policy.

Mr Mofardin worked with Mr Calligas on many occasions on shift. Mr Calligas was always rough with patients. He would "man handle them, physically and verbally abusing the patients" He cautioned Mr Calligas that what he was doing was really a criminal offence. Mr Calligas' reply was "it's my word against them, who is going to believe them, they're mad". This was reported to the Mr Andraos whose answer was, "he is a young gun and has adrenalin running through his veins".

Mr Mofardin reported Mr Vay to Mr Andraos regarding over zealous physical handling of patients. Mr Andraos' answer was, "he is a young gun and has adrenalin running through his veins". Mr Mofardin reported this patient abuse to Mr Dimovski and he advised him that he would speak to the Mr Andraos on his behalf. Mr Mofardin enquired from Mr Dimovski what Mr Andraos had said. Mr Dimovski said Mr Andraos had said "the boys are O.K., they are young guns and they got a lot of adrenalin. You have to be rough with the patients to restrain them".

On one occasion while Mr Kotevski and Mr Calligas were on an internal patrol of the Cancer Care Centre, Mr Mofardin observed Mr Calligas offering razor blades to Mr Kotevski. Mr Kotevski said that he did not want anything to do with stolen items. Mr Calligas replied "take them, they are very good. I use them all the time".

At a Christmas party in 2009 Mr Calligas was telling everyone how he got called to the Emergency Department to deal with a patient who was very vocal and wanted to go home. Mr Calligas went to the patient and said, "shut your mouth, I don't want to hear another word from you!" The patient was still vocal so Mr Calligas went right next to the patient's face "and then farted in his face". The smell was so bad that the patient was screaming the Security Guard is "farting in my face" Mr Calligas told this to everyone at the party including the Security Managers. Everyone just laughed.
On 3 different occasions Mr Calligas was given X-Rays of patients which he brought to the Security Department for everybody's amusement. The first one was a woman patient presenting to the Emergency Department with a vibrator still working in her vagina which she could not get out. The second X-Ray was a male with a vibrator wedged in his anus. The third X-Ray was a male patient who had a nail from a nail gun stuck into his knee.

Mr Mofardin never heard Mr Dimovski make any derogatory remarks about Mr Demigilio. Mr Mofardin recalls that when Mr Demigilio was appointed to the position of Senior Security Officer there were a number of Security Officers who were against Mr Demiglio's appointment. Mr Dimovski spoke in support of the appointment. Mr Mofardin was told by Mr Demigilio that Mr Dimovski had told him that he should apply for the Security Operations Manager position. As far as Mr Mofardin was aware Mr Dimovski and Mr Demigilio were good friends.

Mr Mofardin denied that he was against Mr Demigilio or that he orchestrated complaints against Mr Demigilio so that he would not get a job. He also denied that he or Mr Dimovski made derogatory remarks about Mr Demigilio. Mr Mofardin alleges he saw Mr Vay and Mr Calligas abuse mental health patients numerous times.

Mr Mofardin stated that Note Books were issued to a Security Officer in sequence. Mr Mofardin stated that the number of the Note Books issued to Mr Calligas and Mr Vay was falsified because as Mr Calligas commenced employment before Mr Vay he should have a lower number than Mr Vay. The fact that the numbers are the other way around indicates that the Note Books were falsified.

In cross-examination Mr Mofardin said that he had made complaints about Mr Calligas' abuse of mental health patients to Mr Andraos, but as they were "good mates" Mr Andraos never did anything about the complaints. In response to a question that Mr Mofardin did not complain "up the chain of command" about Mr Vay or Mr Calligas, Mr Mofardin said he told his Supervisors. In response to Mr Mofardin's statement that Mr Demigilio brought blue movies to work, it was stated that other Security Officers never saw blue movies and that Mr Mofardin was not telling the truth. Mr Mofardin denied this. It was put to Mr Mofardin that at the end of 2008 Mr Mofardin did not think much of Mr Demiglio's management style. Mr Mofardin denied this and he said that he supported him. In terms of Mr Calligas' inappropriate X-Rays, Mr Mofardin said he did not escalate a complaint about them because he thought Mr Calligas showed them to everyone.

Mr Anevski

In his Statement of 31 December 2010 (Exhibit 9) Mr Anevski stated he had never heard Mr Dimovski make any demeaning comments towards Mr Demigilio, nor has Mr Dimovski encouraged Mr Anevski to write fabricated statements against Mr Demigilio.

In August 2008 Mr Hugon was stood down from his position for distributing inappropriate emails. Mr Hugon said to Mr Anevski "I know it's Jorgo (Dimovski), you tell him, what goes around comes around. I'm not going to go down on my own. I'm taking everyone down with me. I'll be telling the Hospital Management everything and anything I can think off". Mr Anevski informed Mr Dimovski of this.

In September 2008 Mr Demigilio sent an email directing the Security Department not to speak in any other language but English in the workplace. Mr Anevski believes that this was directed towards Mr Dimovski, Mr Kotevski and Mr Anevski for speaking Macedonian.

In December 2008 Mr Anevski informed Mr Dimovski that he was being bullied and harassed by Mr Demigilio, that he had rubbed his groin on Mr Anevski's shoulder on 2 different occasions whilst in the Security Control Room. Mr Dimovski advised Mr Anevski to report this to Management or the Police. Mr Anevski told Mr Dimovski to say nothing as he was embarrassed as to what people would say or think.

In January 2009 Mr Anevski expressed his concern to Mr Dimovski that Mr Calligas was rough with the mental health patients and that someone was going to get hurt. Mr Dimovski said he would speak to the Security Management. In February 2009 Mr Anevski submitted a grievance against Mr Demigilio. In March 2009 Mr Anevski was interviewed by Mr Andraos and acting Senior Human Resources Manager Ms Milenkovski. After reading through the Minutes of the Meeting, Mr Anevski disagreed and found that they were inaccurate and advised Mr Andraos that he would not be signing them. In August 2009 Mr Anevski informed Ms Milenkovski that he was not happy with the findings and the contribution of Mr Calligas.

In December 2009 Mr Anevski was given a letter by Mr Andraos to attend a meeting with an External Investigator in relation to a Protected Disclosure. In September 2010 Mr Anevski received the findings in relation to the Protected Disclosure and that he was cleared of all the allegations. Mr Anevski said that only recently he has learnt that Mr Kotevski and Mr Dimovski were accused of the same or similar allegations. Mr Anevski believes Mr Dimovski, Mr Kotevski and himself were targeted because of their Macedonian background.

In December 2009 at a Security Department Christmas party, Mr Calligas stated in front of a group of officers. "When I was looking after a Mental Health patient in room 13, I farted in his face and the patient started screaming Nurse, Nurse, he farted in my face, I told him to shut up because someone's going to hear you". Mr Skleparis, Mr Andraos and Mr Demigilio were laughing out loud.

Mr Anevski believes that out of five Security Officers only Mr Dimovski, Mr Kotevski and himself have been interviewed because they are of Macedonian background. He also believes that Mr Calligas made a fabricated statement to Mr Andraos and Ms Milenkovski.

Mr Anevski believes that Mr Dimovski was targeted by Management because he informed Security Management of patient abuse by Mr Calligas and Mr Vay, of patient X-Rays being reviled and his involvement into Mr Anevski's grievance against Mr Demigilio.

Mr Anevski denied that Mr Dimovski orchestrated complaints against Mr Demigilio to remove him from his job. He also denied that Mr Dimovski assisted Mr Anevski in making complaints against Mr Demigilio. Mr Anevski said that he spoke to Mr Dimovski about the abuse of patients by Mr Vay and Mr Calligas at the end of 2008 and the beginning of 2009.

Mr Anevski said that Note Book number 103436 belonged to Mr Calligas and Note Book number 103421 belonged to Mr Vay. This shows that Mr Calligas had received the Note Book after Mr Vay.

In cross-examination Mr Anevski agreed that Ms McCamley's Note Book was N049145 and Mr Kotevski's Note Book was N049244 (Exhibit 10). These Note Books were issued one day after the other although there was an increase in the numbers of the Note Books from N049145 to N049244. The next entry a couple of years later, on 18 September 2009, is for Note Book number N048960. The numbers are going backwards and Mr Anevski agreed. It was put to Mr Anevski that the numbers were not sequential and he agreed.

Mr Towarnicki

In his Statement of 25 January 2011 (Exhibit 7) Mr Towarnicki stated that he is the acting Human Resources Manager of St George Public Hospital. He was responsible for the recommendations made to the Chief Executive, Mr Clout, regarding the termination of the employment of Mr Dimovski.

Mr Towarnicki stated that Mr Dimovski had been employed for 22 years without any disciplinary or performance issues. However he regarded the inappropriate behaviour as going on for a period of time and he appeared to be exploiting his seniority to influence junior officers.

On 9 July 2010 Mr Dimovski was sent a show cause letter. He was given 7 days to reply. Mr Dimovski sent a number of emails requesting further time to provide his response to the show cause letter. He also sought a copy of the transcript of his interviews with the External Investigator and the names of all the witnesses who had spoken to the External Investigator.

Mr Dimovski was provided with a transcript of his interview on 21 July 2010. Given that two protected disclosures had been made and the fact that a number of Security Officers were now involved and were making allegations against each other Mr Towarnicki considered it appropriate that Mr Dimovski not be provided with transcripts of evidence from other witnesses. Mr Towarnicki was satisfied that the External Investigator had put the allegations to Mr Dimovski and he knew what case he had to meet.

Mr Dimovski responded to the show cause letter by his letter dated 26 July 2010. He denied all of the allegations against him and claimed that the evidence upon which the allegation was made was fabricated. He further claimed that the allegations against him were part of the on-going bullying and harassment of him by Management. He appeared to Mr Towarnicki to be alleging that Mr Andraos was pursuing some sort of vendetta against him on behalf of former acting Security Manager, Mr Hugon.

The allegations against Mr Andraos had also been made by Mr Kotevski in January 2010 and the External Investigator had investigated these claims as well. The External Investigator in his report of April 2010 concluded that there was no evidence that Mr Andraos had acted improperly.

Mr Dimovski also claimed that he was medically unfit to attend the interview with the External Investigator as he was suffering from prostrate cancer. Mr Towarnicki made enquiries with Mr Andraos who told him that Mr Dimovski had not informed him prior to the interview that he was medically unfit to attend, nor did Mr Dimovski inform the External Investigator.

Mr Towarnicki remained of the view that Mr Dimovski had not shown a good reason why his employment should not be terminated. Mr Towarnicki was also satisfied that the process followed in this case was in accordance with the Area Policy Directive in place at that time.

On 26 October 2010 the Chief Executive Officer, Mr Clout, accepted the recommendation of Mr Towarnicki and wrote to Mr Dimovski informing him of his decision to terminate his employment.

Mr Towarnicki gave evidence that the terms of reference for the external investigation was broad and that it was Management's decision, not the External Investigator's decision. He reviewed the whole of the document of the External Investigator.

In cross-examination Mr Towarnicki said that it was up to the External Investigator to make up his own mind as to whether Mr Andraos' briefing was biased.

Mr Towarnicki agreed that it was his job to ensure that the External Investigation was impartial.

It was put to Mr Towarnicki that Mr Andraos was seeking to influence the External Investigator. Mr Towarnicki replied that Mr Andraos was merely providing the background information.

It was put to Mr Towarnicki that Mr Vay had not made statements of a protected disclosure when he made his decision about whether to have an External Investigation. Mr Towarnicki replied that he was in agreement with Ms Savages' view that Mr Vay was a protected person.

Mr Towarnicki reviewed the External Investigator's report. He applied the appropriate test, that is on a balance of probabilities, as to who was to be believed.

Mr Towarnicki agreed that he followed the External Investigator's findings and accepted what the External Investigator found.

Mr Towarnicki agreed that there were five witnesses who said that Mr Dimovski had not said anything inappropriate against Mr Demigilio. There were two witnesses who did say that Mr Dimovski said something inappropriate against Mr Demigilio.

Mr Towarnicki disagreed that Mr Andraos' actions were inappropriate in his internal briefing to the External Investigator.

Mr Towarnicki said that the reason why Mr Dimovski was not given an opportunity to say why Mr Calligas and Mr Vay made complaints against him was because they were protected persons. Because they were protected persons Mr Dimovski did not know who was making the complaints against him.

Mr Towarnicki said that the External Investigator had used an appropriate test in the fact finding investigation.

Mr Towarnicki in coming to his decision to terminate Mr Dimovski's employment took into consideration his years of service, his advancing years and his loss of self esteem. He did not take into account the difficulty of finding future employment.

Mr Vay

Mr Vay in his Statement of 18 January 2011 (Exhibit 2) stated he was mostly rostered to work with Mr Dimovski and Mr Mofardin.

Mr Vay stated that Mr Mofardin had called Mr Dimovski "the general" because he had worked at St George Public Hospital for such a long time.

Mr Vay noticed that Mr Dimovski did not like Mr Demigilio. Mr Dimovski was always calling him a "fucking idiot".

On 12 July 2009 Mr Vay was on night shift in Mr Dimovski's team. He said that Mr Dimovski said to him "Joseph Demigilio is a poof. He shouldn't be in his position". Mr Vay said he felt uncomfortable.

Mr Vay did not speak to Mr Demigilio or Mr Andraos about this at the time. He did not want to look as though he was "stirring the pot" or being a "drama king" .

On 5 August 2009 Mr Vay was working night shift with Mr Dimovski. Mr Vay said Mr Dimovski said to him "if you get close enough to Joseph he has cock breath". Mr Vay decided to tell Mr Andraos in September 2009.

On 20 November 2009 and 13 January 2010, Mr Vay was interviewed by the External Investigator. Mr Vay was asked about the allegations that he had made insulting or derogatory remarks about Mr Demigilio. Mr Vay denied this. He denied that he had called Mr Demigilio "a faggot" or "a poof".

Mr Vay said that Mr Demigilio had never made inappropriate sexual remarks.

Mr Vay said in cross-examination that his Note Book was issued by Mr Andraos on 20 June 2009 and it was numbered 103421.

Mr Vay said in cross examination that he wrote in his Note Book what was significant for him. He agreed that the Shift Log Report (Exhibit 3) for the 5 August 2009 did not contain entries such as on 5 August 2009 Mr Dimovski had said to him that Mr Demigilio had "cock breath".

Mr Vay was referred to the Shift Log Report (Exhibit 3) for the 12 July 2009. He was referred to the entry at 20.15. It was put to Mr Vay that it was a significant incident to which he replied that it was just one of the normal incidents that he deals with from day to day.

It was put to Mr Vay that the Note Book is not really useful because it does not contain the same information as in the Shift Log Reports (Exhibit 3). He replied that his Note Book is of use to him as he writes in his Note Book things that are significant to him personally.

It was put to Mr Vay that the entry at 20.45 of the Shift Log Report (Exhibit 3) for 5 August 2009 was not recorded in his Note Book. He agreed.

It was put to Mr Vay that he in collusion with Mr Andraos and Mr Calligas sought to orchestrate the dismissal of Mr Dimovski. He denied this.

It was put to Mr Vay that he had gone back on his Shift Log Reports and that he had entered selected entries into his Note Book and on particular days that he has been on shift with Mr Dimovski he made up allegations about Mr Dimovski because Mr Dimovski had made complaints about Mr Vay's treatment of mental health patients. Mr Vay denied this. Mr Vay said that on 15 September 2009 he was not aware that Mr Dimovski had made allegations about his treatment of mental health patients.

In terms of Mr Vay's complaint to Mr Andraos that Mr Dimovski had said 'if you make enough complaints about Mr Demigilio he will not get his job". It was put to Mr Vay that he never said that to the External Investigator. Mr Vay said that it was not true, that he could not recall and that it happened a long time ago.

It was put to Mr Vay that the highest that he could take his complaint about Mr Dimovski was that he heard Mr Dimovski call Mr Demigilio "a poof", and that Mr Demigilio should not be in the position of Security Operations Manager. Mr Vay said that he remembered Mr Dimovski saying that to him.

Mr Vay was referred to his interview with the External Investigator (Exhibit 3). Mr Vay had said "this is what spun me out the most, there's a lot of ways to skin the cat". It was put to Mr Vay that in his interview with the External Investigator he said "it spun him out", but in his evidence before the Commission he said it did not "spin him out". Mr Vay said that at the time that Mr Dimovski said it to him it did "spin me out". Mr Vay was asked where it appeared in his Note Book. He replied that he did not put it in his Note Book.

Mr Vay was referred to his interview with the External Investigator (Exhibit 2), where he referred to the allegation made by Mr Dimovski. It was put to Mr Vay that he jumped to the conclusion that Mr Dimovski had made the allegation. Mr Vay said "I guess so". It was put to Mr Vay that he knew this would occur because he was actually responsible for comments being made about Mr Demigilio. Mr Vay denied this. Mr Vay denied that he was making Mr Dimovski the scapegoat in collusion with Mr Calligas and Mr Andraos.

Ms McCamley

In her Statement of 18 January 2011 (Exhibit 11) Ms McCamley stated that when she commenced in the Security Department she worked with Mr Dimovski regularly and found him quite intimidating. He usually ignored her. He was close friends with Mr Anveski and later Mr Mofardin and Mr Kotevski joined that group. They would talk together regularly amongst themselves in Macedonian.

Ms McCamley did not hear Mr Dimovski make derogatory remarks about Mr Demigilio. Further she did not hear any other Security Officer make derogatory remarks about Mr Demigilio.

Ms McCamley found Mr Demigilio to be professional and respectful. He never said or did anything around her that she thought was inappropriate or made her feel uncomfortable. There were no sexual overturns to anything he said. Mr Demigilio brought movies to work occasionally, however lots of Security Officers did this. None of the movies that she saw were pornographic.

Ms McCamley was interviewed by the External Investigator on 8 February 2010. During the interview she told the External Investigator that she never made derogatory or insulting remarks about Mr Demigilio.

Mr Robinson

Mr Robinson in his Statement of 30 January 2011 (Exhibit 16) stated while he was working at St George Public Hospital he never saw Mr Demigilio bring pornographic DVDs to work. Mr Demigilio never said nor did anything around him of a sexual nature that made him feel uncomfortable.

Mr Robinson stated that he heard Mr Dimovski tell other Security Officers what to do.

In cross-examination it was put to Mr Robinson that prior to his interview with the External Investigator he never complained about Mr Dimovski. Mr Robinson said that he raised the matter of Mr Dimovski calling Mr Demigilio "a poof" and "a faggot" with Mr Andraos. Mr Robinson said that before his interview with the External Investigator he had complained about Mr Dimovski engaging in inappropriate behaviour. Mr Robinson said he could not say exactly when he raised the issue with Mr Andraos. It was put to Mr Robinson that in the verbal briefing of Mr Andraos with the External Investigator, Mr Andraos did not mention Mr Robinson's complaint because Mr Robinson did not complain before the interview with the External Investigator. Mr Robinson denied this and said he complained more than once. Mr Robinson agreed that he did not document anything about his complaint in his Note Book. Mr Robinson said he did not usually document things about colleagues. It was put to Mr Robinson that he never heard Mr Dimovski say anything about Mr Demigilio. Mr Robinson said that he did. It was put to Mr Robinson that he did not report breaches of the Code of Conduct every time that they occurred. Mr Robinson said that he reported breaches in the first instance and then his Manager was aware of it.

Mr Skleparis

Mr Skleparis in his Statement of 28 January 2011 (Exhibit 17) stated at no time has Mr Dimovski ever complained to him about the use of excessive force by any Security Officer at St George Public Hospital against patients or anyone else. The first time Mr Skleparis became aware of allegations regarding the use of excessive force by Security Officers was when he was shown Mr Dimovski's letter to the NSW Ombudsman dated 28 May 2010.

At no time has Mr Dimovski complained to Mr Skleparis about any alleged sexual harassment or any other kind of sexual inappropriate behaviour by Mr Demigilio towards anyone else at St George Public Hospital.

Mr Skleparis was not required for cross-examination.

Mr Calligas

In his Statement of 21 January 2011 (Exhibit 13) Mr Calligas stated that he sensed hostility from Mr Dimovski towards Mr Demigilio. When talking about Mr Demigilio he would call him "faggot" or "cock breath". This happened at least once every shift that Mr Calligas worked with Mr Dimovski. Mr Calligas did not know the staff very well so he kept quiet about this.

On 9 December 2008 Mr Calligas was working with Mr Dimovski on day shift. Mr Dimovski was complaining about Mr Demigilio and he called Mr Demigilio "a faggot" and then Mr Dimovski said: "He (Mr Demigilio) always has bad breath ... He must be sucking cock" . Mr Calligas then said "He's alright". Mr Dimovski then said to Mr Calligas "Are you a fence sitter?". Mr Calligas said "I'm just here to work".

Two days later on 11 December 2008 Mr Calligas was working night shift with Mr Dimovski. Mr Dimovski said to Mr Calligas "If we put a lot of complaints in against Joseph (Mr Demigilio) he won't get the job". Mr Calligas took him to mean a permanent job of Security Operations Manager. Mr Calligas told Mr Demigilio shortly afterwards what Mr Dimovski had said. He did not report it to anyone else.

Mr Calligas gave evidence of occasions seeing Mr Kotevski, Mr Anevski and Mr Dimovski writing emails and Mr Dimovski saying things like "No, no do it this way". Mr Calligas one night saw Mr Anevski typing an email. Mr Dimovski was standing behind him. They were mentioning Mr Demiglio's name a lot and talking about "bullying" and "harassing". In about February or March 2009 Mr Calligas overheard someone at work saying that Mr Anevski had made a formal complaint against Mr Demigilio and that one of the complaints was of sexual harassment. Mr Calligas had never seen Mr Demigilio act in a sexually inappropriate way. He told Mr Andraos what he had heard and seen over the past months.

On 7 April 2009 Mr Calligas was interviewed by Mr Andraos and Ms Milenkovski. Mr Calligas' name was meant to be kept confidential but it was accidentally disclosed in the investigation report. Not long after this Mr Calligas noticed that Mr Dimovski, Mr Kotevski and Mr Anevski were acting aloof towards him. He told Mr Andraos about this.

On 20 November 2009 and 13 January 2010, Mr Calligas was interviewed by the External Investigator.

In respect of Mr Dimovski's Statement (Exhibit 1), Mr Calligas denies ever using excessive force in his job. No one has ever raised any complaint with him.

In terms of paragraph 22 of Mr Dimovski's Statement (Exhibit 1), Mr Calligas was unhappy about the possibility of his secondment with the Security Department coming to an end but he did not say and do the things alleged by Mr Dimovski. It was not Mr Demiglio's fault that the Radiology Department wanted him to go back there.

In respect of Mr Mofardin's Statement (Exhibit 6), Mr Calligas said that he has never seen pornographic movies being shown at work. Also he never saw Mr Demigilio touch Mr Mofardin inappropriately. Given how much Mr Mofardin disliked Mr Demigilio, Mr Calligas is sure that if this had happened he would never have heard the end of it from Mr Mofardin and Mr Dimovski.

In cross-examination Mr Calligas said he had made a Protected Disclosure on 7 April 2009 about Mr Dimovski's inappropriate behaviour. Mr Dimovski had been "plotting" against Mr Demigilio so that Mr Demigilio was not successful in gaining a permanent Operation Manager's position.

Mr Calligas did not tell Mr Andraos in December 2008 that he had Note Book entries about his complaint against Mr Dimovski. Mr Calligas made the Note Book entries in December 2008. Mr Dimovski's behaviour concerned him but he did not action it. It was put to him that between April 2009 and November 2009, Mr Calligas did not mention his Note Book entries. Mr Calligas said he told Mr Andraos of the Note Book entries leading up to the Investigation by the External Investigator.

It was put to Mr Calligas that his Note Book number 103436 was issued to him on 18 August 2008 by Mr Hugon. It was put to Mr Calligas that in the Note Book Register (Exhibit 10) below the entry of C. Wright Note Book number N048960 issued on 18 September 2009 that Note Books were issued with a totally different set of numbers to those issued prior to 18 September 2009.

It was put to Mr Calligas that Mr Andraos provided a Note Book to him after he made his complaint against Mr Dimovski but before he was interviewed by the External Investigator in order to fabricate his complaint against Mr Dimovski. Mr Calligas said this was not true.

It was put to Mr Calligas that he did not tell Mr Andraos about his Note Book entries and Mr Calligas agreed that he had not.

It was put to Mr Calligas that he was aware Mr Dimovski had made complaints about him physically and verbally abusing mental health patients and so Mr Calligas made a complaint against Mr Dimovski. Mr Calligas said this was not true.

It was put to Mr Calligas that between April and November 2009 Mr Andraos gave Mr Calligas copies of the Shift Log entries so that Mr Calligas could copy out various entries in his Note Book and also fabricate evidence against Mr Dimovski. Mr Calligas said this was not true.

It was put to Mr Calligas that he fabricated his Note Book entries about Mr Dimovski and that he told Mr Andraos that he had fabricated the Note Book entries so he could tell the External Investigator about them. Mr Calligas denied this.

It was put to Mr Calligas that he took a copy of the fabricated entries into his interview with the External Investigator and that it was used to support the allegations against Mr Dimovski. Mr Calligas said he took his Note Book with him when he spoke to the External Investigator. It was not fabricated.

It was put to Mr Calligas that he had not provided a satisfactory explanation as to how Mr Andraos knew about his Note Book entries before he was interviewed by the External Investigator. Mr Calligas replied that he cannot recall if he spoke to Mr Andraos before being interviewed by the External Investigator. It was put to Mr Calligas that he has no explanation as to why he did not tell Mr Andraos about his Note Book entries in April 2009. Mr Callilgas said he cannot recall if he spoke to Mr Andraos about his Note Book entries.

It was put to Mr Calligas that on 29 July 2008 he had signed off that he had received a Note Book. This was despite the fact that his Note Book in Exhibit 15 shows that the date of issue was 18 August 2008. Mr Calligas said the Note Book was given to him on 18 August 2008. It was put to him that Exhibit 14 says that the Note Book was given to him on 29 July 2008. Mr Calligas said that the Note Book was given to him on Shift on 18 August 2008. It was put to Mr Calligas that he had signed off on 29 July 2008 that he had received the Note Book but that it is not the Note Book that he provided to the External Investigator. Mr Calligas said that the Note Book was given to him by Mr Hugon.

Mr Andraos

Mr Andraos in his Statement of 31 January 2011 (Exhibit 12) stated that as Security Manager he is responsible for approximately 15 staff in the Security Department located on the grounds of St George Public Hospital. Reporting directly to him was Mr Demigilio, Operations Manager for the Security Department. When Mr Andraos commenced work in December 2008 Mr Dimovski had been employed for about 14 years as a Security Officer. He was the longest serving officer in the Security Department at St George Public Hospital. A position description was signed by Mr Dimovski on 23 June 2009.

If a Security Officer has information, questions or concerns, he or she speaks first to the Senior Security Officer for their Shift. The Senior Security Officer may then raise it with the Security Operations Manager, who will then raise the matter with Mr Andraos, if required. The Security Operations Manager makes the decision on day to day operational matters. Particularly serious concerns that are not dealt with by the Security Operations Manager or Mr Andraos can be raised with Mr Skleparis, the Corporate Services Manager. This chain of command structure is important to the safe and efficient operation of the Security Department. It is therefore essential that the Senior Security Officers support the authority and the decisions of the Security Operations Manager.

Senior Security Officers are responsible for training on significant aspects of their work, such as the appropriate use of restraints and procedures for carrying out of patrols. They are also responsible for taking new Security Officers through the relevant security policies and procedures. This aspect of the Senior Security Officer's work is very important. A new Security Officer will be allocated to a single Security Officer's team for the first six or twelve weeks. During that period the new officer and his or her senior officer will work closely together.

St George Public Hospital has a busy Mental Health facility. It is also a major trauma hospital. The Security Department works closely with the Emergency Department by restraining injured patients who are in shock, so that the doctors are able to perform their work and also handling distressed friends and relatives who want to be near their loved ones. This work can be very confronting to Officers who have not come across it before. That is why Senior Security Officers have an important mentoring role and are expected to behave as role models. It is also why senior officers have a lot of influence over the working lives of junior officers. As the longest serving Security Officer, Mr Dimovski was usually given new officers to train.

One especially important aspect of professional behaviour for a Security Officer is honesty. Mr Andraos relies on Security Officers to give an accurate and truthful incident report as those reports may be important in Court proceedings later on.

More generally, Security Officers hold a position of trust with respect to hospital staff, patients and visitors to the hospital. Security Officers are given access to sensitive areas on the hospital campus and can carry prohibited weapons. They are often the first point of contact for visiting members of the public. There is an active Mental Health Unit and Security Officers are required to respond to duress alarms and work with clinical staff to control potentially violent and dangerous situations. When any Security Officer working for Mr Andraos applies for a Security Licence renewal, Mr Andraos is required to provide a character reference in which he must state that the applicant is a fit and proper person and of good character.

Mr Demigilio raised the matter with Mr Andraos of Mr Dimovski speaking in Macedonian when on duty. Mr Demigilio told Mr Andraos that Mr Dimovski, Mr Kotevski and Mr Anevski had all continued to speak Macedonian while on duty, despite his direction not to and despite advice to them from the Human Resource Department that the request was reasonable. Mr Andraos is aware of a formal complaint to the Australian Human Rights Commission signed by Mr Dimovski, Mr Kotevski and Mr Anevski alleging racial discrimination.

In a letter dated 6 February 2009, Mr Anevski made a number of formal allegations of inappropriate behaviour by Mr Demigilio. Mr Anevski alleged that Mr Demigilio had bullied and harassed him. He also made serious allegations of sexual harassment. Mr Andraos was responsible for investigating these allegations together with Ms Milenkovski, the Acting Senior Human Resources Consultant.

In the course of investigating Mr Anevski's allegations, Ms Milenkovski and Mr Andraos interviewed Mr Dimovski on 6 April 2009. A report of this meeting was sent to Mr Dimovski for his comments together with Mr Dimovski's Memo to Ms Milenkovski setting out his recollection of what he said.

Sometime in March or April 2009 another Security Officer, Mr Calligas spoke to Mr Andraos about several discussions he had had with Mr Dimovski. Ms Milenkovski and Mr Andraos interviewed him as part of the investigation into Mr Anevski's complaint against Mr Demigilio. As a result of what Mr Calligas told Ms Milenkovski and Mr Andraos, they decided to appoint an External Investigator to investigate Mr Calligas' allegations regarding Mr Dimovski.

In September 2009 Mr Andraos was approached by another Security Officer, Mr Vay who had been working in the Security Department for a few months. He told Mr Andraos that he was thinking of quitting his job and told Mr Andraos about remarks Mr Dimovski had made to him. Mr Andraos passed this information to the Human Resources Department.

In November 2009 Mr Kotevski was investigated for misconduct after a contractor Security Officer reported having seen him hide a prohibited weapon. Mr Kotevski's employment was terminated in July 2010. On 24 January 2010, after Mr Kotevski had received a show cause notice in relation to the baton incident, Mr Kotevski wrote to the Chief Executive alleging that Mr Andraos had engaged in corrupt conduct. In his letter Mr Kotevski alleged that Mr Andraos had a two hour meeting with Mr Hugon and that in the meeting Mr Andraos disclosed confidential information to Mr Hugon regarding his employment with the area. Mr Kotevski also alleged he saw Mr Hugon hand documents to Mr Andraos. Details of Mr Kotevski's allegations were provided to the External Investigator who was instructed to investigate them in his April 2010 report. The External Investigator found that there was no evidence that Mr Andraos had acted improperly as alleged by Mr Kotevski.

After the External Investigator's report was issued in April 2010, both Mr Dimovski and Mr Kotevski wrote separate letters of complaint dated 28 May 2010 to the NSW Ombudsman alleging a range of matters involving staff in the Security Department.

Mr Andraos believes that the use of the words "faggot", "poof" and "cock breath" are homophobic and offensive to himself and to others working in the Security Department and it is unacceptable. The fact that these words were used by Mr Dimovski when talking about a Supervisor, Mr Demigilio, erodes the chain of command.

Mr Andraos was concerned that at the same time as making these comments, Mr Dimovski further undermined Mr Demigilio by suggesting to a junior officer, Mr Vay, that if enough complaints were made about Mr Demigilio in his role as Security Operations Manager, he would not be made permanent.

In relation to Mr Dimovski's Statement (Exhibit 1) filed on 5 January 2011 Mr Andraos stated:

Paragraph 7- This is the first time that Mr Andraos heard these allegations with the exception of the allegations regarding fruit and vegetable made for the first time in April 2009 and which were found to be unsubstantiated in the External Investigator's report of April 2010.

Paragraph 7 - Mr Dimovski raised this with Mr Andraos for the first time when he was investigating Mr Anevski's formal complaint in April 2009, some 5 years after it was allegedly sent.

Paragraph 10 - This is incorrect. The Security Industry Act permits provisional licence holders to work as Security Officers provided that they are properly supervised by a licence holder. There is to Mr Andraos' knowledge no NSW Health or Area Policy that provides otherwise.

Paragraph 25 - This is incorrect. Mr Calligas and Mr Andraos have a working relationship with limited contact outside of work. Mr Calligas and Mr Andraos have not shared family holidays.

Paragraph 30 - All complaints of bullying and harassment made to Mr Andraos or referred to Mr Andraos were investigated by Mr Andraos.

Paragraph 31 - Mr Andraos has never received complaints concerning physical or verbal abuse by Mr Calligas against patients. If Mr Dimovski had reported this to Mr Demigilio and he had taken no action, Mr Andraos is certain Mr Dimovski would have approached him or Mr Skleparis about such a serious allegation.

Paragraphs 39 - 42 - Mr Andraos met Mr Hugon once by chance on 19 August 2009. Mr Andraos has not met him before and have not seen Mr Hugon since that time. The two did not discuss work. Mr Dimovski's claims in paragraph 42 are fictitious.

Paragraph 43 - 49 - Mr Andraos did speak with Mr Dimovski in relation to a note book that had been found lying around in the Security Office. Mr Andraos asked Mr Dimovski if the note book belonged to him. Mr Dimovski said it did. Mr Andraos then asked him to explain why Mr Demiglio's computer password was written down in the book. Mr Dimovski said that he did not know. At no time during this meeting did Mr Dimovski raise concerns about Mr Calligas or Mr Vay.

Paragraph 50 and 51 - Mr Andraos said apart from a chance meeting with Mr Hugon on 19 August 2009, he has never come into contact with Mr Hugon.

Paragraph 52 - Mr Andraos does not recall any such conversation.

Paragraph 56 - At no stage did Mr Dimovski advise Mr Andraos of any diagnosis of cancer. His medical certificates all showed that he was suffering from an unspecified medical condition.

In relation to Mr Dimovski's Statement (Exhibit 1) filed on 5 January 2011 Mr Andraos stated:

None of the alleged incidents concerning Mr Demigilio were notified to Mr Andraos by Mr Mofardin or by anyone else. Paragraph 20 - This is untrue. Mr Andraos had coffee with Mr Calligas from time to time, as he has done with other hospital staff.

Mr Andraos gave evidence in cross-examination that he and the Operations Manager had access to new Note Books. He gave evidence that he opened the cupboard and took the Note Books in any order out of the cupboard. He said the Note Book numbers were not in any numerical order. He said it was not possible for a Security Officer to obtain a Note Book for himself or herself.

In relation to the Note Book Register (Exhibit 10), Mr Andraos could not explain why there was a gap of approximately 2 years between the Note Book issued to Mr Kotevski on 10 November 2007 and the Note Book issued to C. Wright on 18 September 2009 as he only commenced working in the Department in December 2008.

In respect of restraining of patients, Security Officers only work under the direction of a clinician. The clinicians are always present during the restraint of a patient. Security Officers are never left alone with a patient before or after a restraint. If there is a risk of the patient absconding the Securing Officer remains outside the door. A clinician would send an email to Mr Andraos if there was excessive use of force. Mr Andraos has not yet received any emails from an clinician complaining of excessive use of force.

Mr Andraos said a two year gap between the issuing of a Note Book in November 2007 and the issuing of a Note Book in September 2009 does not mean that there were no Note Books issued between those times.

Mr Andraos agreed that below C. Wright's name, issued with a Note Book on 18 September 2009, there appeared a number of changes in registration numbers. Mr Andraos said that this was because they were of a different batch, they do not come in any numerical order.

Mr Andraos said he signed off on Mr Vay's Note Book on 20 June 2009. Mr Vay's Note Book does not appear in the Register of Note Books (Exhibit 10). Mr Andraos agreed. It was put to Mr Andraos that Mr Vay's Note Book number 103421 was not issued on 20 June 2009. Mr Andraos replied that he thought it was.

Despite Mr Andraos' earlier evidence that no Note Books were issued between December 2008 and September 2009, he issued a Note Book to Mr Vay on 20 June 2009 without it being registered in the Register of Note Books (Exhibit 10).

It was put to Mr Andraos that he provided a Note Book to Mr Vay after the event so that Mr Vay could put in false entries against Mr Dimovski. Mr Andraos denied this.

Mr Calligas heard Mr Dimovski's inappropriate language and derogatory comments about Mr Demigilio and he said he made a complaint to Mr Andraos in April 2009. It was put to Mr Andraos that prior to April 2009 Mr Dimovski had raised issues about Mr Calligas' abuse of mental health patients. Mr Andraos said Mr Dimovski did not raise the issue of Mr Calligas' abuse of mental health patients.

It was put to Mr Andraos that in September 2009 Mr Dimovski complained to him about Mr Calligas' and Mr Vay's physical and verbal abuse of mental health patients and also Mr Calligas' distribution of inappropriate X-Rays. Mr Andraos denied this.

Mr Andraos and Ms Culbert gave a verbal briefing to the External Investigator. Mr Andraos agreed that his role was to enable the External Investigator to make an unbiased independent investigation of the issues.

It was put to Mr Andraos that he was trying to influence the External Investigator. Mr Andraos said he was providing a briefing for the External Investigator.

During the briefing the External Investigator was not provided with Mr Dimovski's response nor had the allegations been put to Mr Dimovski at this time. Mr Andraos agreed.

Mr Andraos agreed that nowhere in Mr Vay's Note Book (Exhibit 4) does he say that Mr Dimovski is trying to set up Mr Demigilio, despite the fact that this was what Mr Andraos told the External Investigator in his briefing. Mr Andraros agreed that what he told the Eternal Investigator was incorrect.

Mr Andraos agreed that in the course of his briefing with the External Investigator he offered views as to the credibility of witnesses. In particular Mr Andraos asserted views about the credibility of Mr Dimovski and his views as to whether or not the allegations were true.

It was put to Mr Andraos that as a Security Manager and as a witness he attempted to influence the External Investigator. Mr Andraos denied this. It was put to Mr Andraos that the reason why he had wanted to influence the External Investigator was because he did not want Mr Dimovski in his position. Mr Andraos denied this.

Mr Andraos said it was incorrect that he had issued Note Books late to Mr Vay and Mr Calligas; that he had provided Mr Vay and Mr Calligas with copies of the Shift Log entries so they could copy out relevant entries; and that he had fabricated entries in respect of Mr Dimovski.

It was put to Mr Andraos that:

in December 2008 complaints were made to him by Security Officers that Mr Calligas had been physically abusive of mental health patients;
in March 2009 Mr Dimovski informed him that he had been approached by Mr Anevski, Mr Mofardin and Mr Kotevski that Mr Calligas continued to physically and verbally assault mental health patients and that he was continuing to distribute inappropriate photocopies of Patient X-Rays;
that Mr Dimovski had informed him that he had personally warned Mr Calligas not to assault mental health patients and since Mr Dimovski's initial complaint to Mr Demigilio in January 2009, Mr Calligas was ignoring him;
that Mr Calligas was spending a considerable amount of time with Mr Andraos in his office and that made it difficult for Mr Dimovski to control Mr Calligas;
Mr Calligas was spending time with Mr Andraos orchestrating the dismissal of Mr Dimovski;
he said to Mr Dimovski "I run this Department, not you. I will run it anyway I see fit";
on 15 September Mr Dimovski informed him that Mr Vay had said words to Mr Dimovski to the effect of, "the patient in 6 South will no longer give us any problems because me and Petro fixed him up the night before"'
in response to Mr Dimovski's complaint Mr Andraos said "well you know, they are young guns and their adrenalin is rushing and they also want to demonstrate their toughness";
he did nothing about these complaints of Mr Dimovski;
he had informed Mr Calligas and Mr Vay of these complaints and that gave them the motive for making complaints against Mr Dimovski; and
he, Mr Calligas, Mr Vay and Mr Robinson have colluded in order to orchestrate Mr Dimovski's dismissal.

Mr Andraos denied all of these claims.

The Applicant's Submissions

The applicant submits that the termination of Mr Dimovski's employment by the respondent was unjust, unreasonable and/or harsh.

It was unjust on the basis that the applicant was not guilty of the alleged misconduct - that is the respondent could not have been and neither can the Commission be, comfortably satisfied to the requisite standard that the applicant engaged in the alleged misconduct.

It was unreasonable because it was decided on inferences which could not reasonably be drawn from the material before the respondent.

It was harsh as, even if, contrary to the submissions of the applicant, it is found that the applicant did engage in the alleged misconduct, his termination was disproportionate to the gravity of the misconduct having regard to:

the applicant's period of service;
the fact that no warnings had ever been issued to the applicant in respect of the alleged conduct;
the alleged intention of the applicant (i.e. to "get rid of" Mr Demiglio) did not result in the removal of Mr Demiglio from his employment; and
the consequences for the personal and economic situation of the applicant.

BACKGROUND

In September 2008, Acting Security Manager, Mr Hugon was stood down from his position for allegedly distributing inappropriate emails on the Hospital email system. Mr Dimovski's evidence is that at or around this time Mr Hugon made comments to various individuals that he believed Mr Dimovski to be responsible for reporting Mr Hugon to Management. Mr Hugon also made threats that he would tell the Human Resources Department "everything and anything" he could think of to "take everyone down". Critically, Mr Hugon has not been called as a witness for the respondent to confirm or deny that this occurred. Pursuant to the rule in Jones - V - Dunkel an inference can be made, and should be, drawn that Mr Hugon's evidence in respect of this incident could not have assisted the respondent.

Mr Dimovski alleges that Mr Calligas was "good friends" with Mr Hugon at around this time.

In or around September 2008 Mr Demigilio was appointed to the position of Acting Security Manager. In or around December 2008, Mr Demigilio said to Mr Dimovski that he had received complaints from several individuals that Mr Calligas was very aggressive towards patients. Critically, once again, the respondent has not called Mr Demigilio as a witness to confirm or deny this conversation. Pursuant to the rule in Jones - V - Dunkel an inference can be, and should be, drawn that Mr Demiglio's evidence in respect of this conversation would not have assisted the respondent. Mr Dimovski suggested to Mr Demigilio that he moved Mr Calligas to his team so that he could keep an eye on Mr Calligas and train him properly.

In December 2008 Mr Andraos was appointed to the role of Security Manager and Mr Demigilio became the Operations Security Manager.

At the end of January 2009, Mr Dimovski informed Mr Demigilio that he had been approached by a number of Security Officers who had raised concerns that Mr Calligas was physically and verbally assaulting mental health patients and that Mr Calligas was breaching Hospital Policy by distributing photo copies of patient's X-Rays depicting foreign objects in rectums and vaginas. Mr Demigilio indicated that he would speak to Mr Andraos about it. It is unclear as to whether an investigation ensued. Once again, the respondent has not called Mr Demigilio as a witness to confirm or deny this conversation. Pursuant to the rule in Jones - V - Dunkel an inference can be, and should be, drawn that Mr Demiglio's evidence in respect of this conversation would not have assisted the respondent.

Following Mr Dimovski's reporting of this incident, Mr Calligas' behaviour changed towards Mr Dimovski.

In the beginning of March 2009 Mr Dimovski informed Mr Andraos that Mr Dimovski had been approached by Mr Anevski, Mr Mofardin and Mr Kotevski, who had raised concerns that Mr Calligas continued to physically and verbally assault mental health patients and was continuing to distribute inappropriate photo copies of patient's X-Rays.

At this time Mr Dimovski also informed Mr Andraos that:

he had personally warned Mr Calligas not to assault patients;
since his initial complaint to Mr Demigilio, Mr Calligas was now ignoring Mr Dimovski; and
since Mr Calligas was spending a considerable amount of time in Mr Andraos' office and following Mr Andraos around everywhere, it is difficult for Mr Dimovski to monitor/control Mr Calligas.

In response to Mr Dimovski's concerns, Mr Andraos said "I run this Department not you. I will run it anyway I see fit".

On 26 March 2009, Mr Dimovski was given a letter informing him that he was required to attend an interview in relation to an investigation of a complaint by Mr Anevski against Mr Demigilio. On 4 April 2009, Mr Dimovski attended the interview.

On 7 April 2009, Mr Calligas was interviewed by Mr Andraos and Ms Milenovski (Acting Senior Human Resources Consultant) in respect of the complaint by Mr Aneveski against Mr Demigilio. In the course of the investigation Mr Calligas made allegations that:

Mr Dimovski had made comments that "if enough complainants were put forward against Joseph [Demigilio] then Joseph [Demigilio] would never get the permanent Operations Manager role";
some Security Officers refer to Joseph Demigilio as a "poof" behind Joseph [Demiglio's] back; and
Mr Dimovski had referred to Mr Demigilio as a "poof" behind Mr Demiglio's back.

On 15 September 2009 Mr Dimovski informed Mr Andraos that Mr Vay had:

said words to the effect of: "the patient in 6 South will no longer give us any problems because me and Petro Calligas fixed him up the night before"; and
on a separate occasion, put a patient in a headlock.

In response to Mr Dimovski's complaint, Mr Andraos said words to the effect of "well you know they are young guns and their adrenalin is rushing and they also want to demonstrate their toughness".

In September 2009, Mr Vay made a complaint about Mr Dimovski alleging that Mr Dimovski had frequently used derogatory language about Mr Demigilio. Mr Vay's evidence, in cross-examination, was that this occurred after the complaint referred to above (despite denying that Mr Dimovski had made such a complaint).

On 30 September 2009 an External Investigator was engaged to investigate a broad range of issues regarding the affairs in the Security Department. Mr Vay's complaint was also included in the investigation to be conducted by the External Investigator.

The Investigation by the External Investigator

The applicant submits that the investigation conducted by the External Investigator was compromised by the verbal briefing provided by Mr Andraos. On the evidence, it is clear that Mr Andraos' intention was to influence the investigation so that it was biased against Mr Dimovski.

In particular, in the course of the briefing, Mr Andraos said to the External Investigator (pages 53 - 58 of Mr Towarnicki's Statement) that:

a particular cluster of Security Officers including Mr Kotevski, Mr Dimovski and Mr Anevski were targeting Mr Demigilio with a range of complaints which, if substantiated, would have affected Mr Demiglio's position. Mr Andraos admitted in cross examination, that he had no evidence of Mr Dimovski targeting Mr Demigilio with complaints.
Mr Dimovski is the unofficial leader of this group. This assertion was merely opinion and/or speculation on the part of Mr Andraos.
this group of workers are defensive, evasive and cunning. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Dimovski has never been subject of a complaint against him, but he coordinates complaints to Management using other Security Officers as pawns. In cross-examination, Mr Andraos conceded that he had no evidence to support this assertion.
the group referred to are happy to fabricate allegations. In cross-examination, Mr Andraos conceded that he had no evidence that Mr Dimovski had fabricated allegations.
the activities of this core group of Security Officers can be summarised as a culture of bullying upwards; that is targeting superior managers. This assertion was merely opinion and/or speculation on the part of Mr Andraos.
there are rumours that this core group have been involved in taking locked doors of their hinges to gain access to offices and drugs. In cross-examination, Mr Andraos conceded that it was inappropriate to make this comment. The comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Andraos took possession of a notebook that had been found with the name 'Dimeglio' written inside of it. The notebook belonged to Mr Dimovski but Mr Dimovski could not explain the entry. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
in any interview, Mr Dimovski quickly deflects questions but can also become quickly agitated with regards to issues which impact upon him. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
the primary background to the complaints engineered by the group under the leadership of Mr Dimovski is about overtime. In cross examination, Mr Andraos conceded that he had no evidence to support this assertion.
Mr Calligas has a record of being told by Mr Dimovski that "if we put enough complaints in about Joseph, he wont get the job". This comment was inappropriate in the manner in which it was delivered. Especially having regard to Mr Andraos' following comment that Mr Vay's complaint supports Mr Calligas' assertion. Mr Andraos conceded in cross-examination that he did not inform the investigator of Mr Dimovski's denial of the allegations (as at that stage Mr Andraos had not put the allegations to Mr Dimovski). This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Vay has made a new Protected Disclosure. There was no basis on which Mr Vay could be considered a Protected Person.
Mr Vay is a "nice bloke". This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Vay and Mr Calligas unknowingly 'co-oberate' each other (Mr Dimovski assumes this is meant to say 'corroborate'. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Dimovski has been soliciting both Mr Vay and Mr Calligas to join the clique to take the consequences. Mr Vay's evidence, in cross-examination, in respect of this issue is important. During his interview, with the External Investigator, Mr Vay asserted that he had been threatened by Mr Dimovski in respect of 'being one of them'. Mr Vay said he was 'spun out' by Mr Dimovski's threat. However, during cross-examination, when questioned as to why there was no entry in his Security Officer's Notebook about the incident, Mr Vay said he was not overly concerned about Mr Dimovski's alleged threat. Mr Dimovski submits that Mr Vay's allegation that Mr Dimovski threatened him is untrue. Mr Vay's evidence in relation to this issue is not credible. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Vay and Mr Calligas have both made notebook entries of the attempts of Mr Dimovski and his group to set up Mr Demigilio and themselves. When shown a copy of Mr Vay's Security Officers Notebook in cross-examination, Mr Andraos conceded that his comment to the investigator was incorrect, as Mr Vay has never made any such entry. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Anevski is Mr Dimovski's second in charge and next in line is Mr Kotevski. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
Mr Anevski's workers' compensation claims were 'unlike anything Andraos had ever seen'. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.
that Mr Andraos was frustrated that the situation now confronting his Management and Human Resource Management at the Hospital is the result of Management inaction and a festering of the problem where it is now necessary to deal with the matter to give him a sound operational team. This comment was clearly intended to influence the investigator and/or cause the investigator to be biased against Mr Dimovski.

The comments made by Mr Andraos in the course of his briefing to the External Investigator were based on hearsay, speculation, opinion and rumour. It was not appropriate for Mr Andraos to make such comments.

As a consequence the External Investigator took a biased approach to interviewing witnesses and making his findings. His views in respect of Mr Dimovski were tainted from the start.

As a result during the investigation process the report was impartial, flawed and consequently worthless.

In October 2009, prior to the commencement of the interviews of the External Investigator, Mr Hugon approached Mr Dimovski at the respondent's premises and said "Hey you fucken dog. Your days and the days of the dogs around you are numbered, as I told Mr Anevski, you're all going down". Mr Dimovski reported the incident to Mr Demigilio but nothing was done about it. The respondent has not called Mr Hugon as a witness to confirm or deny the conversation. Pursuant to the ruling in Jones - V - Dunkel an inference can be made, and should be, drawn that Mr Hugon's evidence in respect of this conversation would not have assisted the respondent.

On 8 December 2009, Mr Dimovski received a letter requesting that he attend a meeting to respond to allegations that he acted in a derogatory manner and spoke words of insult regarding Mr Demigilio with the intention of preventing and/or removing Mr Demigilio from his position in an improper (unlawful) way.

Mr Dimovski informed Mr Andraos that he had been diagnosed with cancer and asked if the interview could be postponed as he was in no condition to attend. Mr Dimovski's request was denied and he was interviewed by the External Investigator on 10 December 2009. During the course of the interview, Mr Dimovski was asked why people would make such allegations against him. In response Mr Dimovski said: "well give me the names and I may be able to share the light you know why ... Give me the name and I ma be able to actually answer that". The External Investigator refused to provide Mr Dimovski with the name of the persons (namely Mr Calligas and Mr Vay) on the basis that they were Protected Persons.

However it appears from the Investigation Report at the time of the briefing, Mr Calligas had already been exposed as a Protected Person (page 56 of Mr Towarnicki's Statement (Exhibit 7)). On this basis, there was no basis for the External Investigator's refusal to provide Mr Dimovski with Mr Calligas' name. Mr Dimovski if he had known of Mr Calligas' name he could have given the reasons Mr Calligas had made the complaint:

because Mr Dimovski had made complaints about Mr Calligas physically and verbally assaulting Mental Health Patients;
to collude with Mr Hugon to orchestrate Mr Dimovski's dismissal;
to be promoted to the Senior Security Officer position in preference of others; and
to be allowed to stay in the Security Department as a full-time Security Officer.

The External Investigator's failure to provide Mr Dimovski with this critical information undermines the accuracy and/or validity of the investigation.

In April 2010, the External Investigator provided his report into his investigation of the allegations.

Note Book Entries

The External Investigator placed heavy reliance on Note Book entries by Mr Vay and Mr Calligas which purportedly recorded times at which Mr Dimovski had made derogatory remarks about Mr Demigilio.

Mr Dimovski submits that the Note Book entries were fabricated entries which were recorded at a later date for the purpose of orchestrating the termination of Mr Dimovski's employment.

Significantly, in this respect, the evidence demonstrates that:

prior to 24 November 2009, Security Officer Notebooks were being issued with a Registration Number beginning with the letter "N".
between November 2007 and September 2009, there is no record of Security Officer Note Books being issued.
the evidence of Mr Andraos in cross-examination was that between December 2008 and September 2009, no Security Officer Note Books were issued.
the evidence of Mr Andraos in re-examination was that Security Officer Note Books (of a different batch) are ordered some months prior to the current batch running out.
the evidence of the Respondent's witnesses was that they were issued with their Security Officer Note Books on or around the time they commenced employment with the Respondent.
Mr Calligas commenced employment on 18 August 2008 (during which time there is no record of Security Officer Note Books being issued) and Mr Vay was purportedly issued with a Security Officer Note Book on 20 June 2009 ( a time at which Mr Andraos says no Security Officer Note Books were issued).
curiously, Mr Calligas' Note Book has a registration number of 103436 despite purportedly being issued at a time when the Security Officer Note Books had registration numbers beginning with the letter "N". Even if we were to accept that Mr Andraos' evidence that Security Officer Note Books (of a different batch) are ordered some months prior to the current batch running out, it does not explain how Mr Calligas has obtained a Notebook of a different batch more than one year in advance to them being put into use.
in cross-examination, Mr Andraos conceded that there was a discrepancy in respect of the recording of when Mr Vay's Note Book was issued to him. He could not offer any explanation for the discrepancy.

Mr Dimovski submits that the clear objective evidence set out above compels a finding that the Security Officer Note Books which purportedly records instances where Mr Dimovski has made derogatory remarks about Mr Demigilio were issued after the event and were fabricated with the purpose of orchestrating Mr Dimovski's dismissal.

However, even if the Commission is not prepared to make such a finding, the evidence is sufficient and persuasive enough to satisfy the Commission that the respondent has not proved on the balance of probabilities that Mr Dimovski engaged in the alleged misconduct. That is, there is sufficient doubt as to the validity and contemporaneity of the purported entries such that the evidence of the entries cannot be given much, if any, weight.

Respondent's Decision To Dismiss

On the basis of the report of the External Investigator, Mr Towarnicki recommended the termination of Mr Dimovski's employment but provided Mr Dimovski with the opportunity to show cause as to why that should not occur.

On 26 July 2010, Mr Dimovski responded to the respondent's show cause letter. On 26 October 2010, Mr Dimovski's employment with the Respondent was terminated effective immediately on the grounds of serious breach of the NSW Health Code of Conduct.

In cross-examination, Mr Towarnicki conceded that he did not conduct his own analysis having regard to:

the fact that Mr Dimovski is a man of advancing years with long service;
Mr Dimovski's unblemished employment record;
the consequences for Mr Dimovski if he were to be dismissed such as:

(i) pecuniary considerations;

(ii) such as loss of self-esteem and confidence;

(iii) difficulty in obtaining future employment and loss of social standing; and

iv) tremendous upset upon the individual concerned and his family.

in determining whether or not the alleged conduct actually occurred. Rather, as Mr Towarnicki's evidence suggests, the Respondent relied on the findings of the Investigation and only considered whether or not dismissal would be harsh given the findings.

It is submitted that Mr Towarnicki failed to apply the correct principles in making the recommendation to terminate Mr Dimovski's employment.

The Respondent Was Not (And The Commission Cannot Be) Comfortably Satisfied That The Alleged Conduct Occurred

The Respondent has conceded that it bears the onus of proving that Mr Dimovski engaged in the conduct alleged.

The correct approach in considering whether the Commission can be reasonably satisfied that the allegation has been proven, is to apply that well known test established by the High Court in Briginshaw - V -Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Franklins Limited - V - Webb 72 IR 257.

The evidence demonstrates that the Respondent could not have been satisfied that the alleged misconduct occurred at the time of making its decision, as Mr Towarnicki did not consider any of the factors he was required to consider prior to deciding whether or not the alleged misconduct occurred. Rather, he accepted the facts found in the Investigation as being correct and merely focussed on whether or not dismissal would be too harsh.

Having heard all the evidence Mr Dimovski submits that the Commission cannot be comfortably satisfied that the alleged misconduct occurred.

In reaching such a conclusion the Commission will have regard to:

the uncontested evidence of Mr Dimovski that he had complained to Mr Demigilio about Mr Calligas's physical and verbal assaults on Mental Health patients in January 2009;
shortly thereafter, in April 2009, Mr Calligas made an unsolicited comment during an investigation (into a complaint by Mr Anevski that he had been harassed by Mr Demigilio) that Mr Dimovski had made derogatory remarks about Mr Demigilio and was conspiring with others with a view to remove Mr Demigilio from his position;
the uncontested evidence of Mr Dimovski that he had in fact encouraged and assisted Mr Demigilio to obtain the relevant position;
that despite an alleged recommendation (at an unknown time) that an External Investigator was to be appointed to investigate Mr Calligas' allegations, no External Investigator was appointed until 30 September 2009;
the evidence of Mr Dimovski that he complained to Mr Andraos about Mr Vay's behaviour on 15 September 2009;
shortly thereafter, in September 2009, Mr Vay made a complaint to Mr Andraos that Mr Dimovski had made derogatory remarks about Mr Demigilio and was conspiring with others with a view to remove Mr Demigilio from his position;
on or around 23 September 2009, the Respondent's Professional Practice Unit recommended that an External Investigator be appointed to consider the allegations that staff have conspired and fabricated allegations against Mr Demigilio in order to prevent him being appointed to the Operations Manager position.
on 30 September 2009, an External Investigator was appointed to investigate matters raised by the recommendation;
curiously, Mr Andraos (a witness in the investigation) provided the verbal briefing to the External Investigator in the manner set out above and effectively tainted the investigation from its inception;
further the investigator, improperly, placed heavy reliance on the Security Officer Note Book entries made by Mr Calligas and Mr Vay (the validity and contemporaneity of which has been dealt with above);
Mr Dimovski denies having engaged in the conduct alleged;
Mr Anevski, Mr Kotevski and Mr Mofardin gave evidence that they never heard Mr Dimovski say the things alleged and deny that Mr Dimovski conspired and fabricated allegations against Mr Demigilio in order to prevent him being appointed to the Operations Manager position;
Ms McCamley's Statement confirms that she never witnessed Mr Dimovski engage in the conduct alleged; and
Mr Dimovski has had an unblemished 22 years of service with the Respondent.

There is no way, having regard to all of the available evidence that the Commission can be comfortably satisfied as to the requisite standard that Mr Dimovski engaged in the misconduct alleged.

Dismissal Unreasonable

Even if the Commission is satisfied that Mr Dimovski made the derogatory remarks alleged, there is little (if any) evidence that the remarks were made with the intention alleged.

Viewed in isolation, the alleged remarks are not grounds for dismissal. At best, the only findings the Commission could make are:

in December 2008, Mr Dimovski called Mr Demigilio a "poof" in front of Mr Calligas in December 2008;
in December 2008, Mr Dimovski said that Mr Demigilio is a "faggot" and that he has "bad breath" because he must be "sucking cock";
in July 2009, Mr Dimovski called Mr Demigilio a "poof in front of Mr Vay; and
in August 2009, Mr Dimovski said to Mr Vay that Mr Demigilio has "cock breath".

If the Commission accepts that the above occurred, the conduct would perhaps justify a first and final warning having regard to:

Mr Dimovski's age;
Mr Dimovski's 22 years of service; and
Mr Dimovski's prior unblemished record.

However there could not be any finding that Mr Dimovski engaged in such conduct for the purpose of undermining Mr Demigilio or for the purpose of preventing Mr Demigilio from being permanently appointed to the role of Security Operations Manager. If such a finding was made it would be based "inexact proofs, indefinite testimony, or indirect inferences" of the kind directly referred to in Briginshaw - v - Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

If Misconduct Is Found Dismissal Still Harsh

If the Commission is comfortably satisfied that Mr Dimovski engaged in the alleged misconduct, Mr Dimovski submits that the termination of his employment was still harsh, given the circumstances of his case in that the termination was disproportionate to the gravity of the misconduct in respect of which the respondent acted (Byrne - V - Frew [1995] HCA 24; 185 CLR 410 at 465).

Of relevance in this respect is:

the flawed investigation process;
Mr Dimovski's 22 years of service;
Mr Dimovski's age, being 60; and
the fact that Mr Dimovski has not received any warnings in relation to his conduct and/or performance at work.

Mr Dimovski also relies on New South Wales Attorney-General's Department - V - Miller [2007] NSWIRComm 33.

Remedy

Based on the principles in Perkins - V _ Grace Worldwide (Aust) Pty Ltd 72 IR 186, Mr Dimovski should be reinstated. Mr Dimovski submits that there has been no breakdown of the relationship of trust and confidence as described by the Respondent as the alleged "breakdown" is based on alleged misconduct for which Mr Dimovski was not guilty.

Alternatively if the Commission is satisfied that Mr Dimovski could not be reinstated to his previous position, Mr Dimovski submits that reemployment would be the appropriate remedy.

The respondent is a large organisation with a number of Hospitals in which Mr Dimovski could be reemployed.

Should the Commission make an order for reinstatement or reemployment, Mr Dimovski submits that an Order for back pay ought to be made. There is no disentitling conduct in respect of this issue having regard to the submissions above.

Further and in the alternative Mr Dimovski seeks monetary compensation in the amount of six months salary.

Respondent's Submissions

The respondent submits that the decision to dismiss Mr Dimovski was just, reasonable and in the circumstances it was not harsh. The grounds for that were that Mr Dimovski had engaged in serious misconduct, namely that on 9 and 11 December 2008 to Mr Calligas, 12 July and 5 August 2009 to Mr Vay, and more generally between February and November 2009 in the presence of Mr Robinson he included the word "faggot", "poofter" and "cock breath" which the respondent contends were derogatory and homophobic. The respondent submits that aggravating the making of these remarks were the fact that they were made for the purpose of undermining Mr Dimeglio's authority or having him removed from his position.

The External Investigation and subsequent decision to dismiss Mr Dimovski was conducted in a procedurally fair manner and in particular the factual findings in the Investigator's report were not the result of a biased investigation. The respondent submits that it has lost trust in Mr Dimovski's ability to perform the functions of his position and even if the Commission were to find the dismissal unfair or harsh it would, in the circumstances, be impracticable to reinstate Mr Dimovski.

It is not in dispute between the parties that the onus of proof in respect of serious misconduct is on the balance of probabilities which falls on the respondent. Central to the respondent's contention is that serious misconduct has occurred in the nature of Mr Dimovski's role. In crossexamination Mr Dimovski agreed that the role of the Senior Security Officer was important in the running of the Security Department in the following ways; he was responsible for the training and supervision of junior Security Officers and he was responsible for mentoring junior Security Officers.

Mr Andraos' evidence in his Statement (Exhibit 12), paragraphs 18 and 19, that the mentoring role is important because security work in a Hospital can be confronting and sometimes upsetting for new Security Officers, many of whom have not worked in a hospital before.

Mr Dimovski was also responsible for supporting the chain of command system in the Security Department and Mr Dimovski conceded this in crossexamination and the chain of command has junior officers reporting to the Senior Security Officer on their shift, the Senior Security Officer reports to the Security Operations Manager, who at all relevant times was Mr Dimeglio and the Security Operations Manager reports to the Security Manager, who from December 2008 was Mr Andraos. Mr Andraos reported directly to the Director of Corporate Services, Mr Skleparis.

In his Statement (Exhibit 12), Mr Andraos said that if an Officer had a concern that he was unable to address at the next level up in the chain of command, the Officer could take it up with someone more senior, such as Mr Andraos. An instance of this is the evidence of Mr Dimovski given in cross-examination when he agreed that prior to Mr Andraos commencing his position in December 2008 he had sent emails about operational matters to Mr Skleparis.

Another important function of the Senior Security Officer was the position of trust held with respect to members of the public and clinical staff, who depended on Mr Dimovski to exercise his judgment appropriately.

Finally, Mr Dimovski agreed in crossexamination that his functions required honesty, as a Senior Security Officer is required to write reports which may later be used in legal proceedings. The functions which the respondent described are reflected in the position description.

In addition to the importance of the role of the Senior Security Officer in the Security Department, Mr Dimovski was in 2008 the longest serving Security Officer in the Security Department. Indeed Mr Dimovski in 2008 had been working at St George Public Hospital in various capacities for almost 20 years. Mr Mofardin agreed in crossexamination that he considered Mr Dimovski to be the "boss". Mr Vay's evidence was that Mr Mofardin had told him that Mr Dimovski was the "General". In his transcript of interview with the External Investigator, Mr Robinson said that Mr Mofardin had told him Mr Dimovski was the "boss".

In view of Mr Dimovski's seniority and experience and the fact that he held the position of Senior Security Officer he was usually given new junior security officers to train. Mr Andraos' evidence, at paragraph 20 of his Statement (Exhibit 12) was that Mr Dimovski would in fact ask Mr Andraos to make sure he got the new officers.

On 9 December 2008 Mr Dimovski was rostered on shift with Mr Calligas. In the course of that shift Mr Calligas alleges that Mr Dimovski said referring to Mr Demigilio "he always has bad breath." Mr Dimovski called Mr Demigilio a "faggot" and said, "he always has bad breath, he must suck cock." Mr Calligas said, "he's all right", and then Mr Dimovski said to him, "are you fence seater?" to which Mr Calligas replied, "I'm just here to work." Mr Calligas made a note of that discussion in his Note Book for that day. Mr Calligas was next rostered on shift with Mr Dimovski on 11 December. So two days later Mr Dimovski said to him, "if we put in a lot of complaints against Mr Demigilio he won't get the job."

The respondent's submission is that the job being referred to was Mr Dimeglio status as Security Operations Manager being made "permanent", as opposed to "acting". Mr Calligas was disturbed to hear those remarks and in crossexamination said, "he didn't feel comfortable reporting the matter because he was still new at that time", having started in early August 2008.

On 12 July 2009, some 6 months later, Mr Dimovski was again given a newly recruited junior officer, by the name of Mr Vay. He was supervised by Mr Dimovski. On one of the first shifts that they worked together he said to Mr Vay, "what do you think about poofs?". Mr Vay was surprised to hear this and he replied, "I've got no problems with anyone, as long as there is a mutual respect both ways." Mr Dimovski then said that, "Joseph Dimeglio's a poof. He shouldn't be in his position." On 5 August, so roughly three weeks after that, Mr Vay was again rostered to work with Mr Dimovski who said to him during the shift, "If you get close enough to Joseph (Mr Demigilio), he has cock breath." Mr Vay was disturbed to hear this, but he decided against reporting the matter because at the time he had been employed for about two months.

In the period between February and November 2009 Mr Robinson was working as a junior Security Officer in the Security Department. Mr Robinson heard Mr Dimovski make derogatory remarks about Mr Demigilio including the word "faggot." Another of the respondent's witnesses, Ms McCamley, was employed as a Security Officer at St George Public Hospital in 2008 and 2009. However, between April 2008 and January or February 2009 Ms McCamley was seconded to another Department and she left the Security Department permanently in September 2009. She did not hear Mr Dimovski make derogatory remarks about Mr Dimeglio. The respondent's submissions are that those remarks, alone, were disrespectful and were meant to harass Mr Dimeglio. They were discriminatory in the sense that they were derogatory remarks in respect to Ms McCamley's homosexual orientation.

For all of these reasons the remarks that Mr Dimovski made were in breach of his obligations under the New South Wales Health Code of Conduct. Mr Dimovski in crossexamination conceded that he had read the Code of Conduct and understood that it applied to him in his job.

Now in the respondent's submission the matter doesn't end there, because there were a number of aggravating factors that turned what was already significant misconduct into serious misconduct. The first aspect is that these remarks were made more than once and over a period of time between December 2008 and November 2009. This was not a oneoff lapse of judgment on the part of Mr Dimovski, they were repeated remarks. The remarks that were made in the presence of Mr Robinson were made in the Security Office in a public area or a common area. The second aggravating factor, the remarks were made as part of a concerted campaign by Mr Dimovski to undermine Mr Dimeglio's authority and possibly have him removed from his job. Now to explain that it is necessary to explain a little bit of the history of the complaints that were being made against Mr Dimeglio in late 2008 to mid 2009.

The respondent's case is that initially relations between Mr Dimovski Mr Demigilio were amicable. Mr Dimovski claims that he was supportive of Mr Dimeglio's promotion to the role of acting Security Operations Manager in mid 2008 and this has not been challenged by the applicant. However, by the end of 2008 Mr Dimovski, had become unhappy with what he saw as Mr Dimeglio's bullying and harassing of other staff. Mr Dimovski made or was involved in three complaints made in late 2008, early 2009 against Mr Dimeglio. One of the complaints was made by Mr Kotevski, another was made by Mr Dimovski, a third complaint was made by Mr Dimovski and Mr Kotevski.

It was put to Mr Dimovski in crossexamination that he was close colleagues with Mr Anevski and Mr Kotevski and also with Mr Mofardin. Mr Dimovski did not agree with that and described his relationship with those other employees as no more or no less friendly than with any other work colleague. In the respondent's submission, that is not the true position and that in fact Mr Dimovski was very close colleagues with the other three employees. Mr Vay, in paragraphs 8 and 9 of his Statement (Exhibit 2), refers to seeing Mr Dimovski, Mr Kotevski and Mr Anevski together in the office frequently. Ms McCamley also referred to them having a close relationship in her evidence. By the end of 2008 Mr Dimovski had formed an unfavourable view of Mr Demiglio's management style. This was put to Mr Dimovski in crossexamination and he agreed. He considered Mr Dimeglio to be bullying and harassing other staff. Mr Anevski made a formal complaint of bullying and harassment against Mr Dimeglio on 6 February 2009, plus one allegation of sexual harassment and Mr Dimovski was a witness in that investigation. The respondent refers to Mr Dimovski 's Statement (Exhibit I, Tab10) which was written by Mr Dimovski to Ms Milenkovski following a meeting he had had with the External Investigator to clarify some remarks he had made at that meeting. In that memorandum he said:

"GD added that approximately five years ago Mr Demigilio had made a sexual harassment complaint about Mr Hugon. GD also added that JD had sent him an inappropriate email of naked males some time ago in 2004 and 2005.

GD said that it was sent to his work email address and that he saved it on his zip drive and kept it at home. RA asked GD, why he thought he needed to keep this email for four years if he found it so offensive. GD replied, 'Why shouldn't he have kept it?'."

In the respondent's submission Mr Dimovski had information which he considered to be evidence of inappropriate conduct by Mr Demigilio and he had "sat on" that information for 4 or 5 years until such time as it suited Mr Dimovski to provide it to Management.

Mr Mofardin, in cross-examination, said he had seen the same thing and that it had also occurred in about 2004. Once again, if true, this is information which Mr Dimovski had kept to himself until such time as it suited him to disclose it.

The last complaint, which has its origins in late 2008 and early 2009, related to Mr Dimeglio's direction to Mr Dimovski as well as to Mr Kotevski and Mr Anevski not to speak to each other in Macedonian whilst on duty. Mr Dimovski and the other 2 officers refused to accept this direction and complained to Mr Andraos and ultimately, they made a formal complaint with the Australian Human Rights Commission.

These complaints, in the respondent's submission, provide the context for the remarks Mr Dimovski made to Mr Calligas and Mr Vay. Mr Dimovski said to Mr Calligas, on 11 December 2008, "if we put in a lot of complaints against Joseph he won't get the job." On 12 July 2009 Mr Dimovski said to Mr Vay, "He (Mr Dimeglio) shouldn't be in his position." On 12 July 2009 Mr Andraos had issued his Investigator's report in relation to Mr Anevski's complaint, that report was dated 29 June 2009. Mr Anevski was unhappy with that result and asked for the finding to be given to the respondent's Professional Practice Unit for a paper review. In the respondent's submission, the remarks made to Mr Vay regarding the fact that Mr Dimeglio should not be in his position or would lose his job if enough complaints were made, was made at a time when Mr Dimovski was either involved in a complaint as a witness or a complainant himself. The remarks to Mr Calligas preceded Mr Anevski's complaint. In the respondent's submission, when Mr Dimovski made the derogatory remarks, he was doing so hoping to elicit a homophobic reaction from Mr Vay and Mr Calligas, turning them against Mr Demigilio.

The third aggravating factor is the fact that these remarks were made to junior Security Officers who had been working in the Security Department for a matter of months. It is submitted by the respondent that Mr Dimovski exploited his supervisory and mentoring role, for his own ends. In this regard, Mr Dimovski deliberately made the remarks. It was submitted that Mr Dimovski had deliberately made the remarks when he was alone with the junior officers and at the time of making the remarks he questioned both Mr Calligas and Mr Vay for the purpose of testing whether they would agree with him. He asked Mr Calligas, "are you a fence sitter?" He asked Mr Vay, "what do you think about poofs?"

The fourth aggravating factor is dishonesty which the respondent will deal with elsewhere in the submissions.

As to Mr Dimovski's allegation that Mr Vay and Mr Calligas fabricated their evidence. At the heart of this submission is that the Note Books were falsified and that they were falsified in fresh Note Books that were not the Note Books owned by Mr Vay and Mr Calligas at the time. In making this allegation Mr Dimovski bears an evidentiary onus to show that those Note Books were falsified. It is only then that the onus shifts to the respondent. In the respondent's submission, the Note Books upon examination show no sign, on their face, of having been doctored in some way. Both Mr Calligas and Mr Vay have entries in their Note Books which precede the dates of the entries in question in these proceedings. For Mr Calligas and Mr Vay to have fabricated their entries on the relevant dates they would have had to have fabricated all of the earlier entries as well. The paperwork regarding the issuing of the Note Books, namely the Security Note Book Register (Exhibit 10) is simply inconclusive. It does not assist Mr Dimovski. In the respondent's submission if the Commissioner is satisfied that the Note Book entries were not falsified then that is the end of the matter. If the Commissioner is satisfied that the Note Books were falsified, then that is the end of the matter too.

As far as the motives of Mr Vay and Calligas are concerned, what is important was what was in their minds at the time they made those Note Book entries. Mr Calligas's evidence is that nobody came to him to advise him that they were concerned about this use of excessive force, and indeed, his evidence is that he never used excessive force. This is corroborated by Mr Andraos' evidence that no complaint was ever made to him about either Mr Calligas or Mr Vay. The first document from Mr Dimovski, setting out his concerns, is his letter to the New South Wales Ombudsman, dated 28 May 2010, a month after the External Investigator's report. The same is true of Mr Kotevski's allegations against Mr Calligas and Mr Vay, other than to say that he foreshadowed serious concerns that he had, in a letter to the Chief Executive on 24 January 2010. Given the large number of complaints made by Mr Dimovski since 2008, it is not possible to accept that Mr Dimovski would have allowed these very serious complaints to "fall on deaf ears" without taking them further.

This serious misconduct, in the respondent's submission, has caused significant and irreparable damage to the employment relationship with the respondent. Mr Dimovski has failed to support the chain of command in the Security Department. Mr Dimovski has failed to supervise and mentor his junior staff appropriately, as he is required to do. Finally, he has refused to admit his actions and he has maintained to this day that he said nothing of the kind. In those circumstances, the respondent's submission is that the decision to dismiss Mr Dimovski was entirely justified.

The respondent's submission in relation to the conduct of the External Investigation is as follows. First, in Mr Towarnicki's Statement (Exhibit 7), the terms of reference are broad. The terms of reference include:

"The report should include any other findings made during the course of the investigation, for Management's consideration and appropriate action."

In the respondent's submission, that gave the External Investigator a fairly broad remit to look at any issues that came up, in connection with the alleged breach, namely the conspiracy to misuse public office and that is the reason for the briefing meeting with Mr Andraos and Ms Culbert on 22 October 2009.

Mr Towarnicki's said in reexamination that it is routine for a briefing to be provided to an External Investigator and that the representative of the respondent attending that meeting, generally included the Manager for the relevant Department or Unit. For that reason the briefing meeting was attended by Mr Andraos in his capacity as Security Manager. It cannot be disputed that at that meeting, Mr Andraos gave a very candid and detailed account of what he saw the issues to be. The words used by Mr Andraos in crossexamination were "It was how I saw it through my eyes". Mr Andraos conceded that one of the remarks he made at the briefing, was, with hindsight, wrong. Mr Andraos in his evidence said:

"I have spent a considerable amount of time answering the allegations. This has taken my time and resources away from daytoday management of the Security Department. There have been a number of projects and initiatives that I have been unable to initiate or progress because of the time I have spent dealing with complaints from George Dimovski, Tony Anevski and David Kotevski."

So by the time of this briefing, Mr Andraos had become rather frustrated with the position he found himself in. Nonetheless, this was simply a briefing to enable the External Investigator to begin to form in his own mind what the potential issues might be. It might be said that the fact that Mr Andraos had become quite "fed up" with the situation underscored the appropriateness of the decision to appoint an External Investigator in the first place.

Some comments that Mr Andraos had made in the briefing were hearsay. That is entirely true. But the purpose of the briefing was not to provide the External Investigator with evidence. The External Investigator would determine who to speak to and what to put to the witnesses. Following on from that briefing, the first thing the External Investigator did was to interview Mr Andraos, which he did on 10 November 2009. For there to be a finding of actual bias, there needs to be some evidence that the External Investigator has actually not approached the task with an open mind. There needs to be some evidence that the Investigator did or did not do something.

The mere fact that Mr Andraos made a number of remarks in the briefing that were unfavourable to the applicant does not automatically mean that the External Investigator failed to approach the task with an open mind.

Mr Dimovski has also raised the issue that the witness statements for Mr Vay and Mr Calligas were not disclosed to him. One of the reasons advanced for that submission by Mr Dimovski is that he submits that on a reading of section 8(1)(c) of the Public Interest Disclosure Act 1994, Mr Vay could not be seen as a Protected Person. In the context of a busy working hospital which has to make decisions regarding whistle blowers, they should be allowed to take a robust approach to who should fall under the provision or not. It is also the respondent's submission that the remarks of Mr Dimovski were in fact corrupt conduct in any case. In any event it was not Mr Andraos or Mr Towarnicki who made the decision that there was a Protected Disclosure. In terms of whether Mr Dimovski was materially disadvantaged by not knowing the identities of the witnesses, the respondent's submission is that he was not because his response in the interview and in his response to the show cause notice and in these proceedings was, "I never said these words to anyone, anywhere, at any time."

The findings of the External Investigator were wide ranging which, in the respondent's submission is not surprising given the breadth of the terms of reference. A number of the allegations were found to be unsubstantiated. It was put to Mr Towarnicki, that in practical terms the decisionmaker was the External Investigator and that the respondent simply took the External Investigator's findings and used that as the basis of the determination. Mr Towarnicki's evidence was that it was not the External Investigator's job to be the decisionmaker and that is consistent with the terms of reference which gave the Investigator the remit to make findings for Management's consideration and appropriate action. In reexamination Mr Towarnicki said he read the whole of the External Investigator's report and came to his own view as to whether, on the balance of probabilities, misconduct had occurred. Mr Towarnicki's internal briefing (Exhibit 7) was provided to the Chief Executive who is the ultimate decisionmaker. Annexed to this internal briefing is an earlier internal briefing which sets out Mr Towarnicki's conclusions regarding the allegations against Mr Dimovski. This was prepared after Mr Dimovski had provided his response to the show cause letter. On page 439 of Mr Towarnicki's Statement (Exhibit 7) there is a heading "Strengths and Weaknesses". So this matter was considered in terms of whether there was serious misconduct and at the second bullet under "Weaknesses" it says: "Mr Dimovski has been employed for a period of 22 years with no prior incidents or no prior performance management issues." In crossexamination Mr Towarnicki said he had had no regard to the length of service of Mr Dimovski. But in the context of the documentation, it is open to the Commissioner to take Mr Towarnicki's response to be that he did have regard to Mr Dimovski's length of service.

Turning to whether the decision to dismiss was harsh. In the respondent's submission, it was not harsh for two reasons. First of all, the nature of the misconduct struck at the very heart of the job Mr Dimovski was employed to do. Attorney-General's Department - v - Miller [2007] NSWIR Comm 33 is distinguishable from this case, because in Miller the appellant was found to have performed his work to a good standard. It was Mr Miller's other activities in the workplace that had caused the difficulties. Secondly, this was not a oneoff lapse of judgment which might be forgiven in the context of a long period of service with an unblemished record. This was deliberate, calculated behaviour that went on for a period of months.

Finally, turning to the question of impracticability of reinstatement. In the respondent's submission, the question of impracticability might arise in two circumstances. The first is that if there is a finding that serious misconduct in fact occurred, but that the decision was nonetheless harsh. In the respondent's submission, if that is the outcome, then reinstatement is impracticable because the nature of the misconduct has struck at the very heart of Mr Dimovski's functions and the chain of command in the Security Department will be simply unable to function, given Mr Dimovski's attempts to undermine it. The second is, if there is no finding of serious misconduct and in the respondent's submission, in such a case, it would still be disastrous for the functioning of the Security Department if Mr Dimovski were returned to his former position. In the respondent's submission, these proceedings, and the events that led up to it have polarised the staff members. Staff members have called each other liars and in the respondent's submission, the relationships are so fractured that reinstatement is entirely impracticable. Given the fact that Mr Dimovski has refused to admit to his actions and maintains that he did not do anything wrong and given the number of employees involved in this matter, reemployment would, in the respondent's submission, be impracticable.

Applicant's Submission In Reply

Mr Robinson's evidence lacks credibility. He asserted for the first time today, that he in fact complained about the serious misconduct by Mr Dimovski to Mr Andraos and he said he did so in February 2009, and on other occasions between February 2009 and November 2009. That is not mentioned anywhere in the respondent's evidence. If he had in fact raised those complaints it would have formed part of the investigation being conducted by the External Investigator. Mr Andraos was very detailed in his briefing to the External Investigator and the fact that Mr Andraos makes no mention of Mr Robinson having made complaints is indicative of the fact that no complaints were actually made, and the reason no complaints were made is because the alleged remarks were not made. The respondent has asserted that Mr Dimovski has been involved in numerous complaints. There is not any evidence to support that. Mr Dimovski conceded in crossexamination that he sent emails to Mr Skleparis about operational matters, primarily, matters that impacted upon him directly. An example of that, is the directive by Mr Dimeglio, that Mr Dimovski and his co-workers not speak their own language in the workplace. That is a matter that impacted on Mr Dimovski directly and he addressed it. Mr Dimovski did not only escalate matters that impacted on him directly. He did complain about other matters that did not impact on him directly, for example, Mr Vay's and Mr Calligas' treatment of mental health patients.

The difficulty for the respondent is that there is uncontested evidence that Mr Dimovski complained about Mr Vay's and Mr Calligas' treatment of mental health patients to Mr Dimeglio. The respondent referred to Mr Calligas' evidence that on 9 December 2008 and 11 December 2008, that Mr Dimovski called Mr Dimeglio a "faggot", that he had "bad breath" from "sucking cock". There is no mention of that in his April 2009 complaint. All that he says is, "yeah, they called Mr Dimeglio a poof", that is, Mr Dimovski called Mr Dimeglio a "poof". There is no mention of a comment about Mr Dimeglio being a "faggot" or Mr Dimeglio having "bad breath" from "sucking cock". Mr Dimovski says it is a fabricated entry.

The evidence of Mr Vay was that he made a complaint three months after he started employment, but he was not willing to make it a month earlier because he was new. That is not credible. It lacks any logical sense that Mr Vay would be uncomfortable making a complaint after being employed for two months, yet comfortable making the complaint after three months.

In respect of Mr Dimovski making derogatory comments to Mr Robinson in the Security Department's common areas at the time that Ms McCamley was also performing work, one would have expected that the remarks would be over-heard by someone else. Yet none of the witnesses in this case say or provide any evidence that they overheard Mr Dimovski saying these things about Mr Dimeglio in the common area of the Security Department.

In respect of the Investigation the applicant has dealt with the inappropriate comments made during the verbal briefing by Mr Andraos. Essentially the applicant says that the comments caused bias. The External Investigator has not been called to give evidence and an inference can be drawn that his evidence would not have assisted the respondent.

In terms of Mr Towarnicki, the respondent referred to a document which says, "Mr Towarnicki considered various factors before deciding to dismiss" (Exhibit 7). There is a fundamental difference between the way in which Mr Dimovski says what the law requires to be done and what the respondent appears to be asserting. Mr Dimovski says a range of factors ought to have been taken into consideration in determining whether the conduct actually occurred. Mr Towarnicki's evidence was that he did not take into consideration those factors in determining whether the conduct actually occurred. Mr Dimovski's length of service and unblemished record were taken into consideration in deciding whether or not to dismiss him, having already accepted that the conduct occurred. Mr Dimovski says that that does not satisfy the appropriate test as set out in Briginshaw - V - Briginshaw and Franklin - V -Webb.

There is objective evidence that the Note Book entries have been fabricated. There are two Note Books that are out of sequence and there are discrepancies in terms of when they were issued. They are the only two Note Books in which allegations are made against Mr Dimovski. In the applicant's submission, that is compelling evidence in support of Mr Dimovski's assertion that these entries have been fabricated. The respondent said that if they fabricated those entries, they must have fabricated all the entries before. That is not true. All Mr Calligas and Mr Vay had to do was copy out the Shift Log entries which are in evidence. There is a marked consistency in the way in which the Shift Log entries of Mr Calligas and Mr Vay are entered, as well as what is written in the Note Books.

The respondent also submitted a curious submission:

"Well, if you find, Commissioner, that the diary entries are fabricated, that's the end of the matter. If you find that they're not fabricated, that's the end of the matter."

But prior to that the respondent said, "well, the evidentiary burden is on the applicant to show that they have been fabricated". If the evidentiary burden is on the applicant to show that they have been fabricated then that is the end of the matter. That is effectively putting the onus on Mr Dimovski to prove his case. This is a serious misconduct case. The onus is on the respondent. The respondent has to prove that the alleged conduct occurred and that the Note Book entries are not fabricated. Based on the objective documentary evidence the respondent cannot satisfy that test.

In respect of reinstatement and reemployment the respondent has not provided any compelling argument in respect of reemployment that would persuade the Commission to refuse reemployment if reinstatement is not considered.

Consideration And Findings

I have carefully considered the transcript, all the evidence as tendered, the submissions of the parties and the cases cited. That consideration has required detailed review of all the documentation and transcripts in this matter. I have also outlined the respective submissions of Counsel and Solicitor which summarised the respective and opposing position of the parties and which have been of great assistance to the Commission.

The parties have rightly identified the requisite standard of proof to be applied as that established in Briginshaw - V - Briginshaw [1938] HCA 34; (1938) 60 CLR 336, as further explained in Neat Holdings Pty Ltd - v - Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 and as consistently applied in unfair dismissal cases before this Commission. That being the civil standard of the balance of probabilities.

The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) - V - South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus.

In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks through an unbroken line of authorities to Budlong - V - NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state:

13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw - V - Briginshaw [1938] HCA 34; (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal in such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.

,,,,,,,,,,,,,,,

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt relied upon criminal inquest in the reasonable satisfaction which in a similar issue in may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil preceding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (Emphasis added).

14. In Neat Holdings Pty Ltd - V - Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450. Mason CJ, Brennan, Deane, and Gaudron JJ explained the above passage from Briginshaw this way:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on

the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. This, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary "were so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added).

The Full Bench also went on to observe in relation to the specific decision the subject of appeal:

19 The Commission, at first instance, should be conscious of the gravity of the allegations made by both sides when reaching a conclusion. Ultimately, however, it remains incumbent upon the Commission, at first instance, to determine the issue by reference to the balance of probabilities. The question then becomes: did the Commission, in making the findings of fact at first instance, approach its task by mechanically applying a mere preponderance of probabilities, or, on the other hand, did reach a state of reasonable satisfaction, bearing in mind the seriousness of the matters alleged?......

Observations made by Bishop C. in Australian Services Union of NSW - V - Sydney Water Corporation [2008] NSWIRComm 1064 seem particularly apposite to this matter:

Whilst it is clear that this case is about onus and whether Sydney Water has established, to the Commission's satisfaction, that the men were drinking alcohol and did therefore commit serious misconduct, coming to a conclusion about whether that onus has been discharged is also inextricably bound up with issues of the credit of witnesses and the credibility of the evidence of both sides not merely whether there is sufficient evidence of the misconduct alleged. Given how diametrically opposed the accounts are of what happened on 16 October, it ultimately comes down to whether the Commission believes one side in preference to the other and any basis for that belief.

Generally in misconduct cases however, even if it is established after applying the requisite tests, that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne. Likewise the Commission must also consider whether the termination was harsh and/or unjust and/or unreasonable per s.88 of the Act. Here however, the onus moves back to an applicant per Western Suburbs District Ambulance Committee - V - Tipping (1957) AR NSW 273.

It was more than evident that there were resentments held within the Security Department and it did seem to me, based on those giving evidence that there were 2 clear camps - those supporting Mr Dimovski (Mr Kotevski, Mr Mofardin and Mr Anevski) and those supporting Management (Mr Andraos, Mr Skleparis, Ms McCamley, Mr Robinson, Mr Vay and Mr Calligas).

This had its genesis in the direction given by Mr Demigilio on 22 September 2008 to Mr Dimovski, Mr Kotevski and Mr Anevski not to speak in Macedonian at the work place. Mr Dimovski gave evidence that he was annoyed at this. Mr Kotevski gave evidence that he, Mr Dimovski and Mr Anevski submitted a complaint to the Human Rights Commission about this and Mr Anevski stated that he believed the direction to only speak in English at the workplace was directed towards Mr Dimovski, Mr Kotevski and himself for speaking Macedonian. Ms McCamley stated that Mr Dimovski, Mr Anevski and Mr Mofardin and Mr Kotevski talked together regularly in Macedonian. Mr Vay stated that Mr Dimovski, Mr Mofardin, Mr Anevski and Mr Kotevski were always together speaking in Macedonian. Mr Andraos stated that Mr Demigilio raised the matter that Mr Dimovski, Mr Kotevski and Mr Anevski had continued to speak in Macedonian while on duty despite his direction not to. He referred to their formal complaint to the Australian Human Rights Commission signed by Mr Dimovski, Mr Kotevski and Mr Anevski. I accept that Mr Dimovski, Mr Kotevski and Mr Anevski continually spoke in Macedonian together in the workplace.

The applicant submits that the Note Book entries of Mr Vay No. 103421 and Note Book entries of Mr Calligas No. 103436 were fabricated entries which were recorded at a later date for the purpose of orchestrating the dismissal of Mr Dimovski.

The particular entries which the applicant alleges were fabricated were as follows:

Mr Calligas' Note Book No. 103436 entry on 9/12/08:

"S/O Dimovski making vulgar and disrespectful comments towards operation manager Joseph Demigilio. George called Joseph a faggot, and that Joseph always had bad breath, he said he must be sucking cock. S/O Dimovski did ask if I was a fence sitter. I replied to him I'm jut here to work, I feel like he is testing to see my reaction or comments on this."

Mr Calligas' Note Book No. 103436 entry on 11/12/08:

"S/O Dimovski made comments to me about Norm the casual, that he is a poof, and not to trust him, he also stated again that if we put a lot of complaints in against joseph he wouldn't get the operation's managers job . I simply couldn't believe what i had heard from a senior security officer. I don't really need this bullshit. I can't believe i left radiology for this shit".

Mr Vay's Note Book No. 103421 entry on 12/7/09:

"While on N/S I was conducting a routine Patrol with George Dimovski. He asked me what I thought of poofters! I said that I don't really have a problem with anyone. I said I don't care ...... what the person is as long as Mutual respect is both way's.

He said that our Operations Manager is a Poof and that he should Not be in that Position. I was taken back about these comments. I did not say anything to George. I jut thought he may have had a argument with Joseph. I don't want to get involved.

Mr Vay's Note Book No. 103421 entry on 05/8/09:

"George told me that if you get close enough to Joseph he has Cock breath. I think I should speak to Ray. I really can't handle this. I have only been here a couple of months there is so much anger towards Joseph. I do not want to continually hear about this. I think they hate Joseph being Ops. Manager."

Prior to November 2009 Note Books were issued with a registration number beginning with the letter "N". Between December 2008, the time when Mr Andraos commenced employment and 18 September 2009 there is no record of any Note Books issued in the Security Note Book Register (Exhibit 10). Mr Andraos in cross-examination agreed that no Note Books had been issued. Mr Andraos further said in cross-examination that Note Books of a different batch were ordered some months before the current batch runs out and they are not in a sequential order.

Mr Vay's and Mr Calligas' Note Books contained entries which preceded and postdated the date of the entries in question. For Mr Vay and Mr Calligas to have fabricated their Note Book entries on the relevant dates they would have had to copy all the earlier and later entries as well. The applicant submitted that all Mr Vay and Mr Calligas had to do was to get a copy of the Shift Log Reports and copy them into their fabricated Note Books. There is no evidence that they have done this.

An examination of the Note Book Register (Exhibit 10) reveals that a Note Book No. N049145 was issued to Ms McCamley on 9/11/07. The next Note Book to be issued was Note Book No. N049244, issued to Mr Kotevski on 10/11/07. Although these Note Books were issued one day after another there is an increase in the numbers from N049145 to N049244. The next entry on the Note Book Register reveals a Note Book No. N048960 was issued to C Wright on 18/9/09. This Note Book represents a decrease in number from the Note Book issued to Mr Kotevski No N049244, although it was issued at a later date. The Note Book Register reveals that Note Books issued were not done so in a sequential order, that is the Note Book numbers increase and decrease in a non-sequential order.

Mr Calligas' Note Book No 103436 was issued to him on 18 August, 2008, the day of his first shift (Exhibit 15). On the 29 July, 2008 he signed, as an item designation, for such things as a Note Book, shirts, trousers, pouch handcuffs and the like (Exhibit 14). However, the 29 July, 2008 was not the date when the Note Book was issued to him.

Mr Calligas' Note Book was issued to him on 18 August 2008. It is not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103436 of Mr Calligas was issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.

Mr Vay's Note Book was issued to him on 20 June 2009. It was not recorded in the Note Book Register (Exhibit 10). The Note Book No. 103421 of Mr Vay was also issued in between Note Book No. N049244 issued on 10 November 2007 and Note Book No. N048960 issued on 18 September 2009.

There is approximately a two year gap in the Note Book Register (Exhibit 10) during which time no entries were recorded. This is not conclusive evidence that the Note Book entries were fabricated.

I find the Note Books of Mr Calligas and Mr Vay were not fabricated. The Note Book Register does not provide evidence that the Note Books are fabricated. It merely provides evidence that the Register was anything but reliable. Further, on the balance of probabilities, I find that the Note Books of Mr Calligas and Mr Vay had contained such a large number of incidents that it is highly unlikely that they are fabricated.

I do not find it necessary to consider the evidence of Mr Dimovski in relation to comments made by Mr Hugon or Mr Demigilio because I have found the Note Book entries of Mr Calligas and Mr Vay were not fabricated.

The applicant submits that because Mr Dimovski made allegations against Mr Vay and Mr Calligas in regard to their abuse of mental health patients and Mr Calligas' distribution of photocopies of inappropriate patient X-Rays, Mr Vay and Mr Calligas had in reprisal made allegations against Mr Dimovski.

At the end of 2008 Mr Dimovski said he informed Mr Demigilio about the allegations against Mr Calligas. This was after the direction from Mr Demigilio not to speak in Macedonian. Then in March 2009 Mr Dimovski said he informed Mr Andraos that he had been approached by Mr Anevski, Mr Mofardin and Mr Kotevski who raised concerns about Mr Calligas' treatment of mental health patients. Mr Dimovski also said he informed Mr Andraos of Mr Vay's treatment of mental health patients. Mr Andraos denies that Mr Dimovski ever informed him of Mr Calligas' or Mr Vay's treatment of mental health patients.

I do not accept that Mr Dimovski made these complaints to Mr Andraos. The first time that Mr Dimovski put the allegations in writing was on 28 May 2010 to the NSW Ombudsman, approximately one month after the report of the External Investigator into the allegations against Mr Dimovski. Mr Vay and Mr Calligas in cross-examination denied that they had abused mental health patients.

I find the evidence of Mr Dimovski that he complained to Mr Andraos about Mr Calligas' and Mr Vay's treatment of mental health patients untruthful. It was in April 2009 that Mr Calligas had made an allegation about Mr Dimovski making derogatory remarks about Mr Demigilio. It was from this point on that Mr Dimovski made allegations against Mr Calligas that he had abused mental health patients. In September 2009 Mr Vay made a complaint to Mr Andraos that Mr Dimovski had made derogatory remarks about Mr Demigilio to remove him from his position. I find that Mr Dimovski was a very close colleague of Mr Kotevski, Mr Mofardin and Mr Anevski. Mr Dimovski described his relationship as no more or no less friendly than any other work colleague. I prefer the evidence of Mr Vay and Ms McCamley that the four men had a close relationship. Therefore I find the evidence of Mr Kotevski, Mr Mofardin and Mr Anevski also not true.

Lastly, Mr Demiglio's direction to Mr Dimovski, Mr Kotevski and Mr Anevski not to speak in Macedonian in the workplace provides the context for the remarks that Mr Dimovski made to Mr Calligas and Mr Vay about Mr Demigilio.

Having carefully considered the relevant evidence and mindful of the requisite test to be applied, I make the following positive finding:

That Mr Dimovski acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Mr Demigilio, with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demigilio from his position in an improper (unlawful) way.

The action on the part of Mr Dimovski was clearly misconduct and I find that SESI Area Health Service have discharged the requisite onus applicable under the cases cited above to establish that misconduct on the part of Mr Dimovski did take place.

Such action by Mr Dimovski against Mr Demigilio was clearly contrary to the Code of Conduct and indeed would be contrary to acceptable standards of conduct in a work place and was of such seriousness as to warrant dismissal.

As indicated at the outset while the onus is on SESI Area Health Service to establish that misconduct took place, and I have found that they have satisfied that onus and misconduct did take place, the onus then moves back to Mr Dimovski to establish, notwithstanding that finding, his dismissal was harsh, unjust and unreasonable and sufficiently so as to warrant the intervention of the Commission pursuant to s89 of the Act.

The expression "harsh, unjust or unreasonable", was considered in Byrne. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any of all of those three.

Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether a termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds.

This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]:

64 Finally, we stress the importance of a Member of the Commission at first instance in a 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was snot harsh, unreasonable or unjust.

65 in the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms wide, under each limb of the tripartite test, the dismissal was not an "unfair dismissal".

A dismissal can be both substantively and procedurally unfair. The case usually quoted is the High Court Judgement in Byrne.

In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission.

However just because misconduct is found, it does not follow that there cannot also be such procedural unfairness so to warrant the intervention of the Commission.

The applicant's case is that the investigation conducted by the External Investigator was compromised by the verbal briefing provided by Mr Andraos. The applicant states that, on the evidence, it is clear that Mr Andraos' intention was to influence the investigation so that it was biased against Mr Dimovski. Accordingly, the External Investigator took a biased approach to interviewing witnesses and making his findings.

According to the applicant this resulted in Mr Dimovski's dismissal being both substantively and procedurally unfair.

The External Investigator refused to provide Mr Dimovski with the names of the persons (Mr Vay and Mr Calligas) on the basis that they were Protected Persons. According to the applicant, the External Investigator's failure to provide Mr Dimovski with this critical information undermines the accuracy and/or validity of the investigation.

As indicated above I find that Mr Dimovski's dismissal was not substantively unfair.

When an issue of procedural fairness is raised what must be considered is whether the defect complained about is of such substance that it could have in fact materially effected the final outcome and thus could clearly be said to have produced an unfair or questionable result.

Even if the verbal briefing conducted by Mr Andraos to the External Investigator was biased, this does not mean the investigation undertaken by the External Investigator was biased. The purpose of a briefing is not to provide evidence. The External Investigator determined who he would speak to and what he would put to each witness.

For there to be a finding of bias there needs to be evidence that the External Investigator has actually not approached his task with an open mind. The fact that Mr Andraos made remarks in his briefing which were unfavourable to Mr Dimovski does not mean necessarily that the External Investigator has failed to approach his task with an open mind.

Upon a reading of the External Investigator's report (Exhibit 7) I find he approached his task with an entirely open mind. He came to the conclusions that Mr Dimovski acted in a derogatory manner and spoke words of insult regarding Security Operations Manager, Mr Demigilio with at least a strong inference that this occurred with the intention of preventing and eventually removing Mr Demigilio from his position in an improper (unlawful) way, because of the existence of Mr Calligas' and Mr Vay's Note Books. There were also a number of allegations found to be unsubstantiated which further undermines the contention that the External Investigator was biased or prejudiced from the outset.

The applicant raised the issue that Mr Vay and Mr Calligas' witness statements were not disclosed to Mr Dimovski because they were Protected Persons. The decision that Mr Vay and Mr Calligas would be Protected Persons was made by the PPU of the Department. Mr Andraos and Mr Townarcki had no input into this decision.

Mr Calligas had been a Protected Person when earlier allegations were made of inappropriate behaviour displayed by Mr Demigilio in a separate investigation. His position as a Protected Person was compromised when a copy of this earlier report found its way to other staff members. This earlier report was provided to the External Investigator. The applicant submits that because of this there was no basis for the External Investigator's refusal to provide Mr Dimovski with Mr Calligas' and Mr Vay's witness statements. But the fact remained that Mr Calligas and Mr Vay were Protected Persons in terms of this investigation. The External Investigator received papers about the earlier investigation where it was considered that Mr Calligas had been exposed as a Protected Person. The External Investigator chose to keep Mr Calligas as a Protected Person which the External Investigator was free to do.

The findings of the External Investigator were wide ranging reflecting the breadth of the terms of reference. The External Investigator is not the decision maker consistent with the terms of reference which were given to him. He was to make findings or not to make findings for Management's consideration and action. Mr Townarcki gave evidence that he read the whole report and came to his own view as to whether, on the balance of probabilities, misconduct had occurred. In this instance the Chief Executive, Mr Clout, was the decision maker who made the ultimate decision to dismiss Mr Dimovski.

Having carefully considered the issues raised by the applicant I am satisfied that a fair and unbiased investigation took place. Mr Dimovski was well aware of the allegations against him, he had an opportunity to respond to those allegations verbally and in writing and he could make any representations to the decision maker before a final decision was made. The questions asked by the External Investigator were designed to elicit whatever relevant information an interviewee had to put forward about Mr Dimovski. Mr Dimovski knew the case he had to answer.

Therefore in summary, I do not find there was procedural unfairness in relation to the dismissal of Mr Dimovski and as such given the seriousness of the misconduct, I do not find that Mr Dimovski's dismissal was unjust or unreasonable in the circumstances.

However that still leaves me with the task of determining whether or not in all the relevant circumstances dismissal was too harsh a penalty to have been imposed.

The issue of harshness and the task required to be undertaken in assessing whether a dismissal was too harsh a penalty, notwithstanding a finding of misconduct, was considered by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 as follows:

27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the excercise of the Commission's powers in relation to unfair dismissal (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No2) (2002) 112 IR 212 at [71] ('Little') stated:

The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

28 This conclusion must also follow from the very meaning of the concept of "harshness" with s84(1). The words "harsh, unreasonable or unjust" in s84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated". Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at [467] ("Byrne") per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account.

29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of ss84(1), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order re-instatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

It is without question that Mr Dimovski had a totally unblemished 22 years of service with SESI Area Health Service.

The applicant states that Mr Dimovski is a man of 60 years of age who will have difficulty obtaining further employment. The applicant's dismissal results in a loss of self-esteem, confidence and tremendous upset on Mr Dimovski and his family. There are consequent pecuniary considerations for Mr Dimovski and there is a loss in social standing. The applicant states that there were no warnings given to Mr Dimovski in relation to his conduct and that the alleged intention "to get rid" of Mr Demigilio did not result in the removal of Mr Demigilio from his employment. Mr Dimovski should be reinstated, if not re-employed to another Hospital.

The respondent states that the nature of the misconduct struck at the heart of the position which Mr Dimovski was employed to do. Further it was not a "one off" lapse in judgement which might be forgiven in the context of a long period of service with an unblemished record. This was deliberate, calculated behaviour that went on for a period of months. The respondent also states that re-instatement is impracticable because the nature of the misconduct has struck at the heart of Mr Dimovski's function and that the chain of command in the Security Department would be unable to function given Mr Dimovski's attempts to undermine it. These proceedings and the events leading up to it have polarised the staff members and relationships are so fractured that re-instatement is not practicable. Given the fact that Mr Dimovski has refused to admit to his actions and maintains that he did not do anything wrong and given the number of employees involved in this matter re-employment would be impracticable.

Having carefully considered this issue I consider that the decision of the SESI Area Health Service to dismiss Mr Dimovski was too harsh in all the circumstances for the reason that Mr Dimovski has an unblemished record of 22 years in employment with SESI Area Health Service. He is a man of 60 years of age with little likelihood of future employment. I am mindful that Mr Dimovski did not follow the chain of command and did not carry out the functions of his position in that he spoke derogatory words against Mr Demigilio, who was Mr Dimovski's superior. He spoke those words with the intent of having Mr Demigilio removed from his position. Mr Dimovski has breached the Code of Conduct. The respondent has not provided any compelling argument as to why Mr Dimovski should not be re-employed. Therefore I consider that Mr Dimovski should be demoted from his position as a Senior Security Officer at St George Public Hospital to another hospital at a position of Security Officer.
I make the following Orders:

ORDERS

1) The South Eastern Sydney and Illawarra Area Health Service shall:

a) Pursuant to s89(2) of the Industrial Relations Act 1996 re-employ Mr Dimovski in another hospital, other than St George Public Hospital, as a Security Officer and not as a Senior Security Officer; and

b) Pursuant to s89(4) of the Industrial Relations Act 1996 take Mr Dimovski's employment not to have been broken by his dismissal.

2) This Order shall take effect within twenty one days from the date of this Decision.

P LYNCH

Acting Commissioner

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