Mr Michael Scott v Latrobe Regional Hospital

[2019] FWC 5680

[2019] FWC 5680

FAIR WORK COMMISSION

DECISION

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

Mr Michael Scott
v
Latrobe Regional Hospital
(U2018/8873)

COMMISSIONER CIRKOVIC MELBOURNE, 6 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] Mr Michael Scott (the Applicant) was employed by Latrobe Regional Hospital (the Respondent) in a permanent part-time role of Security Officer, Grade 1, between 5 October 2011 and 6 August 2018, and on a casual basis as a hospital attendant between 15 June 2010 and 5 October 2011.

[2] At the time of his dismissal, the Applicant’s employment was governed by the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers ) Single Interest Enterprise Agreement 2016 - 2020 (Enterprise Agreement), and his duties were set out in the Security Officer position description.

[3] The Applicant’s employment with the Respondent was terminated on the basis that it had substantiated allegations made against the Applicant, involving failure to comply with the Respondent’s policies and the Applicant’s conduct in responding to a “Code Grey” in the Respondent’s emergency department (ED). The allegations were set out by the Respondent as three broad allegations, each of which contained a number of sub-allegations. At hearing, counsel for the Respondent confirmed that the Respondent no longer relies upon the third allegation. 1

[4] The allegations stem from the Applicant’s response to the incident involving an intoxicated mental health patient attempting to leave the emergency department on 20 June 2018. The second allegation relates more specifically to the Applicant’s conduct with respect to recording and reporting the incident.

[5] The uncontested facts of the matter insofar as they relate to the allegations are set out below. 2

[6] On the evening of 20 June 2018, Ms Melissa Fabris (Registered Nurse at the Respondent) called a Code Grey in the Respondent’s ED. The Applicant responded to the Code Grey, along with another security officer, Ms Caroline Allan. When Mr Scott and Ms Allan arrived at the ED, Ms Fabris and another security officer, Ms Melissa Ashworth, had exited the ED and were outside the ED entrance, along with a male patient. The ED entrance is located between 250 to 280 metres from the highway. When Mr Scott arrived, Ms Fabris was holding onto the patient’s right arm and Ms Ashworth was holding his left arm, and Ms Fabris was talking to the patient. The patient was large in stature, was not wearing a shirt and was affected by alcohol. The patient was attempting to leave the hospital.

[7] Upon his arrival, Mr Scott asked whether the patient was allowed to leave, to which Ms Fabris responded ‘no’. Ms Fabris did not issue any directions to Mr Scott, but continued to try to engage with the patient. Mr Scott immediately came around the patient’s right-hand side and stood in a front-on position in front of the patient, which blocked the patient’s path. At some stage, Ms Fabris let go of the patient’s right arm. Mr Scott subsequently took hold of the patient’s right arm. Ms Allan came in behind the patient and stood behind him. The patient continued to walk towards Mr Scott, but Mr Scott stood his ground and began to engage with the patient. The patient raised his leg so that his knee or foot struck Mr Scott’s groin. Mr Scott responded by immediately shouting words to the effect of “take him down”. Mr Scott brought his arm up around the patient’s neck and brought him to the ground. The patient suffered a cut to this nose. Very shortly (a matter of seconds) after Mr Scott had brought the patient down onto the ground, other members of the Code Grey Response Team arrived. Mr Matthew Lee was the Hospital Coordinator responsible for leading the Code Grey Response. At the time when Mr Scott initiated the restraint, the only personnel from the Code Grey Response Team present were security officers. The clinical members of the Code Grey Response Team had not arrived. They arrived in a matter of seconds after the restraint occurred.

[8] Later, on the evening of 20 June 2018, Mr Scott viewed the CCTV footage of the incident in the security office and recorded it on his mobile phone. Mr Lee told Mr Scott that he could contact the police regarding the Code Grey incident if he wished. Mr Scott telephoned the police to tell them about the Code Grey incident on 20 June 2018 and to report that he had been assaulted by the patient. The police attended the Respondent’s premises in response to Mr Scott’s telephone call regarding the Code Grey incident. Mr Scott provided the police with the patient’s name. Mr Scott showed the police into the ED and took them to speak with the patient. Before showing the police into the ED, Mr Scott did not inform or seek approval from Sue Lavery, who was the Hospital Coordinator on duty at the time, but did inform the nurse unit manager. The patient did not make a complaint regarding the incident.

[9] Following the incident on 20 June 2018, Mr Scott submitted a “Riskman” report in relation to the incident. Mr Terry Bailey, the Respondent’s Safety and Security Manager, was asked to undertake an investigation into the incident, along with human resources.

[10] Mr Scott was invited to a meeting to be held on 9 July 2018, by a letter dated 3 July 2018, which also invited him to bring a support person to the meeting. The letter of 3 July 2018 was signed by Mr Bailey, and placed in a sealed envelope (addressed to Mr Scott) on the window sill of the security office.

[11] On 9 July 2018, Mr Scott attended the Respondent’s premises for work and attended a meeting with Mr Bailey and Ms Tuyen Mai, Human Resource Manager. Mr Scott did not have a support person and declined the offer to postpone the meeting so that he could arrange for a support person to be present. During that meeting Mr Bailey clarified several times that there had not been a grievance lodged against Mr Scott, that he was not being asked to respond to allegations and that the meeting formed part of an information gathering exercise.

[12] On 19 July 2018, Mr Bailey and Mr Owen Drummond, General Manager Business Services attended the security office at the commencement of the Mr Scott’s shift and provided him with a letter dated 18 July 2019 outlining the allegations against him and informing him that he was being stood down and invited him to a meeting on 20 July 2018, along with a support person. The meeting to discuss the allegations was rescheduled, at the request of the Health Services Union of Australia trading as the Health Workers Union (the HWU). Upon request, the Respondent provided the HWU with copies of materials relevant to the investigation. On or around 1 August 2018, the Applicant provided the Respondent with a written response dated 30 July 2018 to the allegations against him.

[13] Mr Bailey, Mr Mark Jarred (General Manager of Human Resources), Mr Drummond and Ms Mai met on 1 August 2018 to discuss Mr Scott’s written response to the allegations. During the meeting, they discussed the allegations in light of Mr Scott’s response, and formed a view regarding each allegation. They also formed the view that Mr Scott had engaged in serious misconduct and that he should be dismissed.

[14] The Applicant was issued with a termination letter on 6 August 2018 stating that “… your conduct on 20 June 2018 amounts to serious misconduct and warrants the immediate termination of your employment.” The Respondent paid certain amounts to the Applicant, which included $4,503.78 (gross) by way of pay in lieu of notice.

[15] On 27 August 2018 the Applicant made an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[16] The matter did not resolve at conciliation and proceeded to arbitration before me on 18, 19 and 20 December 2018, 20 and 21 February 2019 and 26 June 2019. The Applicant was represented by the HWU and the Respondent was granted permission to be represented by its lawyers.

Initial matters to be considered

Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Applicant’s application.

[17] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Applicant’s application was made within the period required in s.394(2) of the Act;

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, meaning that the Small Business Fair Dismissal Code does not apply;

(d) the Applicant’s dismissal was not a case of genuine redundancy.

[18] Consequently I am satisfied that the Commission has jurisdiction to determine the merits of the application.

Evidence

[19] The Applicant relied upon witness statements from the Applicant Mr Scott and Mr Matthew Lee.

[20] The Respondent relied on witness statements from the following of its employees:

•  Ms Caroline Allan;

•  Ms Melissa Ashworth;

•  Ms Melissa Fabris;

•  Mr Owen Drummond;

•  Mr Terry Bailey; and

•  Ms Tuyen Mai.

[21] Each of the witnesses was subject to cross examination.

Was the dismissal harsh, unjust and/or unreasonable?

[22] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these statutory considerations in turn below:

Valid reason (s.387(a))

Legal Principles

[23] The employer must have a valid reason for the dismissal of the employee although it need not be the reason given to the employee at the time of the dismissal. 3 The reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”4

[24] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 5 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).6

[25] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. 7 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.8

[26] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: 9

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

Valid reasons relied upon by the Respondent

[27] I have set out below the allegations relied on by the Respondent in support of its submission that a valid reason exists. The allegations as set out below have been distilled by me from a variety of material presented by the Respondent, including the letter of termination dated 6 August 2018, various written submissions and submissions made during oral hearing. Ultimately, the allegations as set out below were confirmed by the Respondent in a further oral hearing on 26 June 2019. 10 At that time the Applicant confirmed its response to the allegations.

Allegation 1 – Assault

[28] Allegation 1 involves an incident relating to an intoxicated mental health patient attempting to leave the Respondent’s emergency department and a finding that the Applicant failed to follow the Respondent’s prescribed policies, leading to an assault of the patient.

[29] It is alleged by the respondent that on 20 June 2018, the Applicant:

(a) was unnecessarily aggressive, getting too close and “in the face “ of the patient;

(b) lost his temper and self control when he was kicked or kneed in the groin area by the patient;

(c) made physical contact with the patient with force, while saying loudly or yelling (amongst other things apparently) “take him down” and “get on the ground” and took him forcefully to the ground in a “neck lock” causing bleeding to his nose;

(d) used disproportionate and excessive and unnecessary force; and

(e) was not in imminent personal danger so as to be in a situation of self defence.

[30] The Respondent noted in its termination letter to the Applicant that:

“…you [the Applicant] were formally counselled by your manager, Terry Bailey on 15 February 2018 for a similar incident where you also failed to apply DEEP techniques and were warned against applying any other techniques other than those sanctioned by the hospital and that Code Grey responses were to be clinically led.”

Allegation 2 – Theft and misuse of CCTV footage

[31] Allegation 2 involves the Applicant’s obtaining footage of the incident by recording the incident on his mobile phone without authorisation from the respondent:

[32] It is alleged by the respondent that on20 June 2018 the Applicant:

(a) viewed the CCTV footage of the incident in the security office and recorded it on his mobile phone;

(b) whilst recording and viewing the CCTV footage said to Ms Ashworth and Ms Allan words to the effect of “I shouldn’t be doing this ... you get into trouble for doing this...you can’t do this because you’ll lose your job over this”;

(c) telephoned the police about the Code Grey incident and to report an assault on him by the patient;

(d) showed the police the CCTV footage he recorded on his mobile phone;

(e) provided the police with the patient’s name; and

(f) showed the police into the ED to speak with the patient without seeking approval from the hospital co-ordinator on duty at the time.

[33] The Respondent submitted that the substantiation of allegation 1 “was the substantive reason for the termination of [the Applicant’s] employment” 11 and “allegation 2 … was also relied on as a secondary reason for termination, of lesser importance …”12 The Respondent submitted that the alleged conductwas in breach of company policies, amounting to serious misconduct.13

[34] The Respondent promulgated a number of policies which I have considered in coming to my conclusion. The Respondent alleges breaches of its:

•  Restraint Protocol;

•  De-escalation , Engagement and Prevention (DEEP) Trainers Manual;

•  Occupational Violence and Aggression Prevention Protocol;

•  Occupational Health and Safety Policy;

•  Emergency Codes Management Policy;

•  Information Privacy Policy; and

•  Release of Documents or Information (Other than Via (FOI) Freedom of Information) Policy. 14

[35] Further, the Respondent submits that:

“the critical point is that, regardless of the minutiae [the Respondent’s] policies and the ways in which they were breached, there was – arising from Mr Scott’s conduct – a valid reason for termination of his employment as a security guard. His conduct demonstrates an inability to maintain the composure and self-control which are necessary to be employed as a hospital security guard dealing with often difficult patients”. 15

[36] The Applicant confirmed that the Applicant was required to adhere to the policies referred to at [34] and that prior to 5 February 2018 these were available to the Applicant by way of hard copy in the Respondent’s security office and post-5 February 2018 also available via the internet and intranet which the Applicant was able to access in the security office. 16

Evidence – CCTV Footage

[37] The evidence of this matter included a 57-second excerpt of CCTV footage of the 20 June 2018 incident, recorded from an angle seemingly just in front and to the left of the hospital emergency department doorway, facing away from the hospital and towards car parking and other roads. The camera is directed slightly down towards a pedestrian crossing on the road, giving a good view of the immediate area, albeit limited in angle.

[38] Unfortunately, this excerpt is the only remaining “official” video recording of the incident because Mr Drummond (General Manager Business Services) made the decision not to “quarantine” any of the other captured footage, resulting in its destruction in accordance with the Respondent’s ordinary processes. 17 Whilst not strictly relevant to the dispute before me, I observe that the Respondent’s conduct in failing to quarantine the entirety of the CCTV footage in the circumstances before me is perplexing at best. As a matter of prudent Human Resource practice, I would have expected the Respondent to go to some lengths to preserve such evidence in circumstances where an investigation into the incident had commenced.

[39] The Applicant also submitted into evidence a chronological set of three videos of the incident from a different angle, that being slightly lower than angle in the abovementioned video, and to the right hand side of the hospital doors. The submitted videos were produced by the Applicant’s recording on his mobile phone the playback of the “unquarantined” CCTV footage in the security room. The footage provides 41 seconds of chronological evidence. I have had regard to the second set of videos.

[40] The following is a description of the events as I have observed them from the footage. My observations are confined to visual context only as the footage evidence has no audio.

•  At 2-4s. a patient, accompanied by a female on either side of him (Registered Nurse Ms Fabris on his right, Security Officer Ms Ashworth on his left), walks from the hospital towards and onto the pedestrian crossing. The nurses are attempting to establish a hold on the upper part of each of his arms as he attempts to swat them away. The patient’s gait is slightly unsteady.   

•  At 4-5s. as the three abovementioned individuals are reaching the middle of the pedestrian crossing, the Applicant runs to the front of the man and places himself in his path, at a rough distance of one foot from the patient.

•  At 6-9s. the Applicant appears to be attempting to engage the patient’s hands in some manner. Ms Ashworth has hold of the left arm. The view of the patient’s right arm is partially obscured but it appears that Ms Fabris has some hold on the patient’s right arm. The Applicant and Ms Fabris appear to be talking to the patient. The patient is resisting the Applicant’s efforts to hold his arms. Another female Security Officer, Ms Allan, appears in the footage at the rear of the situation and positions herself behind the right shoulder of the patient.

•  At 10-16s. Ms Fabris has let go of the patient’s right arm. It appears that Ms Ashworth still holds the left. The patient steps forward and appears to be attempting to continue forward. The Applicant moves backwards less than a metre. Ms Allan is positioned slightly less than a metre behind the patient and has her left hand rested on his upper back. The Applicant appears to be attempting to create a hold on the patient’s hands and he and the patient appear to be essentially in contact with each other, or standing less than 30cm from each other. The Applicant appears to be talking.

•  At 16-19s. the patient turns slowly towards his left. Ms Fabris is now just under a metre away from the patient and does not have contact with him. Ms Allan maintains the left hand on the patient’s back. The Applicant appears to be continuing to struggle to create a hold on the patient’s arms at the front, and it appears that Ms Ashworth still holds the left.

•  At 20-25s. the Applicant lowers his torso slightly and the patient raises his knee, appearing to make contact with the groin area of the Applicant. The Applicant swings his right arm and hand around the neck of the patient. His left hand then moves from the patient’s upper back also around the patient’s neck. Ms Ashworth maintains her hold on the patient’s left arm, and Ms Allan maintains what appears to be some minimal contact on the patient’s back. Ms Fabris has stepped clear from the engagement by a metre, moving to a couple of metres.

•  At 24-30s. it appears that the Applicant places some force on the patient to bring him forward or down. Ms Ashworth maintains her hold on the patient’s left. The patient takes a step and, as the Applicant lowers the patient’s head, either stumbles or is pulled to the ground. The Applicant and Ms Ashworth maintain their footing. As the patient is falling to the ground Ms Allan loses contact. Once the patient is on the ground Mr Scott, Ms Ashworth and Ms Allan begin to secure the patient. The patient appears to be lying on his right hand side, slightly turned to his front. Another male nurse in blue is arriving to the group on the ground and Mr Lee runs from the hospital entrance to the scene. Both new arrivals join in securing the patient on the ground. Ms Fabris maintains her position on the outer of the group, walking to the end of the group where the patient’s head would be (if not obscured by the others’ securing efforts).

•  At 30-39s. another four people arrive to the scene, while the securing scenario described above remains ongoing. One of these three, a white haired man, appears to be associated with the hospital and stops close to the group and appears to speak with them. The other three people are civilians, approaching the scene.

•  At 40-57s. Ms Fabris leaves the scene by heading back towards the hospital. The white-haired man speaks briefly with the three civilians who then continue forward away from the scene. Ms Allan briefly changes her position in the securing group from the top half of the patient to one of his legs. The footage ends.

Submissions of the parties in relation to allegation 1

[41] In addition to the uncontested facts set out above at [6] - [7], the following matters are not in contest with respect to allegation 1.

(a) A Code Grey is called to provide a co-ordinated response in the management of emergency situations involving a personal threat; 18

(b) When responding to Code Grey incidents, employees of the respondent are required to use de-escalation, engagement and prevention (DEEP) techniques, except in cases of self-defence, when reasonable proportionate responsive force may be used; 19

(c) Security officers form part of the Code Grey response team; 20

(d) Mr Scott most recently completed practical DEEP training on 14 May 2018, and online training in April 2018; 21

(e) There is no prescribed DEEP technique to stop an absconding patient; 22

(f) When responding to Code Grey incidents, the Code Grey Response Team is clinically led; 23

(g) The Applicant made physical contact with the patient. 24

[42] It is in contest as to whether:

(a) Mr Scott made physical contact with the patient “with force” and took him down in a “neck lock”; 25

(b) Mr Lee said to Mr Scott words to the effect of “ease off ”; 26

(c) the patient was moving slowly and was unsteady on his feet; 27

(d) Mr Scott lost his temper and self-control after being kicked or kneed in the groin area; 28

(e) Mr Scott’s conduct in bringing the patient to the ground was in direct retaliation to the fact that the patient had kneed or kicked him in the groin; 29

(f) it was open to Mr Scott to move away from the patient instead of bringing him down to the ground; 30

(g) the patient was aggressive; 31

(h) the patient was refusing medical treatment; 32

(i) the patient was a suicide risk; 33

(j) Ms Fabris and Ms Ashworth first attempted to de-escalate the situation in the emergency department, and if so, whether these attempts succeeded in de-escalating the situation; 34

(k) Mr Scott’s actions helped to de-escalate the situation; 35

(l) the situation envisaged on page 24 of the DEEP manual and safety note applied in the incident on 20 June 2018; 36

(m) Mr Scott took over the situation from Ms Fabris; 37 and

(n) Mr Scott should have stood in front of the patient during the incident and whether he put himself in harm’s way. 38

[43] The Respondent relies upon the following excerpts of its policies: 39

“Restraint Protocol

…

•  Latrobe Regional Hospital (LRH) promotes a policy of “least restraint”, and seeks that persons are only restrained when absolutely necessary…

…

Physical Restraint

•  Involves the application of force to restrict or prevent movement, including the use of De-Escalation Engagement and Prevention (DEEP) “hands on” techniques.”

“De Escalation Engagement and Prevention (DEEP) Trainers Manual

…

Three Person Team

Moving

•  2 & 3 move the person, by driving them forward using their elbows behind the person’s armpit.

•  2 & 3 also need to keep in close to the person, hip to hip. To prevent excessive movement.

•  If the person stops or pulls back while moving, it is important that 2 & 3 keep moving forward.

•  The person should be moved at a steady pace instructed by number one to ‘follow my feet’. .

SAFETY NOTE: If at any time the team feel that they are losing their hold, or the person is struggling or fighting back too much, anybody can say “DOWN” and the whole team will go back to the ground where the situation can be contained safely.”

“Occupational Violence and Aggression Prevention Protocol

…

Principles

•  Violence and aggression within the organisation is unacceptable and shall not be tolerated.

•  Staff shall be provided with appropriate supervision, information and training to enable them to understand and implement agreed safe practices.

•  Employers and employees share accountability for implementing violence and aggression prevention activities.

•  Clear policies and procedures, mandatory education and a positive culture contribute to a reduction in occupational violence and aggression (OVA).

…

Assessing Zones of Risk for Violence

…

High Risk: physical or verbal assault, aggression, threats, history of violence or aggression, impaired due to alcohol/drug use, inability to comply with boundaries/request to manage aggressive behaviour/language, access to weapons, inadequate security and safety controls, inadequate staffing levels, lack of training, long waiting times, crowded rooms/units, poorly lit environment, unrestricted movement of the public.

…

Good practice approaches to preventing and managing OVA

•  Remain calm, communicate clearly, provide a calming environment

•  Engage the person, use non-threatening body language

•  Give clear instructions on policies and protocols

•  De-escalate via discussion and mutual expectations

•  Use a personal alarm and advise your colleagues of where you are

•  Keep a safe distance from the patient

•  Remove weapons and ensure clear exits

•  Avoid coercive and restrictive approaches that will escalate the situation

•  Have a coordinated and planned Code Grey response.”

“Occupational Health and Safety Policy

…

Employees and volunteers

•  Assume individual accountability for personal health and safety including psychological wellbeing.

•  Undertake tasks in accordance with relevant standard operating procedures and/or work instructions.

•  Participate in health and safety consultative forums and contribute ideas to improving the health and safety of the department/unit/ward/team.

•  Where appropriate, participate in workplace health and safety training, programs and initiatives to embed a safety culture.

•  Report all work health and safety breaches, hazards and incidents, including near misses, to the line manager and assist with actions to reduce and eliminate risks.”

“Emergency Codes Management Policy

…

Code Grey Response Team:

•  the Code Grey Team is a clinically led specialist team trained to provide a coordinated response in the de-escalation and management of aggression and violence

•  the Code Grey - Emergency Response Team shall comprise the following:

•  Emergency Coordinator

•  AUM Flynn

•  Mental Health Clinician (ED/Triage Team)

•  Consultation Liaison Nurse

•  Consultation Liaison Registrar

•  Hospital Security x 2 (excluding ED).”

[44] The Applicant submits that he acted in self-defence, rather than retaliation. The Applicant accepts that he was responding to a Code Grey (being an unarmed personal threat) and that the “incident was a fast moving and escalating situation”, 40 but says that against the backdrop of the “gamut of the circumstances surrounding the incident”, the force used by the Applicant in restraining the patient “was proportionate to the threat”.41

[45] Further, the Applicant submits that his positioning himself in front of the patient was not in conflict with the DEEP training, which suggests that a person stand in front of a patient in order to execute a three-person DEEP manoeuvre. 42

[46] The Applicant submits that the Applicant’s conduct when viewed objectively amounts to reasonable responsive action conducted in accordance with the requirements of his role and training, and as such, the conduct cannot amount to justifiable reason for termination.

[47] The Respondent submits that the Applicant’s conduct with respect to this allegation constitutes serious misconduct particularly in light of:

•  the Applicant’s role as a security officer which involves dealing with often difficult patients and requires composure and self-control. 43

•  the Respondent’s role as a public hospital with duties of care to its patients and staff. 44

My findings regarding allegation 1

[48] Counsel for the Respondent described the main CCTV footage as the “best evidence” of what occurred. I have had regard to all of the evidence, including the CCTV footage.

[49] On the balance of probabilities I am satisfied that Mr Scott “made physical contact with the patient” with some force. However, I do not accept that the evidence before me including the video footage supports a finding that Mr Scott “used excessive force” in “taking down” the patient. I do not accept that there is sufficient evidence before me to accept that the Applicant “lost his temper and self-control”, acted “aggressively”, and in “retaliation to the fact that patient had kneed or kicked him in the groin”. In my view, having placed himself in the situation, Mr Scott acted with restraint once he was kicked in the groin by the patient. On the evidence before me, the patient suffered minor injury only.

[50] I do not accept that the Applicant “took over from Melissa Fabris and took control of the situation without being directed to do so”. 45 I accept that Ms Fabris had a duty of care to the patient, however, on her own admission, she was not a member of the Code Grey Response Team as defined in the Respondent’s policy.46 The only members of the Response Team who were present at the time of the incident were the security officers, one of whom was the Applicant.

[51] That said, in my view, in this case, the Applicant acted prematurely, given that the patient was still somewhere between 250 and 280 metres from the freeway. In my view, at that point in time, it was open to the Applicant to move away from the patient. The footage I observed shows the patient behaving somewhat erratically, but not with such speed, agility and aggression that an intervention departing from the DEEP technique, or acting in the manner contemplated by the “Safety Note” above was warranted. The patient was moving slowly and appeared to be unsteady on his feet. In those circumstances, it is not necessary for me to determine whether or not the patient was a suicide risk or refusing medical treatment.

[52] I am satisfied that the Applicant placed his body in the way of the patient such that a finding that he was acting in “self-defence” is unsustainable. In this regard, I have also accepted the Respondent’s submission that by so placing himself physically in front of the patient, the Applicant breached the Respondent’s DEEP training and other related policies.

[53] I accept the evidence of Mr Bailey that the Applicant was counselled on 15 February 2018 to the effect that DEEP techniques are the only holds that are acceptable within the hospital. 47

[54] On the material before me, I am not satisfied that Me Lee said words to the effect of “ease off a bit”. On this issue, I prefer the evidence of Mr Scott and Mr Lee to that of Ms Allan, Ms Ashworth and Mr Drummond. Mr Scott and Mr Lee do not recall whether the words were said. I have no reason to doubt Mr Lee’s evidence. In my view, given that Mr Lee was the lead of the Code Grey, if he was concerned with Mr Scott’s conduct during the incident, in my view it is likely that he would recall having expressed that concern.

[55] On the basis of the above, the following parts of allegation 1 are made out in part:

•  1(a) – I accept that Mr Scott got “too close and in the face of the patient”;

•  1(c) – I accept that Mr Scott “made physical contact with the patient” with some force and said words to the effect of “take him down and get on the ground” and took the patient to the ground in a neck lock, causing bleeding to the nose; and

•  1(e) – I accept that Mr Scott was not in imminent personal danger so as to be in a position of self-defence.

[56] The remaining parts of allegation 1 are not made out.

[57] It follows that in my view, the Applicant breached the Respondent’s DEEP training, and as a consequence, sections of the policies above.

Submissions in relation to allegation 2

[58] The undisputed facts regarding allegation 2 are at [8] above.

[59] It is in contest that:

(a) whilst viewing and recording the CCTV footage, the Applicant made comments to Ms Ashworth and Ms Allan with respect to the recording to the effect of “I shouldn’t be doing this… you get into trouble for doing this or you know you’re not allowed to do this… record. You can’t do this because you lose your job over this;

(b) the Applicant showed the police CCTV footage; and

(c) whether the Applicant recorded the CCTV footage of the incident to protect his legal rights, in the context of potential criminal charges against the patient, and whether this was justified.

[60] The Respondent submits that the following policy provisions were breached by the alleged conduct in allegation 2: 48

“Information Privacy Policy

…

•  Personal information is only disclosed where required by law or by funding arrangements.

…”

“Release of Documents or Information (Other than Via (FOI) Freedom of Information) Policy

…

Requests by Police:

•  Occasionally, a member of Victoria Police may approach staff for information about a person believed to be or to have been a patient of, or received services from the Hospital. The Health Services Act and the Mental Health Act aim to preserve the confidentiality of patient/client information. However, disclosure is permitted if it is necessary to lessen or prevent a serious and imminent threat to an individual’s life, health, safety or welfare or a serious threat to public health, public safety or public welfare. All requests shall be referred to the Hospital Coordinator who shall contact the Executive on call to determine the Hospital’s response in consultation with the Chief Executive (CE).”

[61] The Respondent also submits that the Applicant’s recording the footage was “inherently wrong”, irrespective of any nexus to its policies.

Findings with respect to allegation 2

[62] Allegation 2(a), (c), (e) and (f) are admitted. On the basis of the material before me, 2(c), (e) and (f) are in breach of the policies above, whilst 2(a) is not.

[63] The Applicant denies allegations 2(b) and (d). Where there is a contest between the Applicant’s evidence and that of Ms Ashworth and Ms Allan, I prefer the Applicant’s evidence. In relation to 2(b), the Applicant denies making the comments. Ms Ashworth’s evidence under cross-examination on this issue was not helpful. 49 The notes that Ms Allan had previously provided during the investigation did not refer to the alleged comments. Ms Allan’s first reference to the alleged comments is in her witness statement prepared for these proceedings. If Ms Allan had heard the Applicant make the comments, I would have expected her to include a reference to the comments in her notes provided during the investigation.50 For the reasons above, on the balance of probabilities allegation (b) is not established. In relation to 2(d), the Applicant’s evidence is that he only showed the police officers the timeline on the video, not the footage itself. I am not persuaded by Ms Ashworth’s evidence that she “sighted” or “glimpsed over” at the phone and on that basis could determine that the Applicant had showed the police officers the footage.51 Ms Allan conceded that she did not see the screen of the phone.52 For the reasons above, on the balance of probabilities allegation (d) is not established.

[64] The Respondent has failed to demonstrate the basis on which I should find that the Applicant’s recording the footage was “inherently wrong”. I accept the Applicant’s evidence that he recorded the footage to protect his rights.

Findings with respect to valid reason

[65] As stated above, I am satisfied that the Applicant’s conduct as stated at [55]aboveis in breach of the Respondent’s policies. I have formed the view that, to the extent that this conduct was an unauthorized deviation from the DEEP training and related policies, allegation 1 has in part been made out by the Respondent. I have made findings in relation to the remainder of allegation 1 at [48] - [56] such that those allegations are not substantiated.

[66] I am satisfied that the breach of policy in relation to allegation 1 is sufficiently serious to conclude that there is a valid reason for termination of employment. As I have found a valid reason, it is not necessary for me to determine whether the Applicant’s conduct would meet the definition of “an assault at common law” as suggested by the Respondent. 53

[67] In relation to allegation 2, I have determined that the Applicant’s conduct was in breach of policy, but in my view is not sufficiently serious to justify either on its own or collectively a valid reason for termination.

Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))

[68] The Respondent submits that the Applicant was notified of the reasons for his dismissal as required by subsection 387(b) of the Act. Those reasons were that the three allegations made against him had been found proven and the Respondent considered that the alleged misconduct constituted serious misconduct that warranted dismissal. The Applicant does not contest that he was notified of the reasons for dismissal and given an opportunity to respond to the allegations. 54

[69] I find that the Applicant was given notification of the reasons for his dismissal and provided with an opportunity to respond. This weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.

Any unreasonable refusal to allow the Applicant to have a support person present (s.387(d))

[70] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”50

[71] The Applicant concedes that he was offered the opportunity to have a support person. 55

[72] This finding weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.

Warnings about unsatisfactory performance (s.387(e))

[73] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance, before the dismissal.

[74] In this case, the reasons for dismissal related to the Applicant’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of the Respondent on procedures followed in effecting the dismissal and absence of dedicated human resource management specialists or expertise (s.387(f)&(g))

[75] The Applicant submits that the Respondent is a large employer with a large, dedicated HR department and legal counsel and that this contributes to the harsh and unreasonable nature of the termination. 56 The Respondent submits that these criteria are not relevant, due to the Respondent’s size and experience.

[76] I do not consider there to be any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant’s dismissal. This is a neutral factor in this case.

Other relevant matters (s.387(h))

[77] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.

Mitigating circumstances

[78] The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal. 57 The Commission should consider all the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.58

[79] I have found that there was a valid reason for termination in this case, as discussed at [65]. However, this must be viewed in the context of the apparent tension between, on the one hand, Mr Scott’s responsibility to perform his role and prevent the patient from leaving the hospital and, on the other, the Respondent’s Restraint Policy, requiring that he limit physical restraint to the circumstances and in the manner specified therein. 59 Further, the parties do not dispute that “there is no central repository in relation to DEEP techniques, policies or procedures other than Attachment ‘TB-5’ to the witness statement of Terry Bailey – DEEP Manual”.60 The fault in Mr Scott’s conduct was that he acted too soon in placing himself in front of the patient and taking him down in a “neck lock”. That said, he was let down by the other employees on the scene, who appeared to have failed to de-escalate the situation. Further, Mr Scott’s conduct must be viewed in the context of the absence of a clinical lead of the Emergency Response Team. As stated above, the only members of the Response Team who were present at the time of the incident were the security officers, one of whom was the Applicant.

[80] Even though on a strict reading of the policies and their application, the Applicant’s conduct was in breach, in the circumstances I am of the view that termination was disproportionate to the Applicant’s conduct.

Applicant’s length of service and personal circumstances

[81] I have taken into account the Applicant’s length of service, which was over eight years and without formal disciplinary action or written warning. 61

[82] I note that the Applicant is 53 years old, and the dismissal has caused him personal distress and financial loss.

Failure to follow Enterprise Agreement disciplinary procedure

[83] The Applicant submitted that I should have regard to an alleged failure of the Respondent to follow the investigation and disciplinary procedures in the Enterprise Agreement. The Respondent submitted that it had complied with the relevant procedures. Clause 8.4 of the Enterprise Agreement is set out below.

“8.4 Disciplinary procedure

(a) The disciplinary procedure applies if, following the investigation, the Employer reasonably considers that the Employee’s conduct or performance may warrant disciplinary steps being taken.

(b) The Employer will:

(i) notify the Employee in writing of the outcome of the investigation process, including the basis of any conclusion; and

(ii) meet with the Employee.

(c) In considering whether to take disciplinary action, the Employer will consider:

(i) whether there is a valid reason related to the conduct or performance of the Employee arising from the investigation justifying disciplinary action;

(ii) whether the Employee knew or ought to have known that the conduct or performance was below acceptable standards; and

(iii) any explanation by the employee relating to conduct including any matters raised in mitigation.”

[84] Based on the material before me, I am satisfied that the letter to the Applicant dated 18 July 2019 is unequivocally part of an investigation process; not a written record of the outcome of the investigation. The written outcome of the investigation, including findings and the bases of the Respondent’s conclusions, was provided to the Applicant in the letter of termination dated 6 August 2019. Pursuant to clause 8.4, the Respondent was required to “meet with the employee” before taking the disciplinary action that it did. Based on the above, I am satisfied that the Respondent failed to follow the disciplinary process set out in the Enterprise Agreement, and in the circumstances, this contributes to the unreasonableness of the dismissal.

Conclusion as to whether the dismissal was harsh, unjust and/or unreasonable

[85] Having considered each of the matters specified in s.387 of the Act, I find that the Applicant’s dismissal was harsh and unreasonable. In making that determination, I have weighed and considered all the matters in paragraphs [65] – [67]above including my findings as to the Applicant’s conduct, which I have found constituted a valid reason for his dismissal. While the existence of a valid reason is significant, the matters discussed in relation to (s.387(h)) have contributed to my decision that the dismissal was harsh and unreasonable.

Remedy

[86] In light of my findings that the Applicant was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to him.

Reinstatement

[87] Both parties submit that reinstatement is not an appropriate remedy. 62 On the material before me I am satisfied that the employment relationship has irretrievably broken down and that the Respondent no longer has the requisite trust and confidence in the Applicant such that it would not be feasible to re-establish an employment relationship. On that basis, I accept that reinstatement of the Applicant is inappropriate in the circumstances.

Compensation

[88] In assessing compensation, it is necessary to take into account all the circumstances of the case, including the specific matters identified in s.392(2)(a) to (g), and to consider the other relevant requirements of s.392.

[89] The well-established approach to the assessment of compensation under s.392 is to apply the “Sprigg formula”, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. 63 This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages.64Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[90] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic,” 65 but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide,66 “while the task of determining an anticipated period of employment can be difficult, it must be done.”67

[91] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 68

[92] Before turning to the assessment of total remuneration I note the following:

(i) The Applicant worked for the Respondent from 15 June 2010, for a period of over 8 years, with no formal disciplinary action or written warning. Apart from his counselling by Mr Bailey referred to at [53], the Applicant has an unblemished work history.

(ii) The Applicant earned $1,216.09 per week (before tax); 69 and

(iii) The Applicant was 53 years old at the time of the dismissal.

Remuneration that would have been received if the dismissal had not occurred (s.392(2)(c))

[93] Given the length of the Applicant’s service, his prior unblemished record and his age, I find that Mr Scott would have remained working for the Respondent for 12 months and would have received $63,236.68 over that period ($1,216.09 per week x 52). This is the starting point for my assessment of compensation. I find that, had he not been dismissed, Mr Scott would have earned $63, 236.68.

[94] In so finding, I have had regard to the entire circumstances including the bases upon which the termination was found to be unfair and the counselling Mr Scott received in February 2018 to the effect that DEEP techniques are the only holds that are acceptable within the hospital. 70

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[95] After his dismissal Mr Scott was able to earn other remuneration. The Applicant submits:

“164. The Applicant received payment in lieu of notice of termination from the Respondent. This amount is to be deducted from the estimated remuneration lost.

Payment in lieu of notice = $4,503.78

Amount to be deducted from the estimated remuneration lost: $4,503.78

165. The Applicant began looking for work immediately when fit to work, post his termination. He says that he was medically unfit to work for a period after his termination. The Applicant submits that it is reasonable to delay searching for work until such time as he was medically fit, as was the case in Hillbrick v Marshall Lethlean Industries Pty Ltd.

166. However, he was only able to secure employment as a delivery driver at [Blackwoods Readymixed & Garden Supplies Pty Ltd (Blackwoods)].

167. The Applicant was paid $25 per hour. Since his termination, the Applicant earned $10,535.14 in the six months since his termination.”

[96] From this submission, I conclude that the Applicant earned $10,535.14 before tax from his employment at Blackwoods. Therefore I propose to deduct $15,038.92 ($4,503.78 + $10,535.14) from the amount at [93] above. This leaves a compensation amount of $48,197.76.

Length of service (s.392(2)(b))
[97] I do not consider that Mr Scott’s length of service calls for any upward or downward adjustment to the compensation amount that should otherwise be ordered.

Other matters (s.392(2)(g))
[98] As there is no element of future economic loss in this case, there is no basis for any deduction for contingencies. In relation to taxation, compensation will be determined as a gross amount and it will be left to the Respondent to deduct any amount of taxation required by law. No submissions were made that I should make an allowance as to any long service leave accrued so I do not propose to do so.

Viability (s.392(2)(a))
[99] There was no evidence that an order of compensation would have any effect on the Respondent’s viability. There will be no deduction from the compensation amount on this score.

Mitigation efforts (s.392(2)(d))
[100] The Applicant submits that his delay in seeking employment was for medical reasons. 71 The Applicant gave evidence that he began looking for work in “mid November”, and commenced employment with Blackwoods on 10 December 2019.72 The Applicant’s evidence included certificates of incapacity covering the period from 23 July 2018 to 8 November 2018.73The medical evidence was not challenged.

[101] The Applicant’s employment with Blackwoods ceased on or about 13 February 2019. 74

[102] There is no evidence before me as to the efforts, if any, made by Mr Scott to mitigate his lost beyond 13 February 2019. I propose to make a further deduction of 10 per cent ($4,819.78) from the compensation amount of $48,197.76 on account of this. This leaves a compensation amount of $43,377.98.

Misconduct (s.392(3))
[103] My findings as to Mr Scott’s conduct are at paragraphs [48] - [57] and [62] –[64]. I am satisfied that the Applicant’s misconduct contributed to the Respondent’s decision to dismiss him, accordingly s.392(3) provides that I must reduce the amount I would otherwise order under s.392(1) by an appropriate amount on account of the misconduct. I am satisfied that his misconduct requires a deduction under s.393(3) of 10 per cent from the compensation amount of $43,378 ($4,337.80). This leaves a compensation amount of $39,040.19.

Shock, distress etc. disregarded (s.392(4))

[104] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5))
[105] The ‘compensation cap’ is set in s.392(5), which provides that the amount ordered to be paid by the Commission must not exceed the lesser of:

•  The total amount of remuneration either received by the person, or to which the person is entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, and

•  Half the amount of the high income threshold immediately before the dismissal.

[106] At 1 July 2018, the high income threshold was $145,400 per annum. Therefore, the compensation cap is the lessor of:

•  $31,618.34 (26 x $1,216.09); or

•  $72,700 for a dismissal that occurred on or after 1 July 2018.

[107] The amount of compensation is accordingly capped to a maximum of 26 weeks’ remuneration.

Instalments (s.393)

[108] I do not consider that there is any reason for compensation to be made by way of instalments.

3. Conclusion

[109] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe 75 a Full Bench recently observed that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. That is to say, the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

[110] Step 1: Lost remuneration (12 months)                              $63,236.68

  Step 2: Remuneration earned or likely to be earned          -$15,038.92

  Step 3: Deduction for failure to mitigate loss (10 percent)   -$4,819.78

  Step 4: Deduction for misconduct (10 percent)                  -$4,337.80

  Step 5: Application of compensation cap   ($31,618.34)

       _________

  Provisional amount:   $31,618.34

       _________

[111] The amount of compensation which is derived from the above considerations is $31,618.34, less deduction of any tax as required by law. I now turn to consider whether the provisional amount of compensation is an appropriate amount of compensation in all the circumstances.

[112] The Respondent’s submission in respect of compensation can be summarised as follows:

“Indeed, but for that misconduct the termination clearly would not have occurred. It therefore follows as a matter of causation that the misconduct is the sole cause of the termination, so that logically there should be a 100% reduction in the amount of compensation awarded. In that case, the compensation should be zero. Such a result would reflect the gravity of the misconduct. Failing that, the reduction should be significant, such as the 90% reduction which was applied by Tolley C in Hands v Securency Pty Ltd. A 90% reduction in this case would result in a compensation figure of $1,657.94. An 80% reduction would result in $3,315.88. A 50% reduction would result in $8,289.71 (all gross figures (before tax)).”

Conclusion

[113] Mr Scott’s conduct involved a breach of policy but having regard to the mitigating circumstances referred to at [79] above I am not persuaded by the Respondent’s submission that any award of compensation be “reduced by 100%”. I have concluded that the dismissal was harsh and unreasonable.

[114] In all the circumstances I am satisfied that the amount of $31,618.34 is an appropriate amount of compensation. An order for the payment of compensation has been issued separately to this decision.

COMMISSIONER

Appearances:

Mr S Crawford of the HWU, for the Applicant

Mr M Rinaldi of counsel, for the Respondent

Hearing details:

18, 19 and 20 December 2018;

20 and 21 February 2019; and

26 June 2019.

Final written submissions:

Applicant’s Submissions in Reply dated 17 May 2019

Respondent’s Outline of Closing Submissions dated 13 May 2019

Printed by authority of the Commonwealth Government Printer

<PR711352>

 1   Transcript of 26 June 2019 PN240-241.

 2   Joint table of facts and issues agreed and in dispute, 12 April 2019 (“Joint Table”).

 3   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 4   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 5   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 6 Ibid.

 7   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].

 8 Ibid.

 9   [2013] FWCFB 619.

 10   Transcript PN47- PN189.

 11 Respondent’s Outline of Closing Submissions dated 13 May 2019 [8].

 12 Ibid.

 13 Respondent’s Outline of Submissions dated 4 December 2018 [21].

 14   Respondent’s Outline of Submissions on Policies Breached by the Applicant, dated 4 February 2019.

 15 Respondent’s Outline of Closing Submissions dated 13 May 2019 [11].

 16   Joint Table items 5, 13, 14.

 17   Transcript PN6016 - 6080.

 18   TB-9 to the Witness Statement of Terry Bailey dated 4 December 2018.

 19   Joint Table item 19.

 20   Joint Table item 18.

 21   Join Table item 22.

 22   Joint Table item 25.

 23   TB-9 to the Witness Statement of Terry Bailey dated 4 December 2018.

 24   Transcript of 26 June 2019 PN98 - 99.

 25   Joint Table item 44, Transcript of 26 June 2019 PN 94 - 97.

 26   Joint Table item 51.

 27   Joint Table item 35.

 28   Joint Table item 42.

 29   Joint Table item 47.

 30   Joint Table item 48.

 31   Joint Table item 54.

 32   Joint Table item 55.

 33   Joint Table item 56.

 34   Joint Table item 59.

 35   Joint Table item 62.

 36   Joint Table item 63.

 37   Joint Table item 64.

 38   Joint Table item 65.

 39   Respondent’s Outline of Submissions on Policies Breached by the Applicant, dated 4 February 2019.

 40 Applicant’s Closing Submissions dated 29 April 2019 [32].

 41 Applicant’s Closing Submissions dated 29 April 2019 [11].

 42   Joint Table item 65; Applicant’s Closing Submissions dated 29 April 2019 [44]

 43 Respondent’s Outline of Closing Submissions dated 13 May 2019 [11].

 44   Respondent’s Outline of Submissions dated 4 December 2018 [33]

 45   Joint Table item 64.

 46   Transcript PN3947-3974; 3988-3989; see also Transcript PN3067-3088.

 47   TB-11 to the Witness Statement of Terry Bailey dated 4 December 2018.

 48   Respondent’s Outline of Submissions on Policies Breached by the Applicant, dated 4 February 2019.

 49   Transcript PN3743.

 50   Transcript PN3489-3507.

 51   Transcript PN3746-3758.

 52   Transcript PN3508-3517.

 53 Transcript of 26 June 2019 PN261; see Respondent’s Outline of Closing Submissions dated 13 May 2019 [14].

 54   Applicant’s Outline of Submissions dated 5 November 2018 [35]; Transcript of 26 June 2019 PN299-300.

 55   Transcript PN658, 666, 670.

 56   Applicant’s Closing Submissions dated 29 April 2019 [111] and [114].

 57   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191at 41.

 58 Ibid.

 59 Applicant’s Closing Submissions dated 29 April 2019 [46].

 60   Joint Table item 24.

 61   Applicant’s Closing Submissions dated 29 April 2019 [121], [122].

 62 Transcript PN6665; Respondent’s Outline of Submissions dated 4 December 2018 [31].

 63 Print R0235, (1998) 88 IR 21.

 64   [2013] FWCFB 431; 229 IR 6.

 65   Smith v Moore Paragon Australia Ltd PR942856, [2004] AIRC 57; (2004) 130 IR 446 [32].

 66   [2015] FWCFB 873.

 67 Ibid, [27].

 68 Ibid.

 69   Joint Table item 11.

 70   TB-11 to the Witness Statement of Terry Bailey dated 4 December 2018.

 71 Applicant’s Closing Submissions dated 29 April 2019 [165].

 72   Witness Statement of Michael Scott on the Issue of Mitigation of Loss dated 13 December 2018.

 73   MS-12 to the Witness Statement of Michael Scott on the Issue of Mitigation of Loss dated 13 December 2018.

 74 Applicant’s Closing Submissions dated 29 April 2019 [155].

 75   [2017] FWCFB 429 at [43].