DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brendan Osmond
v
St Vincent's Hospital Sydney Limited T/A St Vincent's Hospital
(U2015/4588)

Application for relief from unfair dismissal, no valid reason found for dismissal, dismissal upheld, reinstatement and compensation ordered

[1] In this matter Mr Brendan Osmond (the applicant) alleges that he was unfairly terminated by his employer St Vincent’s Hospital Sydney Limited (the respondent/St Vincent’s) from his position as a Security Supervisor.

[2] Mr Osmond was represented in the proceedings by Mr Edghill and Mr Fox from the Health Services Union (HSU).

[3] On behalf of St Vincent’s Ms MacKinlay, a solicitor sought leave to appear on the basis that her appearance would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Ms MacKinlay is a solicitor from Maddox Lawyers who had been seconded to St Vincent’s as the Industrial Relations Officer. Ms MacKinlay advised that St Vincent’s Director of Human Resources who does have advocacy experience was on annual leave. Mr Edghill did not oppose Ms MacKinlay’s appearance and leave was granted on the basis that Ms MacKinlay’s appearance would assist the Commission pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act).

Background

[4] Mr Osmond, the applicant was first employed by St Vincent’s as a Security Officer in March 1992 and promoted to the position of Security Supervisor in 2001. Mr Osmond stated that he met his wife at St Vincent’s and that she has been working at St Vincent’s for 33 years.

[5] The role of the Security Supervisor is to facilitate a safe environment for patients, staff and visitors, protect the respondent’s property/assets and maintain a high standard of security. The position of Security Supervisor reports to the Security Services Manager.

[6] St Vincent’s Hospital was established in 1857 by the Sisters of Charity and in 1991 was incorporated under a New South Wales Act of Parliament to become known as St Vincent’s Hospital Limited.

[7] St Vincent’s Hospital is at times required to treat patients particularly in its Caritas Mental Health Unit who are aggressive and non-compliant, pose a risk to themselves and to individuals with whom they come into contact with while receiving treatment at St Vincent’s.

[8] St Vincent’s has a Code of Conduct (the Code) in place that describes its mission and values which are said to be derived from the Catholic tradition and the teaching of Jesus. The values in the Code are described as compassion, justice, integrity, and excellence.

[9] On 2 April 2014, St Vincent’s security office received a call from the Caritas Unit regarding an aggressive and disruptive female patient. At the time, four security staff including Mr Osmond attended the unit to assist nursing staff by escorting the female patient to the ‘seclusion room’ where the patient was sedated and a search of her person conducted.

[10] Security Supervisor Mr Des Squires conducted the search of the patient’s ‘hoodie’ (jacket) pockets in the presence of a female clinician. Once the search was completed the security and nursing staff left the room.

[11] On 6 April 2014, four days after this incident, Mr Osmond sent a complaint/report via email to the Security Services Manager, Mr Ross Judd. Mr Osmond’s complaint alleged that Mr Squires had searched the female patient in a manner which was “highly inappropriate by indecently touching/searching the female patient.” At the time the email was sent, Mr Judd was on annual leave and had been for the previous two weeks. When Mr Judd returned from annual leave on 15 April 2014, he did not attend to the email sent by Mr Osmond. Mr Osmond subsequently sent another email to Mr Gerard Carr the Deputy Director Human Resources stating he had not received a response from Mr Judd with respect to his complaint and asked that the matter be looked into. As a result, his email was forwarded to Mr Judd on 13 May 2014.

[12] Mr Judd then commenced an investigation into the complaint and interviewed eight individuals including Mr Osmond. As a result of what Mr Judd considered being a complaint relating to an indecent sexual assault, the matter was referred to the King’s Cross police. The police investigation did not proceed and Mr Judd recommenced his internal investigation. Mr Judd did not find that the complaint of Mr Osmond sustained. As a result, St Vincent’s initiated an external review into Mr Osmond’s conduct in making the complaint and the external investigator made adverse findings against Mr Osmond.

[13] On 26 March 2015, Mr Osmond was dismissed by St Vincent’s. Mr Osmond was accused by St Vincent’s of three specific incidents of misconduct:

1) lodging a complaint which he knew to be false against Mr Squires;
2) lodging a false complaint with a view to harassing and/or victimising Mr Squires; and
3) being untruthful during the course of the internal investigation.

Applicant’s submissions and evidence

[14] Mr Osmond relied on his own evidence and called two witnesses; Mr Jason Lord, a Senior Security Officer with St Vincent’s and Mr Peter Mason an organiser with the HSU.

[15] Mr Osmond submitted that there was no valid reason for his dismissal. The applicant’s case is that he in good faith reported what he believed was a breach of policy (being the indecent touching of a female patient) following what he had witnessed. Further, Mr Osmond stated that he reported his version of the events with consistency throughout the course of the relevant investigations.

Evidence of Mr Osmond

[16] Mr Osmond tendered two witness statements, 1 gave evidence and was cross-examined. Mr Osmond stated that he had worked his way up at St Vincent’s from Car Park Attendant until taking on the position of Security Supervisor in 2001.

[17] Mr Osmond stated he was stood down on 20 February 2015 and on 26 March 2015 he received a letter 2 from St Vincent’s signed by the Acting Chief Executive Officer advising that his employment was terminated. The reasons for the termination were stated as follows:

1. “engaged in misconduct by lodging a complaint against Mr Squires which you knew was false;
2. knowingly lodged a false complaint with a view to harassing and/or victimising Mr Squires; and
3. Engaged in misconduct by being untruthful when responding to Mr Ross Judd during the course of the interview in the internal investigation.”

[18] The letter went on to state that St Vincent’s had considered information obtained through the investigation process together with Mr Osmond’s responses, and had determined that his behaviour constituted a breach of the values of St Vincent’s Code of Conduct. While the termination was effective immediately, Mr Osmond was paid his notice period of five weeks.

[19] Mr Osmond recounted how early in the morning of Wednesday, 2 April 2014 he was working in the Security Office near the main entrance of St Vincent’s with Security Officers Jason Lord, Des Squires and an agency security officer Mr Khalid Ismali when a phone call was received from medical staff to attend the Caritas Mental Health Unit to provide security assistance. Assistance was needed with a female patient who was smashing mobile phones.

[20] All four security officers attended and the female patient was escorted into the seclusion room so that inter-muscular medication could be administered by the medical staff to sedate her. The seclusion room is a specific room that is used for restraining and medicating patients on clinical direction who are exhibiting dangerous or antisocial behaviour. On entering the room the patient was immediately placed face down on a mattress by Security Officers Mr Lord and Mr Squires.

[21] After the medication was administered one of the medical staff asked whether the patient had been searched and Mr Squires immediately conducted a search of the patient. Mr Osmond stated that he saw Mr Squires touch the patient’s chest with the palm of his hand and in response to being touched, the patient made the comment “touchy, touchy”. Mr Osmond stated that the patient’s comments were a direct response to Mr Squires touching her chest.

[22] Following the search, Mr Osmond and Mr Lord returned to the security office and discussed what had happened. Mr Osmond stated that he said to Mr Lord “can you believe what Des did?” Mr Lord responded that he could not believe what had occurred.

[23] When Mr Squires returned to the security office Mr Osmond said to Mr Squires “What were you thinking of, why did you do it?” Mr Squires did not provide any explanation other than the patient needed to be searched. Mr Lord was present during this conversation.

[24] Subsequently on Sunday, 6 April 2014 Mr Osmond reported the incident in an email 3 to his immediate supervisor, Mr Judd wherein he stated that Mr Squires’ conduct of indecently touching/searching the female patient was highly inappropriate and concluded by stating that the searching of patients and their belongings should be performed with the greatest respect for the patient’s dignity and privacy. Mr Osmond stated that he used the word ‘indecent’ “because the female patient’s private parts were touched.”4 Mr Osmond stated that he reported the matter as he was in charge of the shift and when he raised it with Mr Squires he did not appear to take the matter seriously and that he believed the search should have been conducted by a female nurse.

[25] In respect of the reason why it took him four days to report the incident, Mr Osmond stated that as the incident occurred at 2:30 am on a Wednesday morning, after his shift he slept and was off work the following day (Thursday). On Friday of that week, he was required to attend court in his capacity as a Security Supervisor at St Vincent’s. Mr Osmond returned to work on Saturday, 5 April 2014 and on Sunday, 6 April 2014, he emailed the complaint to Mr Judd. Mr Osmond was aware that Mr Judd did not work on weekends even though he did not realise that Mr Judd was on leave and he did not receive an automatic ‘out of office’ reply when he sent the email.

[26] On 9 May 2014, Mr Osmond emailed Mr Gerard Carr from St Vincent’s Human Resources department to follow-up on the complaint as he had not received any response from Mr Judd. On 19 May 2014, he received a letter from Mr Judd inviting him to attend a meeting on 2 June 2014, in relation to the complaint, which he attended. Present at the meeting was Michelle Wilson the Executive Director of St Vincent’s and Louisa Lunn a union representative and Mr Osmond’s support person. During the meeting, he was advised the matter was to be referred to the police and he was later called by a Detective Senior Constable Peter Butler who asked him to attend the King’s Cross police station. Mr Osmond’s evidence was that Detective Butler advised him that he would not get the outcome he expected if the matter was dealt with by the police and it would be better if the matter was investigated internally.

[27] Mr Osmond said that he took Detective Butler’s comments to mean there was little point in making a statement through the police as the matter was unlikely to go anywhere and on that basis he declined to make a statement. Mr Osmond stated that he at no stage made a complaint to the police and therefore was not able to withdraw any police complaint about Mr Squires’ conduct. Mr Osmond stated that while he believed the matter was serious he did not think that Mr Squires deserved to lose his security licence over the incident 5 which could arise form a police investigation.

[28] On 21 October 2014, Mr Osmond received correspondence from St Vincent’s Chief Executive Officer stating that the New South Wales Police Force had informed St Vincent’s that he had decided to withdraw his complaint. The letter further stated that as a result, St Vincent’s had recommenced its internal investigation and had concluded on 14 October 2014 that; Mr Osmond’s complaint was unsubstantiated, he had breached the Code of Conduct and an independent investigator would be appointed to investigate Mr Osmond’s conduct concerning four allegations:

● that Mr Osmond had engaged in misconduct by lodging a complaint against Mr Squires that he knew to be false;
● the false complaint was lodged with a view to bullying, harassing and/or victimising Mr Squires;
● he had been untruthful when responding to Mr Judd in his investigation during an interview on 2 June 2014; and
● should it not be proven that the complaint was false, that he had failed to bring a complaint of serious misconduct immediately to the attention of his manager.

[29] On 23 December 2014, Mr Osmond responded to these allegations during an interview with the external investigator.

[30] Mr Osmond concluded his evidence by stating that he denied any suggestion he had lodged a false complaint against Mr Squires or that he had in any way bullied, harassed or victimised Mr Squires by making the complaint. Mr Osmond stated that he had never had any personal problems or issues with Mr Squires and had worked with him for 23 years. Mr Osmond denied that he was untruthful when responding to Mr Judd and that he answered all questions put to him to the best of his ability.

[31] Mr Osmond stated that he had never at any stage used the term ‘indecent assault’ during the investigation process. He used the word ‘indecent’ on the basis that the patient’s breast had been touched. Following the making of the complaint against Mr Squires he continued to work with Mr Squires for approximately 12 months until his dismissal.

[32] Since Mr Osmond’s dismissal his evidence was that he had not obtained full-time employment but he had obtained some casual cleaning work in a friend’s business. Mr Osmond did not provide any evidence regarding his attempts to seek alternate employment. Mr Osmond’s evidence was that while he had looked for work he had not applied for any positions. 6

Evidence of Mr Lord

[33] Mr Jason Lord was employed by St Vincent’s in July 2001 as a Security Officer and in 2005 became a Senior Security Officer. Mr Lord provided a witness statement 7, gave evidence and was cross-examined. Mr Lord stated he had not read anybody else’s statement8. Mr Lord described the events concerning the physical search of a patient at St Vincent’s in the early hours of Wednesday, 2 April 2014. He described the nursing staff as having told the security employees including himself that the patient had been throwing things around and disrupting the unit by screaming and yelling and security was required to escort the patient to the seclusion room where she could be sedated. As the patient refused to walk to the seclusion room approximately ten metres way, she was physically escorted by security staff. Following the administration of an intra-muscular injection, the patient was secured until all nurses left the room.

[34] Following this, Nurse Noel Tointon stated that the patient should be searched, upon which Mr Squires immediately commenced a pat down search of the patient. Mr Lord stated that as Mr Squires moved his hand across the patient’s breast, the patient immediately said “touchy touchy”. Mr Lord exchanged a glance with Mr Osmond indicating their disapproval of what had happened. Mr Lord did not raise any objection at the time as he did not believe it was appropriate to do so in front of the patient. In Mr Lord’s statement to the external investigator Mr Lord stated:

“…

Now in sliding his hand down across her chest obviously he’s touched her breasts.”

Well his hand didn’t just brush the clothing. There was some pressure there. …  9”

[35] Immediately after the incident Mr Osmond said to Mr Lord while waiting for the lift:

“Did you see what Des did?”

to which he replied:

“Of course I did I was an arm’s length away” 10.

[36] Upon returning to the security office a short time later, Mr Osmond asked Mr Squires “why did you do a pat search on a female patient?, we don’t do that” Mr Squires replied by shrugging his shoulders and said words to the effect that it had to be done. Mr Squires’ response indicated to Mr Lord that he did not take the matter seriously. Mr Lord stated that he said to Mr Osmond that if Mr Squires was not going to take the matter seriously he needed to raise it with Mr Judd. He was told sometime later by Mr Osmond that he had made a report to Mr Judd.

[37] Mr Lord in his evidence stated that he supported the complaint being made and had no reservations about what was reported.

[38] Mr Lord had been interviewed on three separate occasions over the incident commencing with a King’s Cross police detective where he told the detective what he had witnessed and made a statement. On the second occasion he told Mr Judd in the presence of Michelle Wilson Executive Director Clinical and General Manager Support Services what had occurred and on the third occasion he told an external investigator what he had witnessed.

[39] Mr Lord acknowledged that in his meeting with Mr Judd and Ms Wilson he was advised that one of the Security Officers he had identified as having attended the incident was not actually working on that shift, which he accepted.

Submissions and evidence of the Respondent

[40] On behalf of St Vincent’s, evidence was provided by the following persons:

● Mr Ross Judd - Security Services Manager
● Mr Noel Tointon - Registered Nurse
● Ms Stephanie Dwyer - Registered Nurse
● Mr Des Squires - Security Supervisor
● Ms Adurty Rao - Human Resources Manager
● Ms Michelle Wilson - Executive Director Clinical and General Manager Support Services

[41] St Vincent’s position was that the termination of Mr Osmond was not harsh, unjust or unreasonable and was based on Mr Osmond engaging in misconduct. That misconduct was stated to be:

● lodging a complaint against Mr Squires which he knew was false;
● lodging a false complaint with a view to harassing and/or victimising Mr Squires; and
● being untruthful during the course of the internal investigation when responding to Mr Judd.

[42] St Vincent’s outlined Mr Osmond’s role as a Security Supervisor and confirmed that the position reported to Mr Judd. The role of the Security Supervisor is to support the operational and administrative management of the security department.

[43] St Vincent’s placed great emphasis on its Code of Conduct which describes its mission and values of compassion, justice, integrity and excellence which it said helps understand how we should act, treat one another and behave within the organisation. 11

[44] Part of the Code includes what was described as containing a ‘Whistleblower Protection’ provision as follows:

“While we are encouraged to report and express our concerns, it is crucial that this is done in a fair, honest and respectful manner. If you make a report in good faith, you will not be disadvantaged in any way.”

[45] In respect to Mr Osmond’s complaint against Mr Squires it was said not to have been made in good faith and therefore constituted a breach of the values embodied in the Code.

[46] The first issue St Vincent’s had with Mr Osmond’s complaint was that considering the seriousness of the allegation made, Mr Osmond did not take any action until four days after the incident. It was put that the applicant chose not to escalate the issue at the time of the incident to either the nurses directly responsible for the patient or the After Hours Nurse Manager.

[47] Following the complaint and Mr Osmond’s further enquiry on 9 May 2014 as to what was happening with the complaint, Mr Judd commenced an investigation.

[48] On 2 June 2014, Mr Osmond met with Mr Judd and Michelle Wilson where he was asked to clarify whether his complaint related to a procedural breach or whether he was alleging that Mr Squires had actually indecently assaulted the patient. Mr Osmond maintained that both had occurred.

[49] Based on the assertions and the serious nature of the allegations made by Mr Osmond, St Vincent’s suspended its internal investigation process and referred the matter to the New South Wales police under the NSW Health Policy Directive 12. The King Cross Police Command allocated a Detective Senior Constable Peter Butler to investigate the matter.

[50] On 9 July 2014, Mr Osmond gave a signed statement 13 to Detective Butler which stated in part:

“I made a written report in relation to the incident and emailed it to Ross Judd, as this is normal procedure when an incident occurs, I made the report with the intention to the matter to be dealt with internally (sic). I did not think that police would be involved and don’t feel that it is a police matter, nor does should (sic) it require them to investigate.

…

I am not willing to provide any further information in relation to the incident between Des SQUIRES and patient xxx I feel strongly that it is a matter to be dealt with by hospital security manager Ross JUDD, as the complaint is based around improper security procedure.”

[51] On 23 July 2014, St Vincent’s received an email from Detective Butler which stated that they had no complaint to investigate due to Mr Osmond withdrawing his complaint and in respect to the patient, she was a missing person and should she wish to make a statement at a later date the matter will be re-investigated.

[52] On the basis of Mr Osmond’s statement to the New South Wales police, St Vincent’s was of the view that Mr Osmond had resiled from his position that the conduct of Mr Squires was ‘indecent’ and constituted ‘sexual misconduct’ and was now only alleging a breach in policy, thereby distancing himself from his initial complaint.

[53] The internal investigation was recommenced by Mr Judd and Mr Osmond continued to maintain his previous allegations. Mr Judd completed the internal investigation and issued a report on 9 October 2014. On 20 October 2014, Mr Judd issued Mr Osmond with a letter 14 advising of his findings. Mr Judd’s findings included that the majority of witnesses suggested that nothing improper or inappropriate had occurred. This was supported by the failure by either the patient or any of the other witnesses to make a contemporaneous complaint.

[54] St Vincent’s submitted that due in part to the conflicting responses of Mr Osmond to the in-house investigation and to the New South Wales police as well as inconsistency with his evidence compared to other witnesses; it had grave concerns regarding the authenticity and integrity of Mr Osmond’s complaint. As a result they determined that the matter should be investigated externally. An organisation known as Pinnacle Integrity (Pinnacle) were engaged to conduct an external investigation. Pinnacle was requested to examine four issues relating to the conduct of Mr Osmond:

1) that Mr Osmond engaged in misconduct by lodging a complaint against Mr Squires that he knew was false;
2) that Mr Osmond knowingly lodged a false complaint with a view to bullying, harassing and/or victimising Mr Squires;
3) that Mr Osmond engaged in misconduct by being untruthful when responding to Mr Judd in his investigation of his complaint during an interview on 2 June 2014, in which he asserted that:

i. Mr Squires’ hand and arm touched the chest of the patient;
ii. the patient made a comment “touchy, touchy”, which was audible to both Mr Osmond and Jason Lord;
iii. Mr Squires turned the patient’s body over and inappropriately performed a search on her; and
iv. Mr Squires intended to indecently assault the patient.

4) if allegation (1) is not substantiated, that Mr Osmond engaged in misconduct and/or unsatisfactory performance by virtue of his failure to immediately bring the complaint of serious misconduct to the attention of his Manager.

[55] The external investigation proceeded and a number of persons were interviewed including Mr Osmond. A report was issued on 11 February 2015 by Pinnacle and concluded that Mr Osmond had engaged in misconduct by lodging a complaint against Mr Squires which was false, and that he did so on the basis that he wished to bully/harass or victimise Mr Squires.

[56] St Vincent’s submitted that as a result of the findings of the external investigation it had lost confidence in Mr Osmond and determined that his behaviour and conduct constituted a breach of the values embodied in their Code of Conduct.

[57] It was acknowledged by St Vincent’s that the complaint of Mr Osmond was also confirmed by Mr Lord who suffered no employment sanction. St Vincent’s state that Mr Lord never indicated that the behaviour of Mr Squires amounted to indecent assault or sexual misconduct whereas Mr Osmond did. Mr Lord placed the allegation no higher than a breach of policy and procedure, and on this basis Mr Lord’s behaviour can be distinguished from Mr Osmond’s conduct.

Evidence of Mr Ross Judd

[58] Mr Judd is St Vincent’s Security Services Manager and reports to the General Manager Support Services, Michelle Wilson. Mr Judd provided a witness statement 15 and gave evidence. Mr Judd stated that while he was on annual leave when Mr Osmond sent him an email on 6 April 2014 regarding an incident involving Mr Squires, he believed it should have been readily apparent to staff that he was away on leave as his office door was shut. On his return from leave he did not recall seeing any urgent or significant emails from Mr Osmond.

[59] It wasn’t until 13 May 2014 that Mr Osmond’s complaint was drawn to his attention by the Deputy Director of Human Resources and he looked back over his emails and found Mr Osmond’s email. Mr Judd said he was concerned about the complaint using words such as inappropriate and indecent touching, he noted there was nothing in the hospital records which would cause any concern.

[60] Mr Judd obtained the CCTV footage of the camera in the corridor where the incident occurred and reviewed the footage which showed the security officers and nursing staff escorting the patient to the seclusion room. Mr Judd interviewed Nurse Tointon and Nurse Dwyer on the 15^th and 23^rd of May 2014 respectively. Both nurses advised that they did not observe any inappropriate behaviour by Mr Squires.

[61] The patient at the centre of the allegations who was alleged to have been indecently touched by Mr Squires was not interviewed on the basis that it may result in mental harm or distress to the patient. 16

[62] On 2 June 2014, Mr Judd met with Mr Osmond in the presence of other St Vincent’s staff and Mr Osmond’s support person. In Mr Judd’s opinion Mr Osmond was alleging an ‘indecent assault’ had been perpetrated by Mr Squires. Mr Judd concluded that due to the serious nature of the allegation, it was potentially a criminal matter which may need to go to the police. Mr Judd stated that Mr Schembri the Chief Executive Officer of St Vincent’s asked him to contact King’s Cross police 17 on 3 June 2014 which he did the following day being 4 June 2014.

[63] On 5 June 2014, Mr Judd met with Mr Squires to advise him of the complaint and that the matter had been referred to the New South Wales police upon which Mr Squires became distressed and upset. On 6 June 2014, Mr Judd advised Mr Osmond that the matter had been referred to the New South Wales police. While the police were investigating the complaint the internal investigation was put on hold.

[64] On 9 July 2014, Mr Judd spoke with Detective Senior Constable Butler who advised that the police investigation was ceasing as Mr Osmond had withdrawn his allegation. On the basis that the police investigation had ceased, the internal investigation recommenced.

[65] On 7 August 2014, Mr Lord in the presence of Michelle Wilson and himself was interviewed and in response to whether Mr Squires had indecently touched the patient replied that it would depend on the legal definition of ‘indecent’. Mr Lord stated that Mr Squires was not required to do what he did as security officers don’t pat down 18 males or females and Mr Squires is well aware of this. He did not state explicitly that the incident was an indecent assault.

[66] Mr Judd then interviewed Mr Squires on 18 August 2014 in the presence of Michelle Wilson. Mr Squires stated that he did not know about touching the patient’s chest but that he did search her pockets. Mr Squires said he did not recall the patient making the comment ‘touchy, touchy’ but thought she said “did you have a good feel?” Mr Squires denied indecently touching the female patient. Mr Squires recalled that Mr Osmond had approached him regarding the handling of the patient and recalled Mr Osmond stating to him “we don’t search females”, “you touched her inappropriately” and that he just shrugged his shoulders and walked away as he did not want to get into an argument with Mr Osmond.

[67] On 9 October 2014, Mr Judd completed his report and concluded that there was nothing improper or inappropriate in the search of the patient by Mr Squires having regard to the evidence given by a majority of the witnesses. Mr Judd stated he was advised around 22 October 2014 by Michelle Wilson and Gerry Carr, Human Resources Operations Manager that there would be an external investigation into Mr Osmond’s conduct.

[68] Under cross examination Mr Judd was directed to St Vincent’s Patient Search Policy which states that gender specific clinicians should lead all frisk and/or ordinary safety searches undertaken by security officers and agreed that Nurse Dwyer should have led the search unless there was a risk to her. 19 Mr Judd also accepted that the patient was not provided with an opportunity to remove all items from her person in contravention of the search policy.20

[69] On 26 March 2015, Mr Judd was advised by Michelle Wilson that Mr Osmond was terminated.

Evidence of Mr Noel Tointon

[70] Mr Tointon provided a witness statement and gave evidence. 21 He is employed at St Vincent’s as a registered nurse and was in attendance when the incident of 2 April 2014 occurred. Mr Tointon stated that he asked for the search of the female patient to be conducted but was out of the room and may not have actually watched it take place,22 or that given a female patient was the subject of the search, he may have looked away.23 In charge of the shift was Nurse Dwyer.

[71] Nurse Tointon said he would have recalled if there was something inappropriate or contentious during the restraining of the patient as it was a fairly routine exercise. Mr Tointon stated that he spoke with the external investigator Belinda Nolan over the telephone but did not attend an interview with the investigator.

Evidence of Ms Stephanie Dwyer

[72] Ms Dwyer was employed as a registered nurse and attended the incident of 2 April 2014. Nurse Dwyer provided a witness statement 24 and stated she did not recall anything inappropriate about the search of the patient. Ms Dwyer was the Nursing Director at the time of the incident.25 Ms Dwyer’s evidence was to the effect, had she seen anything untoward she would have reported it to the After Hours Nurse Manager. Nurse Dwyer was not involved in the searching of the patient,26 but recalled the search and was standing up at the time, inside the room.27 Ms Dwyer thought that the patient was wearing pyjama bottoms at the time of the search.28

[73] Ms Dwyer acknowledged in cross examination that it was possible that the incident complained of by Mr Osmond occurred but she did not see it. 29 Ms Dwyer stated she had been interviewed by the external investigator and stated that it was herself who gave the direction for the patient to be searched;30 however her evidence in the witness box was that Mr Tointon gave the direction.31 Ms Dwyer accepted that she may have been confused on this point.32 Ms Dwyer was taken to the evidence she provided the external investigator33 where she had said that she did not know who conducted the search or how many people took part, but was unable to explain in her evidence why she made this comment.34

[74] Ms Dwyer was asked by the Commission about Mr Squires’ witness statement 35 where he stated that the patient made the comment “did you have a good feel” and that he then looked at Ms Dwyer, who like himself looked dumbfounded. Ms Dwyer maintained that the patient said nothing and that Mr Squires did not look over at her.36 Ms Dwyer also refuted Mr Squires’ statement that after the search Ms Dwyer was kneeling on the ground.37

[75] Ms Dwyer stated in her evidence that she did not take part in the patient search, however accepted the St Vincent’s practice is that a female clinician searches a female patient when it is deemed safe to do so. 38 Ms Dwyer accepted in cross examination that her evidence was inconsistent in a number of respects with others and what she told the external investigator.39

Evidence of Mr Des Squires

[76] Mr Squires provided a witness statement 40 and stated that he had read the statements of Mr Osmond and Mr Lord. Mr Squires stated he commenced with St Vincent’s in 1991 as a Security Officer and was promoted to Security Supervisor in February 2003.

[77] In respect of the 2 April 2014 incident, Mr Squires recalled the patient being aggressive and abusive towards nursing staff and needing to be taken to the seclusion room. The patient was restrained face down on a mattress with Nurse Dwyer beside him and Nurse Tointon near the door. Once the patient was administered with the intra-muscular injection he searched the pockets of the ‘hoodie’ the patient was wearing but he did not touch the patient’s chest or pat her down, although at the time the patient was struggling a bit 41.

[78] Mr Squires stated that Nurse Dwyer searched the pockets of the patient’s jeans. 42 It is noted that Ms Dwyer’s evidence was that she took no part in the search and that she thought the patient was wearing pyjama bottoms, not jeans. Mr Squires said the search took possibly 5 to 10 seconds.

[79] After he completed the search he was standing beside Mr Lord and Nurse Dwyer was kneeling on the ground beside the patient 43 and that the patient said words to the effect ‘did you have a good feel’. He was dumbfounded and looked over at Nurse Dwyer who also looked dumbfounded.

[80] Once the search was completed he returned to the security office and recalled Mr Osmond stating “you shouldn’t have searched the female patient” to which he responded by shrugging his shoulders and saying “well it needed to be done”. He was in the middle of writing a report of the incident and did not want to get into a discussion with Mr Osmond.

[81] Mr Squires was made aware of Mr Osmond’s complaint when he received an email from the Security Manager Mr Judd on 6 June 2014. Mr Judd told him that as the allegations involved indecently touching a female patient the matter would be referred to the police.

[82] A Detective Butler called and he had a brief conversation over the phone and denied any wrongdoing. On 16 July 2014, Mr Judd advised him that Mr Osmond had withdrawn the allegations and the police were not investigating the matter any further. Mr Squires said he did not make any statement to the police.

[83] Mr Squires agreed in cross examination that it was possible that he did touch the patient’s chest without realising and that is what Mr Osmond and Mr Lord witnessed. 44 Mr Squires also accepted that he had not followed the Patient Search Policy to the letter ⁴⁵ and that it would be fair enough for another security officer to report this fact to management46. Mr Squires accepted that it was reasonable to assume from the patient’s comments “did you have a good feel” that she was accusing Mr Squires of touching her inappropriately.47 He also acknowledged that he had failed to include the patient’s comments,48 in his statement of the incident to Mr Judd dated 22 July 2014, which he must have forgotten at the time.49

[84] Mr Squires stated that after the complaint was made, he and Mr Osmond worked opposite shifts and only interacted at the handover of shifts which he found uncomfortable. Mr Squires did recall an incident on 8 February 2015 where he and Mr Osmond were involved in working together where a patient needed to be restrained. The patient had spat into the face of Mr Osmond prior to being restrained. 50 Mr Squires said on this occasion assisting Mr Osmond was something that he did automatically as part of his job however he would not trust Mr Osmond to do the same for him. However in cross examination he agreed that he had no reason to distrust Mr Osmond51 nor did he believe Mr Osmond’s complaint was vexatiously made.52 Mr Squires accepted in cross examination that there was no evidence that Mr Osmond and himself could not work together again.53

[85] On 8 December 2014 he was interviewed by the external investigator but was not advised of the outcome of the investigation.

Evidence of Adurty Rao

[86] Ms Rao commenced employment with St Vincent’s as the Human Resource Manager on 10 February 2014. Ms Rao provided a witness statement 54 and gave evidence. Ms Rao advised that on 11 February 2015, Pinnacle Integrity provided the external investigation report and findings into the allegations made by Mr Osmond. They concluded that Mr Osmond had engaged in misconduct by lodging a complaint against Mr Squires knowing it was false and that he did so with a view to harass and/or victimise Mr Squires. Further, he was untruthful when responding to Mr Judd during the course of the internal investigation.

[87] As a result of the external investigation findings, Ms Rao was required to hand deliver a ‘Show Cause Letter’ to Mr Osmond which had been authorised by the Chief Executive Officer Mr Schembri. Ms Rao was unsure who had recommended this course of action. 55 On 20 February 2015 in the presence of Michelle Wilson, she hand delivered the letter to Mr Osmond. Mr Osmond was invited to attend a meeting on 25 February 2015 to provide reasons as to why St Vincent’s should not proceed to terminate his employment.

[88] On 25 February 2015, Mr Osmond attended the ‘show cause’ meeting together with his support person Mr Fox from the HSU, present also was Ms Wilson and Ms Rao.

[89] During the meeting, Mr Osmond and Mr Fox both gave reasons as to why Mr Osmond should not be terminated. Mr Osmond stated that he clearly felt that what he witnessed made him and the patient uncomfortable and a reasonable person would describe what he witnessed as indecent.

[90] At no stage had he stated that a crime had occurred or stated that Mr Squires had committed an indecent assault. Further, he did not exaggerate the significance of what he witnessed. The fact that the allegations were found to be unsubstantiated should not result in the conclusion that his employment should be terminated.

[91] Mr Osmond went on to state that he had in excess of 20 years’ service in a very difficult job where he was often verbally and physically assaulted and the subject of threats. Last year he was traumatised after a patient slit their throat in front of him. He had 1,000 plus sick leave hours accrued.  56

[92] Ms Rao stated to Mr Osmond that the information provided would be taken on board and was presented to St Vincent’s executive to make a decision. Following the meeting, a meeting was held between Ms Rao and Ms Jackie Clark, Director Human Resources for the purposes of presenting to Ms Clark the information obtained from Mr Osmond during the show cause meeting and to discuss the next steps.

[93] Subsequently Ms Clark made a recommendation to the Chief Executive Officer Mr Schembri that Mr Osmond’s employment be terminated. On 25 March 2015, a letter was emailed to Mr Osmond requiring his attendance at a meeting the following day so he could be advised of the outcome of the show cause meeting. At this meeting held on 26 March 2015, Mr Osmond was handed a letter by Mr Carr which advised him that his employment with St Vincent’s was terminated.

[94] Ms Rao stated she had no role in the decision making process concerning Mr Osmond’s termination. 57

Evidence of Ms Michelle Wilson

[95] Michelle Wilson is St Vincent’s Executive Director Clinic and General Manager Support Services. Ms Wilson provided a witness statement 58 and gave evidence in this matter. In Ms Wilson’s dual roles she reports to the Board of Directors of St Vincent’s Clinic and as the General Manager Support Services reports to the Chief Executive Officer of St Vincent’s Private Hospital.

[96] As the General Manager Support Services Ms Wilson is responsible for security on St Vincent’s Darlinghurst campus. Mr Judd the Security Manager for the St Vincent Darlinghurst campus reports to Ms Wilson.

[97] Ms Wilson’s evidence was that she first became aware of Mr Osmond’s complaint when she returned from leave in May 2014. On 2 June 2014 in conjunction with Mr Judd she met Mr Osmond as part of the investigation into his complaint. She states that Mr Osmond did not answer why it took some time for him to report the incident. Ms Wilson stated that she and Mr Judd sought clarification as to whether Mr Osmond’s complaint was alleging a procedural breach or an indecent assault; Mr Osmond stated it was both. Mr Osmond advised Ms Wilson that Mr Squires deliberately indecently touched the patient. As a result of the nature of the complaint the matter was referred to the New South Wales police. On 10 July 2014, Ms Wilson received an email from Mr Judd to advise that the police investigation had ceased on the basis that Mr Osmond had withdrawn his complaint.

[98] On this basis that the internal investigation recommenced, on 7 August 2014 in conjunction with Mr Judd, she attended an interview with Mr Lord. Ms Wilson stated that Mr Lord had incorrectly recalled that another security officer was in attendance when he was not rostered on that shift. Mr Lord did not explicitly make allegations of indecent assault against Mr Squires, nor provide a written complaint.

[99] Ms Wilson also attended the internal investigation interview with Mr Osmond and sought clarification and asked questions where necessary. She stated she was not in a position to opine whether Mr Osmond had given an ‘honest’ account of the incident in his complaint. 59

[100] On 18 August 2014 together with Mr Judd, Ms Wilson interviewed Mr Squires and recalled that he was visibly upset and concerned about the complaint. Mr Squires denied any wrongdoing.

[101] Following Mr Judd completing his report and discussions with St Vincent’s management, doubts regarding the veracity of Mr Osmond’s allegations were raised. An external investigation into Mr Osmond’s conduct was authorised by the Chief Executive Officer. On 27 October 2014, Mr Osmond was advised that an external investigation into his conduct was to be undertaken. The external investigation was undertaken but Ms Wilson was not interviewed as part of the investigation. Ms Wilson was made aware of the findings of the external investigation and on 13 February 2015, a meeting was held between Ms Jackie Clark Director Human Resources, Ms Maciascek St Vincent’s Legal Counsel and herself regarding the outcome of the external investigation. Ms Clark then briefed the Chief Executive Officer.

[102] On 20 February 2015, Ms Rao the Human Resources Manager and herself met with Mr Osmond to provide him with a show cause letter. It was handed to Mr Osmond after it was read out. On 25 February 2015 a show cause meeting was held with Mr Osmond which he attended together with Ms Rao and Mr Osmond’s support person Mr Fox.

[103] Following the show cause meeting Ms Wilson stated she had no further involvement in the process leading to Mr Osmond’s termination. She did not recommend or approve the decision to terminate his employment. 60

Consideration

[104] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Fair Work Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows:

“S.385. A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[105] The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:

“S.396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[106] The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Osmond is not a person protected from unfair dismissal. St Vincent’s is not an employer covered by the Small Business Code.

[107] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

“Section 387 Criteria for considering harshness

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[109] The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 61, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, Northrop J comments remain apposite:

“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”

[110] The conclusion to be drawn from the above decision is that a “valid reason”, means the reason for the dismissal must be sound, defensible or well founded and should not be “capricious, fanciful, spiteful or prejudiced.” This approach has been and continues to be adopted by the Commission.

[111] Despite this matter occupying three hearing days the facts involved are fairly brief and straightforward. Having considered all the evidence provided by both parties it appears that the following circumstances occurred resulting in the termination of Mr Osmond’s employment.

[112] St Vincent’s operates the Caritas In – Patient Unit which provides care for patients requiring assessment/treatment in an inpatient setting to treat patients with mental health related conditions. In the early morning of 2 April 2014 at approximately 2:30 am, a patient who was occupying a bed in the Caritas Unit who had been scheduled under the Mental Health Act 2007 (NSW) had become aggressive. Registered nurse Stephanie Dwyer who was in charge of the shift at the time called security. Nurse Dwyer had decided that the patient should be secluded and medication administered to calm the patient. The patient was taken to a seclusion room escorted by four security officers Mr Osmond, Mr Lord and Mr Squires who were employees of St Vincent’s together with an agency security officer. Once in the seclusion room Nurse Dwyer administered the necessary medication and a search was directed to be performed of the patient to ensure the patient was not carrying any dangerous objects. Security Officer Squires performed the search possibly in conjunction with Nurse Dwyer; the search took between five and 10 seconds. The patient uttered the words towards Mr Squires of either “touchy, touchy” or “did you have a good feel” in response to being searched by Mr Squires.

[113] Both Mr Osmond and Mr Lord who witnessed Mr Squires performing the search believed that Mr Squires had touched the breast of the patient without her consent which resulted in the verbal response from the patient.

[114] At the conclusion of the search both Mr Osmond and Mr Lord confronted Mr Squires about what they believe was his inappropriate touching of the patient; however Mr Squires did not engage in a discussion over the incident. Mr Osmond, the more senior of the security officers as the Security Supervisor consequently emailed the Security Manager Mr Judd complaining of the conduct of Mr Squires.

[115] Mr Osmond, on not having received feedback about his complaint later emailed Mr Carr from St Vincent’s Human Resources department enquiring as to what had happened with his complaint. Consequently Mr Judd interviewed Mr Osmond and ascertained that Mr Osmond was maintaining that Mr Squires had indecently touched a female patient, and on this basis the matter needed to be referred to the New South Wales police which it was.

[116] Mr Osmond was interviewed by Detective Senior Constable Butler from King’s Cross police and advised Detective Butler that he did not wish to provide a statement. Detective Butler then advised Mr Judd that the police investigation would not continue unless some other evidence became available upon which Mr Judd recommenced his internal investigation regarding the complaint. Mr Judd finally concluded that most of the allegations made by Mr Osmond could not be sustained.

[117] As a result of Mr Judd’s Report, and the “withdrawal” of the police complaint, St Vincent’s determined that there were issues regarding the veracity of the complaint made by Mr Osmond and determined that an independent investigator should examine whether Mr Osmond had engaged in misconduct by lodging a false report and had harassed/victimised Mr Squires by making the complaint. If these allegations were not sustained to then consider whether Mr Osmond had engaged in misconduct by not immediately filing his complaint.

[118] Pinnacle Integrity were engaged by St Vincent’s to conduct the external investigation into Mr Osmond’s conduct and found that Mr Osmond had misconducted himself in filing a false complaint. As a result of the independent investigation findings Mr Osmond was terminated from his employment. St Vincent’s allege that Mr Osmond misconducted himself by lodging a complaint against Mr Squires which he knew was false and with a view to harass and/or victimise Mr Squires and being untruthful during the course of the internal investigation.

[119] St Vincent’s arrived at their conclusion having had regard to the reports of Mr Judd and Pinnacle Integrity. Both reports were criticised by Mr Osmond as inaccurate and failing to provide justification for the conclusions arrived at.

[120] St Vincent’s attempted to draw support from the fact that Mr Osmond did not immediately file his complaint following the alleged indecent touching by Mr Squires. Mr Osmond gave evidence on this point and was cross-examined.

[121] Mr Osmond stated in his evidence that as the incident occurred at 2:30 am on a Wednesday morning, he slept that day, following his shift and was not on duty the following day on Thursday and on Friday was required to attend court in his capacity as a Security Supervisor at St Vincent’s. Mr Osmond returned to work on Saturday, 5 April 2014 and on Sunday afternoon 6 April 2014 he emailed his complaint to Mr Judd. While Mr Osmond could have been more prompt with the making of his complaint to his Manager, it certainly was not unduly late and Mr Osmond provided a plausible explanation for the delay. It is also noted that Mr Osmond immediately discussed the incident with his colleague Mr Lord and then immediately raised it with Mr Squires. I do not draw the conclusion that Mr Osmond’s delayed complaint would reasonably lead St Vincent’s to the conclusion that it was not genuinely made.

[122] Mr Judd in his Report drew support from the fact the patient had not made a complaint herself. Given Mr Judd’s characterisation of the ‘psychotic’ patient 62 who had to be restrained and sedated63 it would not be unreasonable to conclude that the patient, because of her condition, may have difficulty even recalling the incident let alone going to the lengths of making an official complaint. St Vincent’s evidence was that they chose not to interview the patient. Mr Lord stated that although he did not make a complaint, he advised Mr Osmond to raise it with Mr Judd as he was the senior of the two.

[123] Mr Judd in his Report states that Mr Osmond did not advise St Vincent’s that he had withdrawn his allegation against Mr Squires to the police. 64 Much was made of this by St Vincent’s and it was said to impact on the credibility of Mr Osmond. What is lost in this conclusion by St Vincent’s is that Mr Osmond made a complaint to his Manager, not the NSW police. It was St Vincent’s that referred the complaint to the police. Mr Osmond could not withdraw an allegation that was never made by him to the police. In any event, Mr Osmond made a statement to the police that he had intended the matter be dealt with internally and did not wish to supply the police with any further information. To that end, he relied on his written report.65 In Mr Osmond’s evidence, he stated that he did not want Mr Squires to lose his security licence and that Detective Butler had told him that the matter was best dealt with internally.

[124] Detective Butler was not called to give evidence before the Commission. The evidence does not indicate that Mr Osmond withdrew any allegation he had previously made to the police. Upon resumption of the internal investigation Mr Osmond continued to maintain that he had witnessed Mr Squires indecently touch the patient. I am unable to conclude that Mr Osmond at any stage of the investigation process changed his position or withdrew any allegation. It may have been unwise not to provide the police with a full statement but Mr Osmond gave his reasons for not doing so, including that Detective Butler had advised of the futility of continuing the process. As Detective Butler did not give evidence, I accept the position was as described by Mr Osmond.

[125] Mr Judd in his findings referred to the majority of witnesses suggesting that nothing improper or inappropriate occurred, 66 however in his evidence Mr Judd acknowledged that this was not the case with Mr Osmond and Mr Lord confirming that the patient’s breast was touched and two nurses who did not observe anything improper having occurred.67 The other persons interviewed were not present at the event.

[126] The external investigation report from Pinnacle Integrity was completed on 11 February 2015 by a Belinda Nolan. Ms Nolan was not called by St Vincent’s to give evidence and as such her findings were not able to be questioned by Mr Osmond’s representatives or the Commission. The Report’s findings were relied upon by St Vincent’s as a justification for the dismissal and were summarised in Mr Osmond’s termination letter. The findings included that Mr Osmond had lodged a complaint against Mr Squires knowing it was false with a view to harass and/or victimise Mr Squires and further that he had been untruthful when responding to questions from Mr Judd.

[127] I am unwilling to place much weight on the external Report on the basis its author was not made available for cross examination and there were a number of factual differences in the Report in contrast to the evidence given before the Commission. This includes the evidence of Nurse Dwyer and Mr Squires. The Report concludes that Ms Dwyer is considered a reliable witness, following cross examination in the Commission this conclusion is not available even on Nurse Dwyer’s own admission having accepted that in a number of respects her evidence was different to what she told the external investigator. 68

[128] On a number of occasions, the Report refers to it being probable that Mr Osmond was unclear on what he saw, yet still finds his complaint as deliberately misleading. The Report makes no reference to Mr Osmond and Mr Lord immediately confronting Mr Squires after the search regarding his search of the patient. The external investigator appears not to have been told by Mr Squires that the patient stated “did you have a good feel” during the search and that Mr Squires then exchanged glances with Nurse Dwyer when this occurred, as these comments are not referenced in the Report.

[129] It is unclear how the Report concludes that Mr Osmond lodged a complaint that he knew was false and at the same time finds that if Mr Osmond did not lodge a false report he engaged in misconduct by failing to bring the complaint immediately to the attention of his Manager. Both allegations cannot be simultaneously sustained.

[130] Nothing arising from the evidence in chief or cross examination of Mr Osmond and Mr Lord causes me to doubt that they both witnessed Mr Squires touch the breast of the female patient, the event triggered a response from the patient, two security officers Mr Osmond and Mr Lord concluded that it was at least inappropriate and in Mr Osmond’s view indecent. Of the witnesses called by St Vincent’s, none alleged that the complaint made by Mr Osmond was false, the decision makers did not give evidence, 69 the author of the external report relied upon did not give evidence and Detective Senior Constable Butler did not give evidence.

[131] For St Vincent’s to find that Mr Squires did not ‘indecently’ touch a female patient on 2 April 2014, may have been a reasonable conclusion to reach on the facts available, however to go further and find that Mr Osmond had fabricated his complaint with malice, was a conclusion simply not available to St Vincent’s on any reasonable, and impartial evaluation of the evidence. Accordingly, I find that there existed no valid reason for the termination based on Mr Osmond’s conduct.

(b) Whether the person was notified of that reason

[132] Mr Osmond was notified of the reasons for his dismissal which occurred through a ‘show cause’ process which Mr Osmond participated in.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct

[133] Mr Osmond was provided with an opportunity to respond to the reasons given for his dismissal, and was allowed a support person.

(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal

[134] Mr Osmond was allowed a support person at all relevant times

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[135] This was a one off incident relating to Mr Osmond’s conduct.

(f) and (g) The size of the enterprise and human resource management capacity

[136] St Vincent’s is a large employer with human resource management capacity.

(h) Any other relevant matters

[137] I am unable to accept that there was any real distinction between what was alleged by Mr Osmond in his complaint and the evidence given at hearing by Mr Lord who suggested Mr Osmond lodge the complaint. Both security officers alleged Mr Squires touched the breast of the female patient and both considered the matter was serious enough to raise with Mr Squires himself. Following Mr Squires’ lack of response, both officers believed the incident should be referred to Mr Judd. Mr Lord was not sanctioned by St Vincent’s for his part in the process and Mr Osmond was terminated by St Vincent’s for making a false complaint.

[138] For the above reasons, I conclude that Mr Osmond was unfairly terminated from employment arising from the report/complaint he sent to his Manager that he completed which reflected his accurate recollection and understanding of the incident.

Remedy

[139] The prime remedy for a finding of unfair dismissal is reinstatement; 70 compensation alone is not to be awarded unless the Commission is satisfied that reinstatement is inappropriate. St Vincent’s submitted that reinstatement should not be entertained on the basis that they had lost trust and confidence in Mr Osmond. As I have found above, no valid reason for the termination existed, and as such the loss of trust and confidence was misguided.71 I am not satisfied that the employment relationship has broken down to the extent that it cannot be reinstated. As the Full Court of the Federal Court said in Perkins v Grace Worldwide (Aust) Pty Ltd:72

“In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another.”

[140] Nor am I satisfied that the working relationship between Mr Osmond and Mr Squires would be so untenable that it should prevent Mr Osmond being reinstated. In this matter, I have had particular regard for Mr Squires’ evidence under cross examination about his working relationship with Mr Osmond which continued after he became aware of the complaint made by Mr Osmond. This is despite the fact that St Vincent’s may always remain of the view that a valid reason existed for Mr Osmond’s termination. Mr Osmond remained employed for just short of 12 months following the making of his complaint.

[141] I will order that Mr Osmond be reinstated pursuant to s.391 of the Act to the position he was employed in immediately prior to his dismissal within 14 days of the date of the order on the basis that his continuity of employment is maintained. 73As explained by the Full Bench in Kenley v JB Hi Fi74 continuity of employment ensures that the period specified is taken into account in determining any entitlement to service related benefits.

[142] As stated; Mr Osmond seeks an order for lost wages. Section 391(3) of the Act allows the Commission to make such an order where it considers it appropriate to do so and s.391(4) mandates the Commission to take into account the amount of remuneration earned since the dismissal and the amount of any remuneration likely to be earned during the period of making the order for reinstatement and the actual reinstatement.

[143] Mr Osmond’s evidence was that since his termination he had obtained some casual cleaning work for a friend’s business, no evidence of what he had actually earned was provided however I assumed it was minimal. Mr Osmond was not cross examined on his earnings since termination or efforts to find alternative employment. Mr Osmond stated he had not obtained full-time employment and while he had looked for worked he had not applied for any positions. 75 Mr Osmond did not provide any evidence regarding his attempts to seek alternate employment.

[144] Section 391(3) provides that an order in respect of lost remuneration "may" be made if the Commission "considers it appropriate to do so" thus it is a discretionary exercise to be undertaken by the Commission.

[145] A significant period of time has elapsed since Mr Osmond’s termination, however I do not consider it appropriate to award Mr Osmond an amount for the total remuneration lost. Mr Osmond was paid 5 weeks’ pay in lieu of notice and on his own evidence has made minimal attempts to find alternate work in the security industry or in another field. The Commission was not made aware of any difficulties for persons securing security work. If, as Mr Osmond stated he has not even applied for any positions since his dismissal he has hardly attempted to mitigate his loss. It appears he has sat on his hands in regard to seeking alternate work. On the basis it may have taken Mr Osmond some time to find alternate security work, I will order that Mr Osmond be awarded the equivalent of 8 weeks’ salary less tax.

[146] The applicant’s claim that he was unfairly dismissed is upheld. An order [PR573734] for reinstatement with continuity of service together with an amount of 8 weeks’ salary less tax will issue. The reinstatement and order for lost salary will come into effect 14 days from the date of the order.

DEPUTY PRESIDENT

Appearances:

Mr Edghill and Mr Fox of the HSU on behalf of Mr Osmond

Ms Mackinlay Solicitor for the respondent

Hearing details:

2015

Sydney

13, 14, 15 July

 1  Exhibits A3 and A4

 2  Exhibit A3 attachment BO1 of applicant’s statement dated 18 May 2015

 3   Exhibit A3 attachment BO2

 4   PN829

 5   PN696

 6   PN733

 7   Exhibit A1

 8   PN136

 9   Transcript of External Investigation interview at p4 and p8 and at PN219

 10   Witness Statement of Mr. Lord Exhibit A1 at [30-31]

 11   Outline of submissions at (12)

 12   PD2006_026, Attachment RJ8 to the Witness statement of Ross Judd (Exhibit R3)

 13   Attachment RJ16 to Exhibit R3, Witness Statement of Mr. Judd

 14   RJ20

 15   Witness Statement of Mr Judd R3

 16   Exhibit R3- Witness Statement of Mr. Judd. Attachment RJ19 page 5

 17   Ibid at [54]

 18   Exhibit R3 Witness Statement of Mr. Judd at [76]

 19   PN1414, PN1446 Exhibit A6

 20   PN1549

 21   Exhibit R4

 22   PN2207-08

 23   PN2213

 24   Exhibit R5

 25   PN2358

 26   PN2359

 27   PN2408 PN2426

 28   PN2453

 29   PN2451

 30   Transcript of interview with external investigator p2 8/12/14

 31   PN2318

 32   PN2341

 33   Transcript of interview with external investigator p4 8/12/14

 34   PN2423

 35   Exhibit R6

 36   PN2508-2514

 37   PN2509

 38   PN2484

 39   PN2497

 40   Exhibit R6

 41   Ibid at[43]

 42   PN2584, PN2752

 43   PN2879

 44   PN2704-2706 and PN2932

45 PN2871

 46   PN2872

 47   PN2882

 48   PN2894

 49   Ibid see also Attachment DS3 of Exhibit R6 Mr. Squires’ witness statement

 50   Ibid at DS4

 51   PN2933

 52   PN2707, PN2934

 53   PN2930

 54   Exhibit R7

 55   PN2988

 56   Exhibit R7 at AR2

 57   PN3032

 58   Exhibit R8

 59   PN3121

 60   PN3084

 61   (1995) 62 IR 371 at 373

 62   PN1947

 63   PN1956

 64   Exhibit R3, Witness Statement of Mr. Judd. Attachment RJ19 page 6

 65   Exhibit R3, Witness Statement of Mr. Judd Attachment RJ16

 66   Exhibit R3, Witness Statement of Mr. Judd. Attachment RJ20

 67   PN1964

 68   PN2497

 69   See PN3941

 70   See Fair Work Bill 2008 Explanatory Memorandum at item 1555

 71   See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 where the Bench referred to alleged loss of trust and confidence needing to be soundly and rationally based.

 72   (1997) 72 IR 186 at 191

 73   See s.391(2) of the Act

 74   Print S7235 at [34]

 75   PN733

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<Price code C, PR573733>