1
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)
DEPUTY PRESIDENT BULL SYDNEY, 12 NOVEMBER 2015
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.
[2015] FWC 7677
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 7677
2
[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.
[2015] FWC 7677
3
[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 letter2 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
1Exhibits A3 and A4
2Exhibit A3 attachment BO1 of applicant’s statement dated 18 May 2015
[2015] FWC 7677
4
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 email3
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.
3 Exhibit A3 attachment BO2
4 PN829
[2015] FWC 7677
5
[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 incident5 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
5 PN696
[2015] FWC 7677
6
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 statement7, 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.
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]
[2015] FWC 7677
7
[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.
[2015] FWC 7677
8
[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 Directive12. 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 statement13 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
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
[2015] FWC 7677
9
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 letter14
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;
14 RJ20
[2015] FWC 7677
10
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 statement15 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.
15 Witness Statement of Mr Judd R3
[2015] FWC 7677
11
[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 15th and 23rd 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 police17 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 down18 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
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]
[2015] FWC 7677
12
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 statement24 and stated she did not recall anything
inappropriate about the search of the patient. Ms Dwyer was the Nursing Director at the time
19 PN1414, PN1446 Exhibit A6
20 PN1549
21 Exhibit R4
22 PN2207-08
23 PN2213
24 Exhibit R5
[2015] FWC 7677
13
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 statement35 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
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
[2015] FWC 7677
14
Evidence of Mr Des Squires
[76] Mr Squires provided a witness statement40 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 bit41.
[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 patient43 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
40 Exhibit R6
41 Ibid at[43]
42 PN2584, PN2752
43 PN2879
44 PN2704-2706 and PN2932
[2015] FWC 7677
15
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 statement54 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
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
[2015] FWC 7677
16
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
55 PN2988
56 Exhibit R7 at AR2
57 PN3032
[2015] FWC 7677
17
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 statement58 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.
58 Exhibit R8
59 PN3121
[2015] FWC 7677
18
[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:
60 PN3084
[2015] FWC 7677
19
“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.”
[108] I will now consider each of these factors in turn.
(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 Ltd61, 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
61 (1995) 62 IR 371 at 373
[2015] FWC 7677
20
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
[2015] FWC 7677
21
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
[2015] FWC 7677
22
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’ patient62 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
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
[2015] FWC 7677
23
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.
68 PN2497
69 See PN3941
[2015] FWC 7677
24
(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
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
[2015] FWC 7677
25
“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.
73 See s.391(2) of the Act
74 Print S7235 at [34]
75 PN733
[2015] FWC 7677
26
[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
Printed by authority of the Commonwealth Government Printer
Price code C, PR573733
OF THE FAIR WORK MMISSION Oil THE
