[2015] FWC 437 [Note: An appeal pursuant to s.604 (C2015/1417) was lodged against this decision - refer to Full Bench decision dated 31 march 2015 [[2015] FWCFB 2085] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamer Selcuk
v
Epworth Healthcare
(U2014/8741)

COMMISSIONER RYAN

MELBOURNE, 16 JANUARY 2015

Application for relief from unfair dismissal - compensation.

[1] This decision relates to an application filed on 12 August 2014 for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act) 2014 by Mr Selcuk following the termination of his employment by Epworth Healthcare.

[2] Mr Selcuk was dismissed from his employment with Epworth Healthcare on 24 July 2014 for serious misconduct. Epworth Healthcare contended that it had, after investigation, established that Mr Selcuk had “wilfully and deliberately behaved in a manner that is inconsistent with the continuation of your employment contact with” Epworth Healthcare.

[3] The application was dealt with at a hearing which ran for 6 days (17, 18 and 19 November 2014 and 3, 4 and 17 December 2014). At the hearing Mr Selcuk was represented by his lawyer, Mr Vasilaras and Epworth Healthcare was represented by its lawyer, Mr Addison. The Commission granted both parties permission to be represented by a paid agent or lawyer at the commencement of proceedings on 17 November 2014. At the hearing of the application evidence was given in support of Mr Selcuk’s case from himself and from Mr John Lauretta, formerly Manager of the Environmental Services Department at Epworth Healthcare until 2011. Evidence was given in support of Epworth Healthcare’s case from Ms Cate Morris, Senior HR Advisor, Mr Miguel Barros, Manager, Environmental Services Department, Ms Andrea Hunter, Hospitality Services Manager, Mr Simon Benedict, Human Resources Manager, Mr Qiaoyu (Bill) Lu, Environmental Services Associate and Ms Ilhan Hassan, Environmental Services Associate, all of whom are employed at Epworth Healthcare.

[4] Before the Commission can deal with the merits of an unfair dismissal application certain preliminary matters must be determined as required by s.396 of the Act. Each of these preliminary matters was determined during proceedings in transcript on 17 December 2014. 1

Background

[5] Mr Selcuk commenced employment with Epworth Healthcare in March 1994 as a cleaner and was promoted to the position of Supervisor in 1996 and he held the position of Environmental Services Supervisor on the afternoon shift until his dismissal on 24 July 2014.

[6] Mr Selcuk described his duties as follows:

“4. As Environmental Services Supervisor, my main duties involved:

a. supervising Patience Services Associates staff (approximately 25-30 staff) and directing them to clean the respondent’s wards and tenants’ offices;
b. supervising and directing cleaning of “Elim House”, “Lennox building”, the Respondent’s rehabilitative pool, Hoddle Street car park, orthopaedic suites, Slades’ pharmacy, Epworth pathology, Epworth physiotherapy department, Epworth’s allergic group, MRI department, anaesthetic services, Epworth Centre – doctors’ suites (approximately 20), “Bridge Road Towers”, “Erin Street Building”, “Leigh Place Building”, “Normanby Building”, ICU offices, Victorian Heart Centre and engineering offices;
c. organising staff rosters;
d. conducting OH&S training;
e. conducting emergency code training and anti-bullying;
f. conducting performance development plans with staff;
g. maintaining cleaning equipment; and
h. auditing staff jobs.

5. In or about October 2013, in addition to the above duties, my duties were broadened to include the supervision of cleaning of additional doctors’ suites in the Epworth Centre (approximately 20 additional suites), 7 additional wards, and the Respondent’s library located at 5 Leigh Place (including training rooms), paramedic’s department, founder’s room, medical foundation and main theatres.” 2

[7] Whilst Mr Selcuk described the group of employees he supervised as Patient Services Associates (PSA’s) most of his staff were in fact Environmental Services Associates (ESA’s). The Epworth Healthcare Health and Allied Services Enterprise Agreement 2014 (the Agreement), which applied to and covered both Mr Selcuk and his staff, contains definitions of both a PSA and an ESA as follows:

“Patient Services Associate (PSA) Grade 1 means an Employee who has successfully completed Epworth’s (or similar recognised) training course and who provides services to patients including: environmental services, food services, patient transport and lifting and assistance to nursing staff in patient care.

Environmental Services Assistant means a person appointed as such and employed in the Environmental Services Department on a range of duties including cleaning, collection of laundry, waste disposal, distribution of linen and associated duties as directed.”

[8] As can be seen both PSA’s and ESA’s do cleaning work.

[9] The allocation of PSA’s or ESA’s appeared to be at two levels. Some staff were specifically allocated to a ward or work area whilst others were available for allocation on a needs basis throughout the hospital. To manage the allocation of tasks to PSA’s or ESA’s on an “as needed” basis Epworth Healthcare utilised a system called “CARPS”. A description of CARPS, relevant as at 2011, was as follows:

“The CARPS process could be summarised as follows:

a. a task would be created by someone in the ward (anyone that has access to a computer can log a task);
b. the created task is read by the CARPS controller (whom at the time was Risheel Sidhu);
c. the Controller then allocates the task to an employee;
d. From thereon, a four step process follows:

i. the employee whom is allocated the task, receives the task on a handheld device;
ii. the employee clicks on the task, which, in turn, signals to the Controller that the task is “on route”;
iii. when the employee reaches the destination, he/she clicks on the handheld device, which signals to the Controller that they are “on the job”;
iv. the employee then performs that task and upon completion, the employee clicks on the task again, which signals to the Controller that the task is complete.” 3

[10] The description of CARPS was, with one correction, still relevant as at the date of dismissal of Mr Selcuk. 4

[11] It appears that a significant use of the CARPS system was to assist in patient transport.

[12] When ESA’s not being utilised to answer calls from the CARPS system the ESA would be allocated “project” cleaning work which appeared to be cleaning work that was regularly required to be done but not necessarily at specific times and which had a lower priority than cleaning or other tasks allocated by the CARPS system.

[13] The Environmental Services Department of Epworth Healthcare is part of the Hospitality Services of Epworth Healthcare which is managed by Ms Andrea Hunter. The Environmental Services Department is managed by Mr Miguel Barros. The functional structure of the Environmental Services Department is as follows:

“Environmental Services Department Manager
2 Day Shift Supervisors supervising 49 - 80 PSA/ESA,
1 Afternoon Shift Supervisor supervising 21 - 31 PSA/ESA,
1 Night Shift Supervisor supervising 15 - 18 PSA/ESA,
1 Weekend Supervisor supervising 41 PSA/ESA,
1 Theatres Team Leader supervising 8 - 13 PSA/ESA.” 5

[14] Mr Selcuk as the Afternoon Shift Supervisor was assisted by a CARPS Controller, Mr Risheel Sidhu.

[15] In late May or early June 2014 an ESA on the afternoon shift, Mr Lu, contacted Mr Barros, Manager, Environmental Services Department with a complaint over what Mr Lu considered to be unfair rostering, as well as making a number of allegations of misuse of the CARPS system.

[16] Mr Barros raised these issues with Ms Morris, Senior HR Advisor at Epworth Healthcare. Ms Morris advised Mr Barros to seek further information from Mr Lu and if possible get this in writing. Mr Barros was able to get Mr Lu to put his complaint in writing.

[17] Mr Barros, Ms Hunter, Manager Hospitality Services and Ms Morris met and Mr Barros provided details of the email from Mr Lu.

[18] On 1 July 2014 Ms Morris met with Mr Lu and Ms Hunter to gather further information from Mr Lu. Ms Morris took notes of that meeting and prepared a draft statutory declaration for Mr Lu to review. Mr Lu reviewed the draft statutory declaration and signed an amended version of the statutory declaration.

[19] Mr Lu identified another employee, Mr William Padua, as an employee who had knowledge of the unfair allocation of work. Ms Morris arranged for Ms Hunter, Ms Lupe Barros, one of the Day Shift Environmental Services Supervisors to interview Mr William Padua and they did so on 3 July 2014. Mr Padua also alleged unfair allocation of work on the afternoon shift.

[20] As a result of the allegations made by Mr Lu and Mr Padua Ms Morris advised the ‘Executive Team’ that several staff be stood down and the various allegations be investigated. On 15 and 16 July 2014 9 Environmental Services employees from the afternoon shift were stood down with pay, including Mr Selcuk and Mr Risheel Sidhu, the CARPS Controller on afternoon shift. Each employee was given a letter at the time of the stand down which gave the employee notice of the allegations made against them.

[21] The specific allegations made against Mr Selcuk were as follows:

“Specifically, it is alleged you actively and knowingly participate in the routine, repeated action of creating tasks in the CARPS Control system that are:
• false tasks or jobs;
• duplication of existing tasks; and
• create unnecessary tasks.

It is further alleged that the fore mentioned tasks:
• are not conducted, thus creating false data that is reported on
• have been previously conducted; and/or
• are not required to be conducted; and
that you are aware of this practice and that you encourage this practice.

It is also alleged that you are derelict in your duties as a Supervisor in the failure to hold staff on Afternoon Shift accountable to the actions required of them as employees of Epworth HealthCare. Specifically, it is alleged you knowingly allow the practice of an employee in your direction to routinely leave the hospital whilst wearing scrubs for extended meal breaks that are not recorded on the employee’s timesheet. Further allegations include that you direct employee’s that report to you to falsely create tasks; and that you have deliberately, wilfully and consistently, direct employees in the Patient Transport department to delay the transport patients from the Emergency Department.” 6

[22] The stood down staff were individually interviewed by Ms Morris and Mr Miguel Barros between 17 July 2014 and 21 July 2014. Each employee was entitled to have a support person at the interview.

[23] For two of the employees interviewed, Ms Ilhan Hassan and Mr Terrence Aarons, at the conclusion of the interview Ms Morris prepared statutory declarations for them to review and sign. Both employees signed the statutory declarations.

[24] At the conclusion of the interview process Epworth Healthcare concluded that serious misconduct had been engaged in by at least Mr Selcuk and Mr Sidhu and that misconduct had been engaged in by other employees and that some employees had not engaged in any misconduct.

[25] On 23 July 2014 Mr Selcuk received a telephone call from Mr Simon Benedict, Human Resources Manager requesting Mr Selcuk to attend a meeting on 24 July 2014. At the meeting on 24 July 2014 which was attended by Mr Selcuk, Mr Benedict, Mr Miguel Barros and Mr Brandon Howard, Business Operations Manager at Epworth Healthcare, Mr Selcuk had his employment terminated. A letter to Mr Selcuk formalising the termination was signed by Mr Howard on 25 July 2014. The letter of termination gave the following reason for the termination:

“As advised in detail yesterday, I have considered all of the information at hand regarding these allegations and the responses from yourself and conclude that in your Supervisory role at Epworth Healthcare that:

• there was inadequate supervision of staff by yourself allowing for inappropriate practices and/or fraudulent behaviour to occur, and that you were aware of and a part of some of these practices. This included but was not limited to:

staff regularly being away from work and/or leaving the hospital on paid time

false tasks or jobs being created on afternoon shift;

deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks permanent staff not being directed to work productively.

As confirmed yesterday this investigation is complete and that the outcome of this investigation has determined that you have wilfully and deliberately behaved in a manner that is inconsistent with the continuation of your employment contract with Epworth. I must therefore inform you that your employment with Epworth has been terminated effective 24 July 2014, and that you will be paid out any statutory entitlements owing to you.”

[26] Three employees were dismissed by Epworth Healthcare and they were Mr Selcuk, Mr Sidhu and Mr Aarons and one further employee, Mr Ting Nheu resigned before any action was taken against him.

Overview of the cases presented by either side

[27] It is neither necessary nor desirable to set out in detail the totality of the cases put by each side in this matter. The Commission has considered all of the evidence and all of the submissions made in this matter. The Commission has been assisted by the detailed concluding submissions made by the legal representatives of both sides.

[28] The essence of the case of Epworth Healthcare is that Mr Selcuk both knew of and participated in the use of the CARPS so as to create false work records which permitted some employees to be shown as being engaged in work when in fact the employee was not working and further that Mr Selcuk both knew of and participated in allowing employees to be absent from work when they should have been at work and further that Mr Selcuk created cleaning work that was either not authorised or not required to be done.

[29] The essence of the case for Mr Selcuk was that he did not know that Mr Sidhu was using CARPS to create false work records which permitted some employees to be shown as being engaged in work when in fact the employee was not working and that any work which Mr Selcuk had employees perform was cleaning work which needed to be done and finally that Mr Selcuk never authorised employees to be absent from their workplace when they should have been at work.

Deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks

[30] Detailed evidence was led by Epworth Healthcare through Mr Miguel Barros, Environmental Services Department Manager about both the nature of and the need for the cleaning tasks allocated by Mr Selcuk to ESA’s on the afternoon shift. Mr Barros’s evidence was that a number of tasks were not needed, that one task was not approved and that some tasks were needed but that the amount of time taken to do the task was excessive. Mr Selcuk was extensively cross examined by Epworth Healthcare on each of the cleaning tasks about which Mr Barros gave evidence. Mr Selcuk defended each cleaning task as being needed and being consistent with past practice. Mr Selcuk conceded that the time taken by some employees to do some of the tasks was excessive. Mr Selcuk and Mr Barros gave conflicting evidence as to the reasonable time that should be allocated to a number of the tasks.

[31] That there is significant conflict between the evidence of Mr Barros and the evidence of Mr Selcuk is merely stating the obvious.

[32] After the allegations of misconduct had been made by Mr Lu and as part of the investigation into those allegations, Mr Barros accessed the CARPS system to produce detailed reports in relation to a number of specific cleaning tasks. The reports were used to create a table which identified 12 specific cleaning tasks carried out by afternoon shift on weekdays for the period 1 May 2014 to 30 June 2014. The table identified each afternoon shift employee who had been allocated any of the 12 cleaning tasks through the CARPS system over that period and the time recorded by CARPS for the completion of the task. The table was exhibited as Exhibit R3.

[33] The Commission does not intend to present an analysis relating to each of the 12 tasks contained in Exhibit R3. Rather examination of a few specific tasks is sufficient.

[34] Exhibit R3 contained a column with the description Pathology (Buffing). Mr Selcuk gave detailed evidence about this particular task.

“PN366. That’s what Risheel says?---Mr Selcuk: No, what happens is the only jobs that project cleans, which Miguel knows about this, and he said in his statement he knows about, is at 7 o’clock, 7 pm, automatically I think Miguel done it. It generates jobs automatically, project cleans, for when CARPS is not busy the guys do those jobs, and I’ve got a monthly schedule where they’re not busy I’ll get them to buffer floors, scrub pathology or something like that. When it comes to transporting, I don’t log jobs, no.
...
PN531. Mr Selcuk: Sometimes I don’t think even he (Mr Barros) knows what we do in the afternoon, and that’s why he’s saying, “That’s duplication, that’s false task.” He’s saying pathology is false task buffing. I’ve been buffing that floor for maybe over ten years, and he’s saying it’s a false task now. That’s why I think, you know, it’s not a false task, I’ve been doing it for years. He should have come to afternoon shift and see what we do.
...
PN878. MR ADDISON: Well, you see, I put it - - -? Mr Selcuk--- That’s what I know and that’s what I’ve been doing for years, and I’ve got to -with all these ones here with DMU, back of cath lab, pathology, tea room and foyer, some of these come up at 7 o’clock automatically on the CARP system, and some of them I’ve got a project clean - a chart where I’ve ticked it and all these buffing pathology I’ve ticked it. It’s not a false task. I’ve been doing this for years and none of these are false tasks. - - -
...
PN882. Mr Addison: I want to show you a photograph. Do you know where that is, do you? It’s got it written up in the top right-hand corner?---Mr Selcuk: Yes, it’s pathology.
PN883. It’s pathology, that’s correct. Pathology is not part of the Epworth, is it, it’s a separate company?---It’s Epworth - I don’t understand this, but it used to be Melbourne Pathology. They changed the name to Epworth Pathology. I think it’s Epworth’s now, but I don’t know, you know.
PN884. I put it to you it’s not?---Okay. I didn’t know that, I’m sorry.
PN885. There’s a facilities contract between the Epworth Hospital and Epworth Pathology, isn’t there? You know that?---I haven’t seen the contract, sorry. I didn’t know there was a contract.
PN886. You didn’t know there was a contract?---No. I thought that Epworth - the places that Epworth own, there’s no - I know the tenants in the doctors’ suite’s got contracts, but - for example, (indistinct), it’s physio for the hospital. They haven’t got a contract, I know that.
PN887. I put it to you that you know - - -?---Pathology - - -
PN888. Sorry, go on?---No, you’re right.
PN889. I put it to you that you know there’s a contract and you’ve been told that buffing the pathology is not part of the contract?---No, that’s wrong, 100 per cent. I’ve been buffing that - not just buffing. We’ve got to understand this. It’s not just buffing the floor, what I got my guys to instruct, which Pat, the other guys, will tell you. What happens is if you look where this lady is, first of all what happens is there’s a lady Ann. She works in ICU. She comes to pathology to clean for two hours. She mops the floor with a normal mop, yes, and she dusts and she cleans, but where that lady is standing there’s blood fridges on top of that. Most likely Pat or any of CARP staff, when they’re not busy, they’ll get a ladder and they’ll clean on top of them fridges. Then when it comes to the floor we have to scrub this floor with a scrubber. Scrubber means there’s a brush, you put water down and you scrub the floor, because there’s a lot of blood on the floor. For Ann to mop it each day for 20 minutes with a normal mop that floor would be black, so all we need to do is we need to scrub it, then you will need to dry it. Once it’s dried we buff it. When you buff the floor it puts a bit of shine. What happens is if there’s any spill - it’s like polishing a car. If there’s any kind of spill on the floor when you buff the floor it’s easier to remove, which I’ve been doing this for years and years and it hasn’t been a problem, and I personally think if they stop buffing the floor at pathology they’re not doing the cleaning properly, because you need to scrub the floor. It’s a place where there’s blood and you need to scrub the floor. If you get infection control in they’ll say the same thing. Mopping the floor every day, it’s not enough for an area like this. You need to scrub it with water. A couple of people, a couple of the CARPS guys or my guys, they all get together, they’ll put wet signs up and they start scrubbing the floor. I’m very - when it comes to cleaning I’ve got as lot of experience, and for them saying this is a false job, you know, it’s ridiculous, because you need to scrub and buff a floor in a hospital where there’s blood involved, or any other central area where there’s visitors walking past. You can’t just mop the floor and leave it.

...

PN917. MR ADDISON: Tamer, notwithstanding your expertise in cleaning, I put it to you that buffing the pathology is not part of the contract between Epworth and Epworth Pathology. It is an unnecessary job and Epworth don’t get paid for doing it. You knew that, didn’t you?---Mr Selcuk: Sir, that’s ridiculous. That is wrong, what you are saying, because first of all I didn’t know that Epworth is not getting paid for it. I don’t know about that stuff, but what I know is you can’t just mop the floor, half an hour, 20 minutes, and leave it. You have to scrub the floor every once and a while and buff it so you maintain the floor, like a car, the paint job you maintain. The floor is the same thing. I’ve got a lot of experience in floors and cleaning and stripping and buffing and this is not a fake job. I’ve been doing it for years.
...

PN921. MR ADDISON: Mr Barros will give evidence that you knew?
---That’s fine.
PN922. Sorry?---If that’s what he’s going to do, that’s fine.
PN923. Mr Barros will say that you knew that Epworth did not get paid for buffing pathology floors?---No, I didn’t know that. We’re there to make sure everything is in control and making sure the place is clean. You know, what sort of - I don’t understand that. We need to clean the floor. It needs to be scrubbed and I didn’t know that Epworth doesn’t get paid. I’m not the (indistinct) I just - I’m there - you know, sometimes - you know what, I’ve myself scrubbed the floors of Epworth, you know, not just there, all the central areas, front of the toilets, front of the theatres. Theatres are most important because there’s a lot of - you don’t want germs to get into theatres. These areas are critical for infection control and we’ve been doing it for years.
...

PN1171. Sorry, go on?---Yes, if you see all these areas that you put me, these areas, dirty utilities, pathology floor, the central area where the theatres are, they’re all - like you’ve got to make sure they’re not contaminated so what I did was I made sure, instead of guys sitting around - and I asked for project clean on Miguel numerous times and he’s never given me project clean. He said that the day shift and the night shift hasn’t got one as well. I always wanted a project clean so these areas can get cleaned. You know, these areas that are infectious. So I’ve been concentrating on these areas but, when it comes to some of the times with the - you know, like the 100 and something minutes - I agree some of them did take longer than what they should but if I had any knowledge of these times I would have dealt with it which I didn’t know about but these jobs aren’t false jobs. I’ve been doing these for years. All this page is none of them are false. None of these jobs are false. I’ve been doing it for years.
…

PN1903. MR VASILARAS: Yes?---Mr Selcuk: Pathology is - where the Epworth Centre reception is there’s a big glass at the back so if you come through Epworth Centre you won’t see pathology much unless you do, like, a right and you will just see pathology there. When you walk in the door of pathology there’s about 10 or 12 chairs at the front of pathology when you enter it, then there’s a reception on the far left-hand corner. Then there’s a ramp that you climb up, sort of you walk up. Then if you turn left where the reception is there’s four areas with chairs where they take your blood, and at the far corner there’s a toilet. Then if you go out of there and go next to reception and walk down the corridor, and there’s a big opening with 10 to 15 machines. Then there’s fridges on the corridor on the right-hand side and at the end of the corridor there’s a kitchen, like a tea room, and there’s a male and female toilets with all lockers in them, and all the floor in pathology is vinyl. So to maintain that you need to - it gets mopped every day from Ann. She works in ICU then she comes down to clean pathology. What happens with Ann, she works from two till 10 so what she does is she finishes ICU at 8 o’clock. When she comes down she’s got roughly an hour and 15 minutes to clean pathology, and if - and where Lawrence was saying about they got a contract if - which I’m not a hundred per cent on this, but if you check the contract I guarantee you that Epworth’s not charging pathology hour and 15 minutes a day to clean it. They’re probably charging them three, four hours, right? Without that - because I did ask for extra hours for Ann to clean it. Anyway, so Ann does the cleaning. She does the mopping. I’ve got one of my staff members, her name is Linda O’Leary, she helps Ann. With that picture that Miguel had here with - in pathology it was, that picture here in pathology, if you see on the right-hand side they’ve got like fridges, and all these machines they’ve got all fans on them and what happens is it’s like a soft kind of dust in pathology. And what happens is all these fridges, on top of the fridges get really dusty and once a week we need to get a ladder and two guys do it. Because what happened was we got backpacks but I don’t want them to climb up the ladder with a backpack because they could fall, you know? So what I do I get one guy to hold the vacuum and the other guy to suck all the dust from the fridges. So thing - and Linda does that. Does help and dust because she’s got no time, and Pat Gentile, it’s one of my project works which I will have to show you later on that - how I done the graph - all my project works that I’ve been doing for years. So when it comes to the floor, Ann only mops the floor with soap, water, gives it a mop, puts the wet signs up and she doesn’t buff or she doesn’t scrub the floor. These pathology floors need scrub, like you know how - I don’t know how many times that Miguel said that we scrubbed it. I’m saying that I would - if it was me and I had more people I’ll scrub it more than what Miguel’s saying, and Miguel’s says to me, “You do not need to scrub floors”. You know, if you ask any experienced cleaner or infection control, they will say pathology - like, we’re talking a hospital. Pathology floors, they need to be scrubbed regularly. Regularly. Then when you scrub the floor as - you know, if you’ve got experience in cleaning, when you scrub a floor it goes dull on you. It just goes dull so what you need to do, you need to - so once you scrub you need to dry it, clean it, rinse water, rinse water, and there’s no cleaner’s cupboard in pathology. So you need to go out, get water, come back, you know. Once you do all the scrubbing then what you need to do is you’ve got to buff the floor. Why you buff the floor is when - could I stand up, is that all right?
PN1904. THE COMMISSIONER: No, just sit down, Mr Selcuk?---Sorry. So what happens is when you buff the floor as - with the cleaning thing, if you’ve got foot marks with your shoe and you make marks on the floor, when you buff the floor, when you come with the mop, the side of the mop, it’s easier to take the marks off because you’ve got a like a polish on the floor. It’s like doing your car. So maintaining the pathology floor - I’ve been doing it for years and years. When I seen these jobs saying they shouldn’t scrub the floor, like - - -
PN1905. THE COMMISSIONER: Okay, you’ve described both in your original evidence and - - -?---Yes.
PN1906. - THE COMMISSIONER: - - again now, you’ve described what you do for the cleaning of the floor?---Yes. I’ll just go - - -
PN1907. THE COMMISSIONER: But the issue that seems to have been put to you in cross-examination was that there was no requirement at all to do pathology?---Scrubbing the floors?
PN1908. THE COMMISSIONER: Yes?---But where did Miguel get his information from?
PN1909. THE COMMISSIONER: Okay, where do you get your information from?---I - I’ve been doing - - -
PN1910. THE COMMISSIONER: No, where do you get your information from that it was a requirement to do pathology floors?---Because I’ve been doing that for years and I’ve still been doing it before Miguel was even a manager or even a supervisor.
PN1911. THE COMMISSIONER: Okay, but - - -?---I’ve been doing this for ages - - -
PN1912. THE COMMISSIONER: But how do you know which floors to wash and which not to wash, and which to clean and what not to clean?---Because what happens is the - all the job descriptions I got what people do, I’ve got areas like ICU waiting area, the carpet. Once a month - - -
PN1913. THE COMMISSIONER: Okay, where’s the list? Who has got the list? Who controls the list?---What - we got a chart in - on the board that the places need to be done. You write it, and I’ve got one here - - -
PN1914. THE COMMISSIONER: No, no, don’t go to anything that hasn’t - - -?---Yes.
PN1915. - THE COMMISSIONER: - - been introduced into evidence?---Yes.
PN1916. THE COMMISSIONER: But where do you - who decides what has to be cleaned? Do you make up your own mind or does someone else?---No, no, what happens for these areas that I’ve been cleaning for a long time, obviously there was issues with pathology which I’ve discussed on my witness statement about they had issues with the floor.
PN1917. THE COMMISSIONER: Okay, but who makes the decision as to what part of the hospital gets cleaned?
---We do. Every - we’re all individual. It’s like night shift. She make - Daniella makes her decisions which theatres to clean and how to - what times she’s got to buff and mop the floor.
PN1918. THE COMMISSIONER: Okay, there’s - - -?---It’s a project clean.
...

PN1998. THE COMMISSIONER: I don’t want you to repeat what you’ve already said?---Mr Selcuk: Yes. You see, when you - when it comes to something like we were talking about pathology writes “buffing”, you know, did the guys scrub the floor as well, you know? Did they - you know, buffing you can’t - like, when it writes buffing there, someone took, you know, 21 minutes to buff, like, they have to mop the floor. The mop - the floor has to dry before they buff. They have to go get the mop from somewhere. There’s no cleaner’s cupboard. There’s - like, I understand there’s some - I did agree with Miguel that there’s some times here they’re like way out of whack, but did these guys stop what they’re doing and did another job? I don’t know. I haven’t got the reports to show that. But when it comes to these jobs, I’m 110 per cent that these jobs aren’t false tasks. I’ve been doing it for years and years. But when it comes to these times, there’s some that are out of content, you know, and I can’t explain that, what they were doing. That’s the truth, you know.”

[35] Mr Barros gave evidence about the cleaning of Pathology.

“PN5255. Mr Addison: Can I take you to the next one. The next pair of columns deals with pathology and buffing particularly of the pathology floor. Why have you inserted that into R3?
--Mr Barros:-Because I don’t know if this is an area that we have got a contract to clean the pathology area. It is basically third party Melbourne Pathology, which does not belong to the hospital. So, they pay us a fee for cleaning which we allocated two hours. In the contract there is no buffing, so if they require buffing you need request it and we charge them for that. So, again, there was never done before and suddenly both the troubles appear in the last two months. So, between May and June. So, once again, one 37 minutes is basically we are running a business as a loss because of that. So, there is no need to do it and we got allocated two hours one of the cleaners.
PN5256. The applicant was the afternoon shift supervisor?---Sorry, what was that?
PN5257. I said the applicant was the afternoon shift supervisor?---Absolutely.
PN5258. Did the applicant know that buffing wasn’t part of the pathology contract? (as per audio at 10.17.34)
---Yes, absolutely.
PN5259. He did?---Yes.

PN5309. THE COMMISSIONER: How many of these jobs that are listed – DMU, back of Cath lab, pathology buffing, EDT room, L3 foyer buffing, level 1 Normanby buffing, CARPS office, bistro walls and bistro steam clean, how many of those jobs appeared on the November report?---Mr Barros: I tell you, DMU no, back of Cath lab no, pathology no, EDT room yes, there was our office was near the tea room, so the guys the used to make a mess there. So, once we moved, I’m not sure. The foyer no, level 1 Normanby no, steam clean the bistro yes, so basically probably only 70 percent of the jobs.”

[36] The first issue which arises from the evidence of Mr Selcuk and Mr Barros is as follows:

Did Mr Selcuk know that Pathology was not part of Epworth Healthcare and that there was a specific cleaning contract in place with the tenant at Pathology which provided for 2 hours of cleaning per day and that any additional cleaning should not be done?

[37] The only evidence that Epworth Healthcare offers is the simple, clear and emphatic answer from Mr Barros to the 2 questions put to him by Mr Addison at PN5258 and PN5259. However in Mr Barros’s witness statement filed and served on 29 October 2014 Mr Barros had identified at paragraph 5 on page 3 that :

“Buffing Pathology - this is a service that Epworth is not contracted to provide to “Epworth Pathology”. It is important to note that Epworth Pathology is a trading name and not owned by the Epworth HealthCare Group.”

[38] Mr Selcuk was consistent and clear in his denial that he knew that Epworth Pathology was not part of Epworth Healthcare.

[39] Mr Selcuk was clear and consistent in his evidence that scrubbing and buffing the floor in Pathology had been a task that had been carried on for years.

[40] Mr Selcuk wanted to take the Commission to a chart listing the jobs to be done but the Commission prevented him from introducing this chart given that it did not form part of the material filed and served in this matter.

[41] The absence of any documentary evidence from Epworth Healthcare that Mr Selcuk knew that there was a contract with the tenant in Epworth Pathology and that Mr Selcuk knew that no extra cleaning was to be done in pathology is telling. Further while Mr Barros agreed with questions from Mr Addison that Mr Selcuk knew that “buffing wasn’t part of the pathology contract” no evidence was given by Mr Barros or any other witness for Epworth Healthcare to flesh out this proposition.

[42] The evidence and case put by Epworth Healthcare in relation to this aspect of the case is nothing more than inexact proofs, indefinite testimony, or indirect inferences.

[43] As Dixon J said in Briganshaw v Briganshaw:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.” 7

[44] Certainly in relation to this aspect of the present matter and applying the decision in Briganshaw v Briganshaw Epworth Healthcare has simply not satisfied the Commission on a balance of probabilities that the facts, which are necessary to support the allegation made against Mr Selcuk, exist.

Exhibit R3

[45] A second aspect of the case run by Epworth Healthcare needs to be carefully considered. The examination of the alleged unnecessary or unauthorised tasks proceeded at the hearing through the use of Exhibit R3. Both Mr Selcuk and Mr Barros were taken to Exhibit R3 by Mr Addison and questioned in relation to the nature of the work, whether the work needed to be done, whether the work was authorised and the particular amounts of time taken by individuals to perform the specific tasks.

[46] Exhibit R3 was created by Mr Barros from extracting data from three attachments to his own witness statement, Exhibit R23. The three attachments were CARPS reports generated by Mr Barros.

[47] Whilst much attention was paid to Exhibit R3 none was paid to the three CARPS reports which were attached to Exhibit R23. The evidence of Mr Barros needs to be carefully considered in light of the specific data in the CARPS reports attached to Exhibit R23.

[48] Exhibit R3 contains details of 12 separate tasks. The Commission will for the purpose of this decision only set out the Commission’s detailed consideration of three tasks, Pathology (Buffing), DMU and Level 1 Normanby (buff).

Pathology (Buffing)

[49] In relation to Pathology (Buffing) Exhibit R3 identifies that an employee named Roderick took 137 minutes, 87 minutes and 100 minutes to do the buffing of the pathology floors. Mr Barros gave evidence which shows that he accepts that 137 minutes was the time taken to perform the buffing of the pathology floor by Roderick. 8

[50] The reality is that Exhibit R3 creates a false picture in relation to the amount of time spent by Roderick in buffing Pathology. Exhibit R3 was created by Mr Barros 9 by extracting information from CARPS reports which were attached to the witness statement of Mr Barros, Exhibit R23. A careful examination of the attachments to Exhibit R23 cast real and substantial doubt on the figures in Exhibit R3 in relation to Pathology (Buffing) work performed by Roderick as well as by other employees.

[51] Exhibit R3 contains the following in relation to Pathology (Buffing):

PATHOLOGY (BUFFING)

NAME	TIME(mins)
Andy	26
Roderick	21
Ilhan	7
Roderick	137
Andy	17
Roderick	20
Roderick	87
Andy	8
Roderick	32
Roderick	100

[52] The attachments to Exhibit R23 contain the following relevant information:

Task	Details	Date	Time	Person	Pending	On Route	On Job	Response	Action	Total	Delays
319,100	Pls Buff pathology floors Thnx	23/05/14	20.51	Andy	0	20	5	21	26	26	0
319,104	Pls clean ceiling vents Thnx	23/05/14	20.56	Roderick	24	21	0	45	21	45	0
321,169	Dusting shelves, clean pathology	03/06/14	19.21	Ilhan	4	68	2	72	70	74	0
321,175	Clean dirty utility walls in 2ns	03/06/14	19.25	Ilhan	0	1	11	1	12	12	0
321,176	Clean dirty utility walls in 2ns	03/06/14	19.25	Ilhan	0	18	5	19	23	23	0
321,177	Clean dirty utility walls in 2ns	03/06/14	19.25	Ilhan	0	25	12	26	37	37	0
321,409	Pls buff floor outside carps office Thnx	04/06/14	19.10	Roderick	0	43	0	43	43	43	0
321,416	Pls buff floors in pathology. Pls call Tamer for details Thnx	04/06/14	19.25	Roderick	0	137	0	137	137	137	0
321,648	Buff pathology	05/06/14	20.01	Andy	0	12	5	12	17	17	0
321,868	Buffing of pathology	06/06/14	18.54	Roderick	0	20	0	20	20	21	0
321,871	Normanby lifts level 1 needs scrubbing and buffing	06/06/14	19.13	Roderick	0	75	78	75	153	153	0
322,768	Buff lifts in 1 ns	11/06/14	17.20	Roderick	5	26	34	31	60	65	0
322,769	Buff pathology	11/06/14	17.20	Roderick	5	26	61	31	87	92	0
322,770	Buff level 1 enviro	11/06/14	17.21	Roderick	4	26	34	31	60	65	0
322,694	Buff and mop level 3 vinyl floor	11/06/14	18.30	Roderick	78	29	20	107	49	127	0
324,369	Buffing pathology please	18/06/14	20.00	Andy	0	5	3	5	8	8	0
324,384	Buffing pathology please	18/06/14	21.00	Roderick	0	32	0	32	32	32	0
325,816	Buff and mop level 3 vinyl floor	25/06/14	18.30	Roderick	-2	34	69	32	104	102	0
325,903	Please buff level 1 normanby area	25/06/14	18.30	Roderick	2	100	0	102	100	102	0
325,905	Please buff level 2 pathology Epworth centre	25/06/14	18.32	Roderick	0	100	0	100	100	100	0

[53] The figures in Exhibit R3 appear to reflect the “Action” column on the CARPS reports which are attached to Exhibit R23.

[54] The Action column appears in most cases to be the total arrived at by adding the On Route figure to the On Job figure. Although this doesn’t work for the first entry for Andy!

[55] Whilst Exhibit R3 gives a time of 7 minutes to Ilhan the attachments to Exhibit R23 show that Ilhan only did one job at pathology and that was not buffing but rather “dusting shelves, clean pathology” and shows an Action time of 70 minutes.

[56] The first entry for Roderick on Exhibt R3 under Pathology (Buffing) relates to a cleaning task of cleaning the ceiling vents in Pathology and not to buffing.

[57] Whilst Exhibit R3 shows Roderick taking 137 minutes to do the task of buffing the floors in Pathology the CARPS reports which constitute the attachments to Exhibit R23 actually show that Roderick spent 137 minutes on route to the job but zero minutes on the job. There appears to be a manifest error in the CARPS reports. On the evening of 4 June 2014 two jobs were allocated through CARPS to Roderick - one at 19.10pm and the second at 19.25pm. In the case of both jobs Roderick spent exactly 3 hours on route to the jobs but didn’t spend any time on the job.

[58] Similarly, on the evening of 11 June 2014 three jobs were allocated through CARPS to Roderick - two were allocated at 17.20 and the third was allocated at 17.21. Roderick completed each of the three jobs but in doing so he is recorded as having spent 1 hour 18 minutes on route to the jobs and 2 hours 9 minutes on the jobs. It seems implausible that Roderick would have spent 26 minutes on route to each job. This is especially so given that 2 of the jobs were on level 1.

[59] The CARPS report also shows that Roderick was allocated another job on 11 June 2014 at 18.30. This particular job was the subject of a specific allegation put to Roderick during the investigation and part of the conduct of Roderick that was recorded on CCTV footage as part of Attachment CM6 to Exhibit R13. The allegation put to Roderick at an interview with Mr Simon Benedict, Mr Miguel Barros and a representative from HSUA on 18 August 2014 was as follows:

“We have camera video showing taking the machine to level 3, parking the machine and then returning 1 hour later and complete the job in 10 minutes. What did you do in between.

Response:
Hard to say, because they are busy in Carps they instructed (R or T) to leave the job and help in Carps and they don’t pause the task so it seems that I spent an hour doing the floor but I was doing another job in between.” 10

[60] The CARPS report shows that at 6.30pm when Roderick parked a buffing machine on level 3 he was still performing work on the three jobs allocated to him at 5.30pm.

[61] The CARPS report clearly shows that the job allocated at 6.30pm had a “Pending” time of 78 minutes before the job was started. At least on this point it would appear that the CARPS report and the CCTV footage are consistent.

[62] Similarly, on the evening of 25 June 2014 three jobs were allocated through CARPS to Roderick - two were allocated at 18.30 and the third was allocated at 18.32. Roderick took 34 minutes on route to the first job and he spent 69 minutes on the job. For each of the next two jobs Roderick spent 1 hour 40 minutes on route to each job and zero minutes on each job. For the three jobs Roderick is recorded as having spent 3 hours 54 minutes on route to the jobs and 1 hour 9 minutes on the jobs. Starting his travels at 6.30pm the CARPS records would have Roderick not finishing his travels and one job until 3 minutes past midnight - apparently well after his normal finish time! The times attributed to Roderick on the CARPS report seem totally implausible.

[63] The detailed analysis of the CARPS reports attached to Exhibit R23 is important because it was Mr Barros who introduced the CARPS reports into evidence through his witness statement, Exhibit R23. Further it is Mr Barros who was presented to the Commission by Epworth Healthcare as being the expert on the CARPS system. 11

[64] The detailed analysis of the CARPS reports which form part of Exhibit R23 lead to the conclusion that the evidence of Mr Barros should not be accepted. The evidence of Mr Barros at PN5255 is clearly unbelievable. It is simply not credible to imply that there was an occasion where Roderick spent 137 minutes on buffing the floors in pathology.

[65] Given Mr Barros’s expert knowledge of the CARPS system it should be obvious that extracting single time figures out of the CARPS reports without identifying the context in which those figures were created is highly misleading.

[66] The Commission’s own examination of the CARPS reports attached to Exhibit R23 very strongly suggest that Roderick wasn’t using his CARPS android device correctly when entering the respective times needed by the CARPS system.

[67] An example which has nothing to do with Pathology (Buffing) adequately shows this.

[68] The CARPS reports attached to Exhibit R23 contain the following:

Task	Details	Date	Time	Person	Pending	On Route	On Job	Response	Action	Total	Delays
321,638	Level 9 bridge rd tower buffing	05/06/14	19.04	Roderick	1	17	94	18	111	112	0
321,639	Level 8 bridge rd tower buffing	05/06/14	19.04	Roderick	1	113	0	113	113	113	0
321,640	Level 7 bridge rd tower buffing	05/06/14	19.04	Roderick	1	112	0	113	112	113	0
321,641	Level 6 bridge rd tower buffing	05/06/14	19.04	Roderick	1	112	0	113	112	113	0
321,642	Level 5 bridge rd tower buffing	05/06/14	19.04	Roderick	1	112	0	112	112	112	0
321,643	Level 4 bridge rd tower buffing	05/06/14	19.04	Roderick	1	111	0	112	111	112	0

[69] If the approach adopted by Mr Barros at PN5255 and the approach adopted by Mr Barros in preparing and submitting Exhibit R3 was applied to the above tasks then Roderick took just over 1 hour 50 minutes to buff each floor of the Bridge Rd tower. A total of over 11 hours work!

[70] A more realistic proposition might suggest that all 6 tasks were being treated by Roderick as one job and that Roderick spent a total of 112 or 113 minutes doing all 6 floors. However this is not what the CARPS report shows.

[71] Where both Mr Barros and Mr Selcuk gave evidence in relation to cleaning work done in Pathology which was additional to the 2 hours allocated to a specific ESA I prefer the evidence of Mr Selcuk.

DMU

[72] The first task on Exhibit R3 is named DMU. Mr Barros described this column as follows:

“PN5243. Mr Addison: Now, I have taken the applicant through this document with regards to the various jobs. Can you tell the Commissioner starting from page R3, there is a column with DMU on the top?---Mr Barros: Sure.
PN5244. That records a number of jobs. Can you tell the Commissioner what DMU says to you in relation to the allegations that have been made?---DMU is an area which standing for day medical unit. DMU, it opens every day, but its cleaned at night. So, those jobs, they shouldn’t be done by the afternoon shift. The DMU requires cleaning in the afternoon only when its opened the 23 hours they call it, which is the excess part of patient from emergency department, so they are using that area. And because they are spending overnight, it’s fair to clean at 7 o’clock, yes. During those times, it wasn’t opened at all. So, basically that was the only time that it requires cleaning. So, all the cleaning is done by a person which is expensive and point 6 hours cleaning the room and the cleaning is when there is no-one around, so it’s easier to clean it and that’s why we decide that.
PN5245. So, what do you say that the log of jobs represent?---Represents a waste of time. To me they weren’t done at all. There is no need to do those jobs. Especially with some of them, they’re like 68 minutes, and 79 minutes. And again, some like with Bill, eight minutes.”

[73] Given that Exhibit R3 represents information extracted from the CARPS reports attached to Exhibit R23 is it relevant to consider what those CARPS reports show in relation to what is shown in Exhibit R3.

[74] The column titled DMU in Exhibit R3 contains the following:

DMU

Name	Time (mins)
Bakari	79
Brenton	30
Christian	16
Bill	18
Sebastian	20
Andy	29
Ting	40
Ting	52
Andy	33
Brenton	16
Roy	39
Brenton	13
Shu	23
Brenton	17
Brenton	13
Bill	18
Andy	26
Christian	20
Bill	21
Andy	26
Christian	20
Bill	21
Christian	75
Bakari	23
Bill	8
Bill	30
Bill	11
Terry	9
Ting	38
Ting	31
Terry	34
Rolando	14
Bill	15
Ilhan	6
Ilhan	62
Ilhan	68
Terry	2
Terry	27
Brenton	21
Ting	32
Ting	41
Brenton	15
Total hrs	18
Total no. jobs	39
EFT	2.4

[75] Relevantly the CARPS reports attached to Exhibit R23 show the following:

Task	Details	Date	Time	Person	Pending	On Route	On Job	Response	Action	Total	Delays
314,657	General Clean in DMU, Collect rubbish and mop	01/05/14	16.43	Bakari	0	10	69	10	79	79	0
314,884	General Clean in DMU, Collect rubbish and mop, moved beds and only did a light clean up	2/5/14	19.00	Brenton	10	12	18	22	30	40	0
315,375	General Clean in DMU, Collect rubbish and mop	5/5/14	1900	Christian	-3	16	0	13	16	13	0
315,645	General Clean in DMU, Collect rubbish and mop	6/5/14	1900	Bill	7	3	15	10	18	25	0
316,066	General Clean in DMU, Collect rubbish and mop	8/5/14	1900	Sebastian	11	6	14	17	20	30	0
316,289	General Clean in DMU, Collect rubbish and mop	9/5/14	1900	Andy	7	23	6	31	29	37	0
316,749	General Clean in DMU, Collect rubbish and mop	12/5/14	18:47	Ting	0	11	29	11	40	40	0
316,975	General Clean in DMU, Collect rubbish and mop	13/5/14	18:23	Ting	1	6	46	7	52	53	0
317,212	General Clean in DMU, Collect rubbish and mop	14/5/14	1900	Andy	-12	12	21	0	33	21	0
318,354	General Clean in DMU, Collect rubbish and mop	20/5/14	19:00	Shu	57	7	16	65	23	81	0
318,575	General Clean in DMU, Collect rubbish and mop	21/5/14	1900	Brenton	-3	6	12	3	17	15	0
318,778	General Clean in DMU, Collect rubbish and mop	22/5/14	1900	Brenton	-56	4	9	-52	13	-44	0
319,006	General Clean in DMU, Collect rubbish and mop	235/14	1739	Bill	17	5	14	22	18	35	0
319,459	General Clean in DMU, Collect rubbish and mop	26/5/14	1900	Andy	-10	22	4	12	26	16	0
319,697	General Clean in DMU, Collect rubbish and mop	27/5/14	1900	Christian	-3	1	20	-2	20	18	0
319,911	General Clean in DMU, Collect rubbish and mop	28/5/14	1900	Bill	3	5	15	8	21	24	0
320,098	General Clean in DMU, Collect rubbish and mop. Delay: urgent ICU transfer required	29/5/14	1900	Christian	-74	5	70	-69	75	1	0
320,384	Make beds	30/5/14	1519	Bakari	34	23	0	57	23	57	0
320,348	General Clean in DMU, Collect rubbish and mop	30/5/14	1900	Bill	-1	3	5	2	8	7	0
320,858	General Clean in DMU, Collect rubbish and mop	2/6/14	1900	Bill	10	14	16	24	30	40	0
321,057	General clean up back of cath lab, Collect rubbish and mop	3/6/14	1900	Bill	1	4	7	5	11	12	0
321,058	General Clean in DMU, Collect rubbish and mop	3/6/14	1900	Terry	17	9	0	26	9	26	0
321,317	General Clean in DMU, Collect rubbish and mop	4/6/14	16:53	Ting	0	3	35	3	38	38	0
321,387	General Clean in DMU, Collect rubbish and mop	4/6/14	18:43	Ting	0	13	28	3	31	31	0
321,550	General Clean in DMU, Collect rubbish and mop	5/6/14	17:56	Terry A	0	19	15	20	34	34	0
321,781	General Clean in DMU, Collect rubbish and mop	6/6/14	19:00	Rolando	3	1	13	5	14	18	0
322,408	General clean up back of cath lab, Collect rubbish and mop	10/6/14	19:00	Bill	-5	3	12	-2	15	11	0
322,409	General Clean in DMU, Collect rubbish and mop	10/6/14	19:00	Ilhan	-14	6	0	-7	6	-7	0
322,692	General Clean in DMU, Collect rubbish and mop	11/6/14	19:00	Ilhan	33	10	53	43	62	96	0
322,977	General Clean in DMU, Collect rubbish and mop	12/6/14	19:00	Ilhan	-14	3	66	-12	68	54	0
323,251	General Clean in DMU, Collect rubbish and mop	13/6/14	19:00	Terry A	-14	0	1	-13	2	-12	0
323,734	General Clean in DMU, Collect rubbish and mop	16/6/14	19:00	Shu	-14	7	8	-7	16	2	0
324,516	General clean back of cath lab, Collect rubbish and mop	19/6/14	18:38	Terry	0	19	8	19	27	27	0
324,517	General Clean in DMU, Collect rubbish and mop	19/6/14	19:00	Brenton	-14	9	12	-5	21	6	0
325,554	General Clean in DMU, Collect rubbish and mop	24/6/14	19:00	Ting	6	2	30	8	32	38	0
325,814	General Clean in DMU, Collect rubbish and mop	25/6/14	19:00	Ting	0	3	38	3	41	41	0
326,089	General Clean in DMU, Collect rubbish and mop. No longer required,	26/6/14	19:00	Brenton	21	9	6	0	15	36	0

[76] The comparison between the CARPS reports attached to Exhibit R23 and Exhibit R3 lead to a number of observations.

[77] Firstly, five entries on Exhibit R3 do not relate to cleaning in DMU but rather four relate to cleaning the back of the Cath Lab, Tasks 321,057, 321,781, 322,408 and 324,516 and one relates to making beds in DMU, Task 320,384.

[78] Secondly, one entry on the CARPS report which clearly identifies work done in cleaning DMU was not included in Exhibit R3, Task 323,734.

[79] Thirdly, Mr Barros’s evidence at PN5245 which implies that the amount of time recorded on Exhibit R3 represents the amount of time taken to do the job is clearly not correct. Mr Barros referred to 3 specific times 68 minutes, 79 minutes and 8 minutes. Only in relation to the 8 minutes did Mr Barros identify a specific individual, Bill. However it is reasonably obvious that there is only one time of 79 minutes and only one time of 68 minutes and only one time of 8 minutes on Exhibit R3 and these relate respectively to Task 314,657 - Bakari, Task 322,977 - Ilhan and Task 320,348 - Bill. The CARPS report show that the time spent on the job in relation to each of three tasks were respectively 69 minutes, 66 minutes and 5 minutes. The discrepancies with these three times is minor. However, for many of the jobs there were significant periods of “On Route” time and the actual “On Job” time is much lower than the time shown on Exhibit R3, including three entries which show zero time spent “On Job”.

[80] Fourthly, the second highest time spent on cleaning DMU according to Exhibit R3 was by Christian who spent 75 minutes. However the CARPS reports clearly show that this job was delayed due to an “urgent ICU transfer required”. Further in relation to this task (Task 320,098) it would appear that the job was pending for minus 74 minutes. How a job can be pending for a negative period of time was not explained to the Commission. Further no explanation was given as to the relevance of the “Delay” noted for this task.

[81] Fifthly, the CARPS report identifies that Ting performed two separate cleans of DMU within a two hour period on 4 June 2014. The “On Job” time for each clean was respectively, 35 minutes and 28 minutes. A Mr Ting Nheu was identified by Mr Qiaoyu (Bill) Lu at paragraph 13 of his statutory declaration at Attachment CM4 to Exhibit R13 as being part of the group of employees who took unauthorised breaks from work to go outside and smoke. A Mr Tsiung Nheu was identified by Ms Morris at paragraph 24 of Exhibit R13 as one of the employees stood down and Mr Ting Nheu was identified at PN43 as having resigned from Epworth Healthcare.

[82] Sixthly, Mr Barros’s evidence was that “it’s fair to clean (DMU) at 7 o’clock” (PN5244). Of the 33 tasks identified on the CARPS reports attached to Exhibit R23 as being cleaning of DMU 26 were allocated at 19.00 (7pm). Thus according to Mr Barros these 26 tasks were OK.

[83] Seventhly, if Exhibit R3 is corrected in relation to DMU by removing the tasks which were not cleaning DMU and removing the tasks which were cleaning DMU but allocated at 19.00 the list is reduced to the following tasks:

Task	Details	Date	Time	Person	Pending	On Route	On Job	Response	Action	Total	Delays
314,657	General Clean in DMU, Collect rubbish and mop	01/05/14	16.43	Bakari	0	10	69	10	79	79	0
316,749	General Clean in DMU, Collect rubbish and mop	12/5/14	18:47	Ting	0	11	29	11	40	40	0
316,975	General Clean in DMU, Collect rubbish and mop	13/5/14	18:23	Ting	1	6	46	7	52	53	0
319,006	General Clean in DMU, Collect rubbish and mop	23/5/14	17.39	Bill	17	5	14	22	18	35	0
321,317	General Clean in DMU, Collect rubbish and mop	4/6/14	16:53	Ting	0	3	35	3	38	38	0
321,387	General Clean in DMU, Collect rubbish and mop	4/6/14	18:43	Ting	0	13	28	3	31	31	0
321,550	General Clean in DMU, Collect rubbish and mop	5/6/14	17:56	Terry A	0	19	15	20	34	34	0

Level 1 Normanby (buff)

[84] Another task which is identified on Exhibit R3 is “Level 1 Normanby (buff) which is shown as follows:

Level 1 Normanby (buff)

NAME	TIME (mins)
Roderick	49
Andy	42
Andy	41
Andy	38
Andy	23
Roderick	43
Roderick	57
Roderick	153
Roderick	74
Roderick	60
Roderick	60
Roderick	32
Roderick	32
Roderick	25
Roderick	100
Roderick	43

[85] Mr Barros gave evidence as to what these figures showed:

“PN5289. Mr Addison: Then you have extracted under the two columns, the lift at level 1 Normanby buff. A number of entries. Can you tell the Commissioner why you have entered those entries?---Mr Barros: Because this is the first job I was surprised to see when allegations came to me because normally someone would buff the floor 15, 14 times in two months, which it was never done before. Probably buffed the floor once every two months. We have only buffed the floor once since July and it looks exactly the same. And then the times dedicated to do is even if we buff it every day, it wouldn’t take more than 20 minutes. And if you scrub once and a while it will take an hour, about one 53 minutes, 49, every time, 60, 60 the same people. To me it shows again click, buff five minutes, then go. They were never there in reports around before, so there’s new jobs to the most trade, you know, to increase the numbers. So, basically pretty much in consistency with the allegations of ambitions made sure we increase the numbers, so when I look at the numbers they look busier, that’s all.”

[86] Mr Barros was very clear in attributing a reason for these entries - “To me it shows again click, buff five minutes, then go”.

[87] Mr Barros’s understanding of the data in relation to Level 1 Normanby (buff) was that jobs were allocated but that the time taken to do the jobs was about 5 minutes and the rest of the time was a false claim of time worked.

[88] Once again, because Exhibit R3 is nothing more than a representation of information in the CARPS reports attached to Exhibit R23, it is necessary to examine what the CARPS reports show.

Task	Details	Date	Time	Person	Pending	On Route	On Job	Response	Action	Total	Delays
317,308	Buff level 1 enviro	14/05/14	19.46	Roderick	24	49	0	72	49	72	0
317,313	Buff level 1 enviro	14/05/14	19.46	Andy	28	42	0	70	42	70	0
319,072	Pls buff level 1 carps	23/05/14	17.30	Andy	1	37	0	38	38	39	0
319,073	Pls mop level 3 op lifts @ theatres	23/05/14	17.31	Andy	1	44	3	45	47	47	0
319,086	Pls clean & wipe down lift doors & walls Thnx	23/05/14	19.24	Andy	0	23	0	24	23	24	0
321,409	Pls buff floor outside carps office Thnx	04/06/14	19.10	Roderick	0	43	0	43	43	43	0
321,416	Pls buff floors in pathology. Pls call Tamer for details Thnx	04/06/14	19.25	Roderick	0	137	0	137	137	137	0
321,862	Buff level 1 enviro	06/06/14	18.19	Roderick	0	35	21	35	56	56	0
321,868	Buffing of pathology	06/06/14	18.54	Roderick	0	20	0	20	20	21	0
321,781	General clean back of cath lab, Collect rubbish and mop	06/06/14	19.00	Rolando	3	1	13	5	14	18	0
321,871	Normanby lifts level 1 needs scrubbing and buffing	06/06/14	19.13	Roderick	0	75	78	75	153	153	0
321,872	Normanby lifts level 1 needs scrubbing and buffing	06/06/14	19.13	Rolando	0	13	61	14	74	75	0
322,768	Buff lifts in 1ns	11/06/14	17.20	Roderick	5	26	34	31	60	65	0
322,769	Buff pathology	11/06/14	17.20	Roderick	5	26	61	31	87	92	0
322,770	Buff level 1 enviro	11/06/14	17.21	Roderick	4	26	34	31	60	65	0
324,371	Please buffing level 1 normanby vynil	18/06/14	20.06	Roderick	1	21	10	22	32	32	0
324,605	Level 1 enviro buffing	19/06/14	19.36	Roderick	0	24	0	24	24	25	0
325,816	Buff and mop level 3 vinyl floor	25/06/14	18.30	Roderick	-2	34	69	32	104	102	0
325,903	Please buff level 1 normanby area	25/06/14	18.30	Roderick	2	100	0	102	100	102	0
325,905	Please buff level 2 pathology Epworth centre	25/06/14	18.32	Roderick	0	100	0	100	100	100	0
326,352	Buff and mop level 3 vinyl floor	27/06/14	18.30	Roderick	44	17	26	62	43	87	0

[89] Mr Barros’s very clear attribution of a reason for these entries - “To me it shows again click, buff five minutes, then go” seems too simplistic.

[90] A number of observations need to be made in relation to the data contained in the CARPS report.

[91] Firstly, the first two entries on Exhibit R3 relate to the same job being allocated to two separate individuals at the same time and with both of them ostensibly performing the same task at the same time. Suggesting, as Mr Barros does, that this represents “click, buff five minutes, then go” would appear to be an inappropriately generous interpretation of the data. More realistically it would appear that one or both of the employees was recording work which was not done!

[92] Secondly, on 23 May 2014 one task (Task 319,072) is for buffing level 1 carps but the task is allocated to Andy at 17.30 and at 17.31 a second task is allocated to Andy to mop level 3 lifts at theatres. The CARPS report shows that Andy spent zero time “On Job” for the first task and 3 minutes “On Job” for the second task. Even Mr Barros’s assessment of “click, buff five minutes, then go” has not been met on the first task! The 38 minutes which is recorded in Exhibit R3 for the first task is actually made up of “On Route” time.

[93] Thirdly, on 4 June 2014 one task (Task 321,409) is for buffing floor outside carps office and the task is allocated to Roderick at 19.10 and at 19.25 a second task is allocated to Roderick to buff the floors at pathology. The fact that the CARPS report records zero time “On Job” for either task strongly suggests that the first task was not as Mr Barros suggests “click, buff five minutes, then go”.

[94] Fourthly, on 6 June 2014, two tasks were allocated to Roderick at 17.20 and 17.21 respectively being Task 322,768 - buff lifts in 1 ns and Task 322,770 - buff level 1 enviro. Additionally at 17.20 Roderick was allocated a third task of buff pathology. As discussed earlier in relation to Pathology (Buffing) there is real doubt as to the accuracy of the data in the CARPS reports and consequentially real doubt as to whether any or all of these jobs were actually completed.

[95] Fifthly, the three entries for 11 June 2014 have questions around them and I note the discussion about these tasks which is at [32] above in relation to buffing pathology.

[96] Sixthly, the entries for 25 June 2014 at 18.30 and 18.32 raise similar issues and doubts as discussed in the fourth point.

[97] Seventhly, the preponderance of tasks allocated to Roderick under this area of activity does, in light of the above observations, suggest that a more serious view should have been taken in relation to the data than merely saying as Mr Barros does that the data represents “click, buff five minutes, then go”.

Conclusion in relation to Exhibit R3 and Mr Barros’s evidence

[98] Bearing in mind that Mr Barros is put forward as an expert in the CARPS system used by Epworth Healthcare it is surprising that Exhibit R3 so poorly reflects the data contained in the CARPS reports on which it is based. It is also surprising that the evidence of an expert on the CARPS system is so poor in relation to analysing the data on the CARPS reports.

[99] However, if Mr Barros is an expert on the CARPS system then Mr Selcuk, who is not an expert on the CARPS system, should be expected to have an even lesser understanding of the CARPS system and the data on CARPS.

[100] Mr Barros describes the misuse of the CARPS system as follows:

“PN5705. Mr Vasilaris: You weren’t aware of the allegations until Mr Lu complained to you, is that correct?---Mr Barros: That’s correct..
PN5706. So, you ought to have known about the CARPS allegations as well?---What do you mean? I don’t understand.
PN5707. Well, you ought to have known about it. You were the manager. You are in a position of trust and confidence as well?---Yes, but if I need to, you know, this happens because there was a very sophisticated way of doing things.
PN5708. So, you do admit so it was quite sophisticated? Quite an elaborate scheme (indistinct), wasn’t it?---I am not saying (indistinct) is also sophisticated. Employees Risheel - - -
PN5709. It was quite complicated?---It was complicated. Risheel has got a lot of to do with this, absolutely. I don’t say that is not. But it is very sophisticated. I can’t - if I got a supervisor, you know, I don’t work in the afternoons, I can’t be everywhere.”

[101] To describe the misuse of the CARPS system as “complicated” or “sophisticated” may very well reflect Mr Barros’s poor understanding of the data in the CARPS reports attached to Exhibit R23 but it would appear from the raw data in the CARPS reports that the misuse of the CARPS system was both crude and unsophisticated.

[102] Allocating the same job to two separate employees at the same time is neither sophisticated nor is it complicated. Allocating multiple jobs to one employee at the same time is neither sophisticated nor is it complicated. Both of these allocations stand out as clear anomalies on the CARPS report and would draw the attention of any reasonable reader of the CARPS reports.

[103] The Commission is asked by Epworth Healthcare to accept the evidence of Mr Barros but it cannot. The evidence of Mr Barros is not credible nor does his evidence accord with the data on the CARPS reports on which Epworth Healthcare relies.

The November CARPS Reports

[104] As earlier identified at [32] above, Mr Barros gave evidence at PN5309 that he produced a set of CARPS reports for November 2013 which he used to compare with the CARPS reports attached to Exhibit R23.

[105] It is relevant to any consideration of Mr Barros’s evidence and of the case being run by Epworth Healthcare that the November CARPS report was never mentioned by Mr Barros in his witness statement and nothing was put to Mr Selcuk about these jobs not being done in November 2013, and that the November report was not produced at any time.

The evidence of Ms Hassan and Mr Lu

[106] Epworth Healthcare introduced through the witness statement of Ms Cate Morris two statutory declarations signed by two employees who were interviewed as part of the investigation, Ms Hassan and Mr Lu. In each case the statutory declarations were prepared by Ms Morris from her contemporaneous notes of the interviews with the two employees and presented to the employees for their review before the employee signed the statutory declaration. Mr Lu reviewed and amended the draft statutory declaration and signed the amended statutory declaration. Ms Hassan signed the statutory declaration as drafted by Ms Morris. The statutory declarations contained statements which amounted to direct evidence from those employees concerning the misconduct of Mr Selcuk.

[107] The Statutory Declaration of Mr Lu was not separately exhibited but is attachment CM4 to Exhibit R13, the witness statement of Ms Cate Morris.

[108] Mr Lu gave oral evidence to the Commission. Mr Lu’s evidence is quite strong in relation to the misconduct of Mr Rasheel Sidhu, the CARPS Controller on afternoon shift. Mr Lu’s evidence is equally as strong in relation to the absence of misconduct by Mr Selcuk in relation to creating false tasks. However, Mr Lu’s evidence is that Mr Selcuk knew that Mr Sidhu left work to buy food for other employees.

[109] The Statutory Declaration of Ms Hassan was not separately exhibited but is the last four pages of Attachment CM16 to Exhibit R13.

[110] The Statutory Declaration of Ms Hassan contains four specific allegations against Mr Selcuk. They are as follows:

“1. Mr Selcuk knows that two employees will leave work for between 40 minutes to 1 hour to buy food for other employees including Mr Selcuk. Mr Sidhu calls Mr Selcuk when Mr Sidhu is leaving work to buy food for others.

2. Mr Selcuk was part of a group of employees in the office who were not working and who hid from sight when Ms Hunter, Hospitality Services Manager passed the office.

3. Mr Selcuk is part of a group of employees who go outside during work hours to smoke.

4. Mr Selcuk has instructed Ms Hassan to click off a task even when the task has not been completed.”

[111] Ms Hassan gave oral evidence to the Commission. Ms Hassan was not cross examined in relation to either item 1 or 2 above and she was cross-examined and re-examined in relation to both items 3 and 4 above.

[112] In relation to Mr Selcuk being part of the smoking group and leaving the workplace with the smoking group Ms Hassan gave very clear evidence that Mr Selcuk was both part of the smoking group and that Mr Selcuk left the workplace with the smoking group.

“PN3870. Other witnesses, Ms Hassan, have identified Risheel’s group as the same people, but none of them mentioned Tamer Selcuk as the group?---Tamer will come as well, because I will be the controller and where they used to go off in the office and the smoking area will be like next to each other, like you just walk across and get out of the (indistinct) so I see - pretty much it would be like every day will be like a different group, like whoever that’s there, we’ve got, so this is the regular group that I saw.

PN3873. I put it to you that Tamer is not part of Risheel’s smoke group?---Sorry, sir, I’m just saying what I’ve witnessed, I’m not making up stories.

PN3874. THE COMMISSIONER: Have you seen this group go for smokes?---Yes.

PN3875. How often?---Regular to be honest, because we were all - - -

PN3876. “Regular” can be once a year or once a day?---No, regular would be like three to four times a week, for me that’s what I call regular.

PN3877. You have seen that?---I have seen that, because all - - -

PN3878. You have seen Mr Selcuk go out with other people named at paragraph 25 for a group smoke?---Yes.”

[113] In relation to Mr Selcuk giving Ms Hassan instructions to click off on a job that was not complete Ms Hassan confirmed that this happened but she put it into context as follows:

”PN4012--Ms Hassan: -Actually I would like to explain myself in question 28, which he asked me around clicking off jobs when not finished because of my - I went to Tamer complaining about my back pain and all that stuff. When I have been put onto the afternoon shift I told them I was pregnant, therefore, with Miguel and Tamer being the supervisor, I have told them, they have said, “You can do certain tasks, like don’t push (indistinct) and all that stuff because it’s heavy,” so I chose to do medications, blood cleaning, beds and all that stuff. So when I have highlighted here being told off to finish tasks when it’s not finished, it has nothing to do in terms of jobs priority. I have been told to finish tasks, for example, one day I was back in the bistro and Tamer wanted me to do something else, he said, “Ilhan, I want to give you something else,” and I’m like, “I’m not finished the task. What do you want me to do,” and he told me to finish the task, even though the task was not finished at that time. Him being as my supervisor, I perhaps complete task and I went to do something else that he requested me to do, so that’s what I’m talking about when I’m getting told to finish when I haven’t.
Mr Addison: Even though it’s not finished?---Yes, because I get called to do something else.”

[114] There is nothing in the evidence of Ms Hassan on this point which suggests any misconduct by Mr Selcuk or supports the contention of Epworth Healthcare that Mr Selcuk engaged in misconduct by telling Ms Hassan to click that a job was finished when the job was not finished. The very purpose of the CARPS system was to record when an employee was employed on a task and when the employee had finished on that task. Where Mr Selcuk directed Ms Hassan to click finish on a job the CARPS system would have recorded the start and finish times for Ms Hassan on that task. If at a later time on the same day either Ms Hassan or another employee were directed by CARPS to the same job then that does not necessarily mean that any misconduct has occurred by anyone. The real question would still have been - Is the job required to be done and did a person actually do the job in a reasonable time?

[115] Ms Hassan also acknowledged in her evidence that Mr Selcuk had been lenient with her due to her pregnancy. 12

[116] Ms Hassan also gave evidence 13 of an occurrence where she had been asked to and had performed 3 jobs that had not been allocated to her through CARPS and where after she had finished the jobs she was advised by Mr Sidhu, the CARPS Controller, that he would send the jobs to her through her android device and she could then click on the jobs so that they would be recorded in CARPS.

[117] Whilst the evidence of Ms Hassan on this point shows a poor use of the CARPS system to record tasks allocated, it does not disclose any attempt to create a false job in CARPS. The record in CARPS created by Ms Hassan was clearly a false record in that the 3 jobs were not performed by Ms Hassan at the time recorded in CARPS. However the record in CARPS created by Ms Hassan reflects the reality that she performed 3 tasks.

[118] The explanation given of the CARPS system does not appear to require that every job performed by every PSA or ESA had to be recorded in CARPS. This appears to be so given that some PSA’s were allocated to wards to perform a range of general duties in the wards.

[119] The evidence of Ms Hassan on this point strongly suggests that Mr Sidhu failed to exercise proper control over the CARPS system and failed to allocate tasks in CARPS as the tasks were allocated, in fact, to an employee.

[120] In relation to the allegation that Mr Selcuk knew that two employees left work to buy food for other employees the picture painted by the evidence of each of Mr Lu, Ms Hassan and Mr Selcuk is quite interesting.

[121] Ms Hassan said in her statutory declaration:

“13. I never leave the hospital during my shift, but I am aware of others that do. Risheel Sidhu and George leave the hospital to buy food for a group of staff wanting food. Risheel lets Tamer know he is going on a food run.

14. Risheel picks up Malaysian or KFC from Church Street and Swan Street, Richmond. More recently, over the past 2 weeks, we have been having kebabs. Risheel goes to the city to get the kebabs. George can sometimes do the food run as well. Everyone stands around the computer looking at what food they will be getting. We give the person who is picking up the food our money, the person leaves to get the food, they come back and we eat. This happens daily.

15. We can be waiting from 40 minutes to 1hour for our food to arrive from the time Risheel leaves. This is usually because it’s busy and there’s traffic. Risheel leaves between 5:00pm-6:00pm when the person picking up the meals leaves the hospital to get the food. We usually eat around 6.00pm- 6.30pm.”

[122] Mr Lu in his statutory declaration said:

“17. Risheel Sidhu goes out, for his meal breaks but they are very long. He goes to KFC, the city. He does this for everyone but he is the one to leave.

20. When Risheel Sidhu leaves, he has Pat Gentile cover for him. He tells Pat to do his [Risheel’s] job; then after some time, maybe 20 minutes, Pat stops Risheel in the computer and puts him on his meal break.
That way, Risheel gets an extra long break, but the computer does not know, it just has him on his normal meal break. Tamer Selcuk knows this happens.”

[123] MrSelcuk was extensively cross examined in relation to the same issue 14. The salient points of Mr Selcuk’s evidence are as follows:

Mr Selcuk did not ask for or give money to Mr Sidhu to get food for him during work hours.

Mr Selcuk did not know if Mr Sidhu left the hospital to get meals.

Mr Selcuk had asked another employee George to get food for Mr Selcuk from McDonalds because the canteen is closed at night.

Mr Selcuk had asked other cleaners to get him food on occasions from McDonalds or other food outlets because the canteen is closed at night.

Mr Selcuk would not eat any meal in the CARPS office with the cleaners.

[124] When the evidence of each of Mr Selcuk, Mr Lu and Ms Hassan are considered in light of each other the following conclusion can be drawn.

[125] Mr Selcuk was aware of the practice of employees leaving the hospital to obtain food at night as the canteen in the hospital was closed and on occasions he used these employees to buy food for himself.

[126] Mr Selcuk encouraged the practice of employees leaving the workplace to buy food through his direct participation in the practice.

[127] It would have been obvious to Mr Selcuk how long these employees took to obtain food as he would have been aware as to when they left the hospital to buy food for himself and when they returned with food bought for him. The evidence of Ms Hassan puts a time of 40 mins to 1 hour on employees leaving the hospital to buy food.

[128] Mr Selcuk had the opportunity, at the very least on those occasions when other employees left the hospital to buy food for himself, of ascertaining whether the employee took a full meal break after returning to the hospital with the food or whether the employee’s meal break covered the travel time.

[129] The evidence before the Commission is insufficient to support a finding that Mr Selcuk knew that Mr Sidhu was taking extended and unauthorised meal breaks.

[130] On the balance of probabilities the Commission concludes: (1) that employees who went outside to get food then ate their food with the other employees when the food was brought back to the hospital, thus creating an extended and unauthorised meal break for the employee getting the food; and (2) Mr Selcuk had knowledge of this.

[131] In relation to the smoking group, the evidence is that Mr Selcuk did leave the workplace on occasions to go outside with the smoking group. I note that the evidence of Ms Hassan is no higher than that Mr Selcuk did go outside with the smoking group. The evidence of Ms Hassan was also that the smoking group went outside three to four times per week. Ms Hassan did not give evidence that Mr Selcuk went outside every time that the smoking group went outside.

[132] The evidence of Mr Lu was that Mr Lu had not seen Mr Selcuk go outside with the smoking group.

[133] The evidence of Mr Lu is compatible with the evidence of Ms Hassan.

[134] The Commission can conclude that on some occasions Mr Selcuk went outside with the smoking group. The Commission can conclude that this amounts to misconduct by Mr Selcuk.

[135] There was the unchallenged evidence of Ms Hassan in relation to conduct on Monday 14 July 2014:

“42. Last Monday 14 July 2014, I went to the office for a work related purpose. Risheel Sidhu, Andy Vo, Roderick Besino, Tamer Selcuk and Zhaowei Xu (Shu) were in the office. They were not doing work. They head Andrea Hunter’s shoes and closed the door. I was told to duck down so Andrea couldn’t see me and Andy Vo held a piece of paper up to the gap in the window so Andrea could not see in. After a while, Tamer Selcuk stood on a chair to check that Andrea had left. They were not doing any work and did not want to get caught.” 15

[136] The Commission is satisfied that the evidence of Ms Hassan discloses misconduct on the part of Mr Selcuk on 14 July 2014.

[137] The allegations of misconduct which were given to Mr Selcuk on 16 July 2014 contain 6 elements. The 6 elements are as follows:

“(1) Specifically, it is alleged you actively and knowingly participate in the routine, repeated action of creating tasks in the CARPS Control system that are:

• false tasks or jobs;
• duplication of existing tasks; and
• create unnecessary tasks.

(2) It is further alleged that the fore mentioned tasks:

• are not conducted, thus creating false data that is reported on
• have been previously conducted; and/or
• are not required to be conducted; and
that you are aware of this practice and that you encourage this practice.

(3) It is also alleged that you are derelict in your duties as a Supervisor in the failure to hold staff on Afternoon Shift accountable to the actions required of them as employees of Epworth HealthCare.

(4) Specifically, it is alleged you knowingly allow the practice of an employee in your direction to routinely leave the hospital whilst wearing scrubs for extended meal breaks that are not recorded on the employee’s timesheet.

(5) Further allegations include that you direct employee’s that report to you to falsely create tasks; and

(6) that you have deliberately, willfully (sic) and consistently, direct (sic) employees in the Patient Transport department to delay the transport patients from the Emergency Department.” 16

[138] The termination letter was expressed differently. The misconduct which Epworth Healthcare found had been proven against Mr Selcuk was stated to be:

“I have considered all of the information at hand regarding these allegations and the responses from yourself and conclude that in your Supervisory role at Epworth
Healthcare that:

staff regularly being away from work and/or leaving the hospital on paid time

false tasks or jobs being created on afternoon shift;

deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks

permanent staff not being directed to work productively.

[139] The very language of the termination letter makes it difficult for the Commission to understand what constitutes the full range of misconduct that Epworth Healthcare contends Mr Selcuk engaged in.

[140] The use of the phrase “this included but was not limited to” makes it clear that Epworth Healthcare had other conduct in mind as justifying the dismissal of Mr Selcuk but which was not going to be disclosed in the letter of termination. However for the purpose of considering the application in this matter the Commission must have regard to the allegations made against Mr Selcuk in writing on 16 July 2104 and the material disclosed by Epworth Healthcare as being the material it relied on in deciding to terminate the employment of Mr Selcuk.

[141] I now turn to address the criteria set out in s.387 of the Act.

(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)

[142] Whether or not there is a valid reason for the dismissal must be viewed from the perspective of the employer and must be defensible or justifiable on an objective analysis of the facts. 17

[143] The reason given by Epworth Healthcare for the dismissal was that Mr Selcuk had “wilfully and deliberately behaved in a manner that is inconsistent with the continuation of your employment contract with Epworth”. The facts found to exist by Epworth Healthcare which justified the reason for dismissal was that:

• there was inadequate supervision of staff by Mr Selcuk allowing for inappropriate practices and/or fraudulent behaviour to occur, and that Mr Selcuk was aware of and a part of some of these practices. This included but was not limited to
• staff regularly being away from work and/or leaving the hospital on paid time
• false tasks or jobs being created on afternoon shift;
• deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks
• permanent staff not being directed to work productively.

[144] The evidence in this matter supports a finding that there was inadequate supervision of staff by Mr Selcuk allowing for inappropriate practices and/or fraudulent behaviour to occur, and that Mr Selcuk was aware of and a part of the practice of staff regularly being away from work and/or leaving the hospital on paid time.

[145] The facts supporting this finding are: (1) that Mr Selcuk did leave the workplace on occasions as part of the smoking group and (2) that Mr Selcuk through his participation in the practice of some employees leaving the workplace to buy food allowed an inappropriate practice whereby some employees were away from work on paid time.

[146] The evidence in this matter does not support a finding that there was inadequate supervision of staff by Mr Selcuk allowing for inappropriate practices and/or fraudulent behaviour to occur, and that Mr Selcuk was aware of and a part of any or all the practice of:

• false tasks or jobs being created on afternoon shift;
• deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks
• permanent staff not being directed to work productively.

[147] The evidence in this matter does not support the reason given by Epworth Healthcare that Mr Selcuk had “willfully (sic) and deliberately behaved in a manner that is inconsistent with the continuation of your employment contract with Epworth”.

[148] Whilst Epworth Healthcare has not satisfied the Commission that the reason for the dismissal as identified in the termination letter was a valid reason, Epworth Healthcare has satisfied the Commission that it did have a valid reason for the dismissal. The findings made in [145] and [146] above constitute a valid reason for the dismissal.

(b) whether the person was notified of that reason

[149] At its simplest, Mr Selcuk was notified of the reason for dismissal as given by Epworth Healthcare.

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

[150] Mr Selcuk was given an opportunity to respond to the reason for dismissal as identified by Epworth Healthcare and that reason did relate to the conduct of Mr Selcuk.

(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

[151] There was no unreasonable refusal by Epworth Healthcare to allow Mr Selcuk to have a support person present to assist at any discussions relating to the dismissal.

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

[152] The dismissal did relate to unsatisfactory performance by Mr Selcuk in his role as Supervisor. No warnings had been given to Mr Selcuk about his performance before the dismissal.

(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

[153] Epworth Healthcare is a very large employer and has detailed disciplinary procedures including up to dismissal of employees. The very size of Epworth Healthcare has a significant impact on the procedures followed by Epworth Healthcare in effecting the dismissal of Mr Selcuk. The significant impact is not negative in relation to Mr Selcuk.

(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

[154] This criteria is not relevant in the present matter given that Epworth Healthcare does have dedicated human resource management specialists or expertise.

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

[155] The effect of the operation of s.387(h) is to require the Commission to have regard to matters which the Commission considers relevant in considering whether the dismissal is harsh, unjust or unreasonable.

[156] The decision of the majority in B, C and D v Australian Postal Corporation T/A Australia Post 18is helpful in understanding the role of s.387(h).

[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button ; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited ; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] . That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

‘(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]’

[43] The determination of whether there was a valid reason proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

[44] This may best be illustrated by an example:

‘A bus company has a strict policy that drivers are to obey the rules of the road at all times and a particular and prominent policy that a driver must never use a mobile phone while driving. A passenger complained about a driver using his mobile phone while driving. The employer investigated the complaint. Closed circuit video showed the driver hesitating before taking an incoming call for a few seconds and then making a brief outgoing call when the bus was next stopped. The bus company dismissed the employee for breaching the policy prohibiting mobile phone use while driving or in the bus.’

[45] At this point there is clearly a valid reason. Valid reason is viewed from the perspective of the employer. That view disregards issues of substantive fairness from the employee’s perspective and there is clearly a valid reason. The employer had a vital interest in limiting its legal liability from accident or injury associated with a breach of the road rules, especially using a mobile phone while driving. The employer’s policy was obviously reasonable. The employer was entitled to view compliance with its policy against the use of mobile phones by drivers in its public buses as a very serious matter. Now consider the following additional circumstances personal to the employee:

‘The employee’s wife was suffering from severe depression and occasionally suicidal. That morning his wife was severely depressed and had begged him not to go to work. The call that he took was a call from his wife. He hesitated before taking the call but was frightened that his wife may be in a crisis state and that not taking the call could lead to catastrophic consequences. He took the call but only to tell his wife that he could not speak to her because he was driving and would call her back as soon as it is safe for him to do so. He did that when the bus was stopped and ascertained that there was no crisis. The employee had given long and loyal service and had an unblemished disciplinary record. Dismissal would likely have had very severe consequences for the employee. The employee acknowledged his fault and was remorseful.’

[46] It can be seen that those additional circumstances put a totally different complexion on the dismissal. In the case on which this example is based, the dismissal was held to be harsh, notwithstanding the existence of a valid reason, and the employee was reinstated. No backpay was ordered as a reflection of employee’s misconduct (see Nasrieh v ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus ). That outcome is consistent with the approach of Northrop J in Selvachandran. When issues of substantive fairness from the employee’s perspective were considered, the dismissal was harsh notwithstanding the existence of a valid reason viewing the conduct in isolation of the employee’s personal circumstances.”

[157] Although the matter in B, C and D v Australian Postal Corporation T/A Australia Post concerned a breach of policy in relation to emailing pornography the decision is still relevant to cases such as the present. As the Full Bench noted:

“[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors that may make a dismissal harsh notwithstanding the existence of a valid reason also present as a spectrum. The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.
[70] The point is that there are some forms of wilful misconduct (like deliberate fraud against the employer or a serious unprovoked assault) that will almost certainly merit dismissal irrespective of an employee’s length of service, good disciplinary record and personal circumstances. Employees do not need to be warned that such conduct will be treated seriously by the employer. (Albeit that, even then, it is possible construct extreme scenarios where it may be objectively unfair to dismiss the employee – for example, the misconduct occurred while the employee was suffering a one-off episode of automatism arising from a injury caused negligently by another employee). There are other forms of misconduct that are clearly not such as to merit summary dismissal but should be the subject of a warning or warnings or ‘active steps’ that bring home to the employee that the employer regards the conduct in question as serious and meriting dismissal before dismissal occurs, particularly where the employee has substantial service. That is so in the present case.” 19

[158] There are several matters which are relevant for the purpose of s.387(h).

[159] The length of service of the Mr Selcuk is a relevant matter. Mr Selcuk has been employed with Epworth Healthcare for 20 years and has been a supervisor of cleaners for 18 years. Mr Selcuk has health problems having suffered from kidney failure in the past which was treated at Epworth Healthcare. Mr Selcuk appears to have limited employment prospects.

[160] Termination of Mr Selcuk’s employment has had and will have a significant negative impact on him.

[161] Whilst the process adopted by Epworth Healthcare was sufficient for the Commission to conclude that the requirements of s.387(b) and (c) it doesn’t mean that the process was fair and reasonable.

[162] Material that Epworth Healthcare made available to Mr Selcuk after the dismissal and only as a result of the unfair dismissal application was never made available to him prior to the decision being made to dismiss him from his employment.

[163] Whilst it is clearly understandable that an employer may wish to restrict the ability of employees under investigation from talking to other employees that restriction appears to be completely unreasonable once the investigation has been completed by the employer.

[164] In the present matter Epworth Healthcare in its letter of 16 July 2014 to Mr Selcuk and in which Epworth Healthcare set out the allegations against Mr Selcuk it also said:

“Please note that throughout this process you are directed to maintain strict confidentiality and are not to discuss any details of this investigation including with any other Epworth HealthCare employees, except any support person or representative you may have. Should you fail to comply with this direction, you will be subject to a separate disciplinary process.”

[165] The overt threat of further and separate disciplinary action against Mr Selcuk operates as a very effective bar to Mr Selcuk gaining statements or evidence to support his response to the allegations made.

[166] Once Epwoth Healthcare had completed its investigation including obtaining sworn statutory declarations from Mr Lu and Ms Hassan and obtaining CARPS reports for November 2013 and May/June 2014 it would be reasonable for that material to have been made available to Mr Selcuk before he was required to respond to the allegations made against him.

[167] At its simplest Epworth Healthcare put the allegations of misconduct to Mr Selcuk and gave him an opportunity to respond but Epworth Healthcare did not put to Mr Selcuk the material upon which Epworth Healthcare relied to support the allegations nor did Epworth Healthcare give Mr Selcuk an opportunity to test or respond to that material.

[168] The process adopted by Epworth Healthcare has an inherent degree of unfairness in it in relation to Mr Selcuk. Epworth Healthcare knew the basis upon which they could and did make a decision and they knew the view they have formed in relation to the material in their possession which they contended supports the allegations made against Mr Selcuk. But, and it is very big BUT, Mr Selcuk was required to respond to allegations made against him without knowing the details of the material upon which Epworth Healthcare relied.

[169] The first and only time that Mr Selcuk was given an opportunity to see and test the material relied on by Epworth Healthcare was in the proceedings before the Commission in this matter.

[170] The termination of Mr Selcuk needs to be considered in light of the disciplinary action taken against other employees. Mr Selcuk was treated the same as Mr Rasheel Sidhu, CARPS Controller on the afternoon shift and Mr Aarons an ESA on afternoon shift. Mr Roderick Besino was given a First and Final warning 20, Ms Hassan was given a First warning.

[171] A First warning appears an appropriate response to Ms Hassan’s conduct.

[172] A First and Final warning to Mr Besino appears to be a very light disciplinary outcome given the evidence presented to the Commission which very strongly suggests significant wrong conduct by Mr Besino.

[173] The dismissal of Mr Sidhu appears to be a reasonable response to the misconduct of Mr Sidhu given the material presented to the Commission in this matter.

[174] The dismissal of Mr Selcuk does not appear to be an appropriate or proportionate response to the proven misconduct of Mr Selcuk.

[175] The proven misconduct would appear to be less than that of Mr Sidhu and potentially less serious than that of Mr Besino but certainly not more serious than that of Mr Besino and is certainly more serious than that of Ms Hassan. This would suggest that an appropriate and proportionate response to the proven misconduct of Mr Selcuk was disciplinary action less than dismissal.

[176] The proven misconduct of Mr Selcuk also needs to be considered in light of the tolerance of Epworth Healthcare to practices engaged in by other employees which appear to be inappropriate or possibly fraudulent.

[177] Mr Barros, Environmental Services Department Manager, travels to and from work with his wife Mrs Lupe Barros, one of two Day Shift Supervisors in the Environmental Services Department. It emerged through the proceedings that Mrs Lupe Barros, who has a nominal rostered finish time of 4.00pm, actually finishes work at 3.30pm. Leaving work half an hour early was explained on the basis that Mrs Barros is entitled to 2 x 10 minute rest breaks during the day and if she does not take those rest breaks then she is entitled to leave early. In relation to the final 10 minutes it was explained that Mrs Barros claimed a 10 minute period as wash up time, which is an entitlement that some employees have under the terms of the enterprise agreement. Whether Mrs Barros was entitled to wash up time was not clear, but if she was, the practice of not using the wash up time to wash up but rather to use it to leave work early was questionable. Mr Benedict admitted that a similar practice of not using wash up time to wash up but to use it to leave work early was “custom and practice” in another area of the hospital. Mr Benedict said of the enterprise agreement provision for wash up time:

“PN6193: The correct interpretation of the course - I think it would suggest that you’re dirty and you need to wash and change your clothes before leaving, and how many minutes takes I think would vary, as I said before.”

[178] Mr Benedict also explained that where the “custom and practice” of using wash up time as a means of leaving work early rather than wash up occurred then, even though this was inconsistent with the operation of the enterprise agreement, it was not considered to be a disciplinary matter.

[179] The very fact that the terms of the enterprise agreement which apply to supervisors and ESA’s and PSA’s in the Environmental Services Department, as well as to other employees at Epworth Healthcare, is not complied with by some employees because of “custom and practice” strongly suggests that the very strict approach adopted by Epworth Healthcare to the conduct of Mr Selcuk and others may not have been appropriate. Much of the evidence of Mr Selcuk in relation to jobs identified in Exhibit R3 was that this work had been done for years. Mr Selcuk’s evidence is supportive of a custom and practice in relation to cleaning duties.

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

[180] Each of the criteria in s.387(a) to (f) as considered above support a finding that the dismissal was not harsh, unjust or unreasonable. Each of the matters considered under s.387(h) support a finding that the dismissal was harsh, unjust or unreasonable. When balanced against each other the balance falls clearly in favour of a finding that the dismissal is harsh unjust and unreasonable.

[181] The dismissal is harsh. Notwithstanding the proven misconduct of Mr Selcuk the outcome of termination of employment is extremely harsh on Mr Selcuk.

[182] The dismissal is unjust. The procedure adopted by Epworth Healthcare did not provide Mr Selcuk a proper opportunity to consider and respond to any material relied upon by Epworth Healthcare before Epworth Healthcare made the decision to dismiss Mr Selcuk.

[183] The dismissal is unreasonable. In the context of the disciplinary action taken against other employees and in the context of the tolerance of “custom and practice” which appears to constitute inappropriate behaviour by other employees of Epworth Healthcare it was not a reasonable response to the misconduct of Mr Selcuk to have dismissed him.

Remedy

[184] Having found that the dismissal of Mr Selcuk was harsh unjust and unreasonable the Commission must now consider the question of remedy. Mr Selcuk has sought reinstatement and an order for lost remuneration. The relevant provisions of the Act are:

‘390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 395(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.’

[185] Whether any remedy should be granted is a matter of discretion for the Commission to decide. A finding that there has been an unfair dismissal does not mean that the Commission must grant a remedy.

[186] In the present matter the Commission intends to exercise its discretion to grant a remedy to Mr Selcuk. To do otherwise would be to compound the unfairness of the dismissal.

The primary remedy to be considered is reinstatement. Epworth Healthcare oppose reinstatement.

[187] Reinstatement has to be to the position that Mr Selcuk was employed in immediately before the dismissal or to another position on terms and conditions no less favourable than those on which Mr Selcuk was employed immediately before the dismissal. Reinstatement would require Mr Selcuk to be placed in the position of Afternoon Shift Supervisor in the Environmental Services Department on in a position equivalent to an afternoon shift supervisor.

[188] Mr Selcuk gave evidence that he considered Mr Barros, his direct manager to have bullied him and to have acted in manner intended to cause Mr Selcuk to fail in his job.

[189] I find that it would be singularly inappropriate to put Mr Selcuk back into the position of Afternoon Shift Supervisor in the Environmental Services Department given Mr Selcuk’s attitude towards Mr Barros.

[190] Given the specific skill set of Mr Selcuk in relation to cleaning it would appear to be inappropriate to reinstate Mr Selcuk to another position on terms and conditions no less favourable than those on which Mr Selcuk was employed immediately before the dismissal. I note that no such positions were identified by Mr Selcuk or his legal representative.

[191] The remedy of reinstatement as set out in s.391 is inappropriate in the present matter.

[192] The Commission does consider that compensation is appropriate in all of the circumstances of the case.

[193] An amount of compensation is to be calculated by the Commission taking into account all of the circumstances of the case including the specific criteria in s.392(2)(a) to (g) inclusive but without including any amount proscribed by s.392(4).

[194] A concession was properly made by Mr Addison for Epworth Healthcare that an order for compensation would not affect the viability of Epworth Healthcare. (PN6908)

[195] If Mr Selcuk had not been dismissed it is very clear to the Commission that Mr Selcuk would have remained in employment with Epworth Healthcare for many years. Even if Mr Selcuk had been given a First and Final Warning and even if Mr Selcuk had been removed from afternoon shift and placed on day shift and even if Mr Selcuk had accepted a voluntary demotion all of the evidence before the Commission points to Mr Selcuk working for Epworth Healthcare for many years.

[196] The evidence of Mr Lu was that Mr Selcuk was a very good worker but that he did cleaning work that he should have allocated to others. Mr Selcuk’s own evidence was that he constantly did cleaning tasks and other hands on work when he saw the need. Mr Selcuk described his relationship with his work and work colleagues as: “That place is like my home. That's like family to me.” In closing submissions Mr Vasilars, in the context of the issue of reinstatement, said: “He would even be prepared to return to work on a lesser paying role. That’s how bad he wants to go back to Epworth. 21

[197] The very fact that Mr Selcuk has been employed with Epworth Healthcare for 20 years is a relevant matter in considering how long Mr Selcuk would have continued to be employed if he had not been dismissed and assists the Commission in coming to a concluded view that Mr Selcuk would have remained in employment for many years.

[198] Using the current base rate for a General Services Supervisor without shift allowances or any other allowance Mr Selcuk, if he had continued to be employed by Epworth Healthcare for at least the next 5 years, would have earnt at least $270,000. Even if Mr Selcuk had voluntarily accepted a demotion to an Environmental Services Assistant position Mr Selcuk would have earnt over $206,000 in the next 5 years. This latter figure is the appropriate figure to use for the purpose of s.392(2)(c).

[199] Mr Selcuk gave evidence that he had made efforts to mitigate the loss he has suffered because of the dismissal. The Commission accepts that the efforts made by Mr Selcuk were appropriate and that no reduction should be made to the amount of compensation which would otherwise be calculated.

[200] Mr Selcuk gave evidence that he had earnt nothing since his dismissal and was not likely to earn any money in the period up to the payment of any compensation in this matter. I accept the submission from Mr Vasilaras 22 that Mr Selcuk’s prospects for gaining paid employment are quite low.

[201] There are no other matters that the Commission considers relevant to the calculation of an amount of compensation under s.392(2).

[202] The initial value of an amount of compensation that should be paid to Mr Selcuk is $206,000 and this amount does not include any component for shock, distress or humiliation, or other analogous hurt, caused to Mr Selcuk by the manner of the dismissal. The specific criteria in s.392(2)(b), (d), (e), (f) or (g) do not require any alteration to be made to the initial amount of compensation.

[203] Any amount of compensation must be reduced if the Commission is satisfied that misconduct of Mr Selcuk contributed to Epworth Healthcare’s decision to dismiss Mr Selcuk. The findings made by the Commission in relation to the misconduct of Mr Selcuk lead to the proper conclusion that the misconduct of Mr Selcuk did contribute to the decision of Epworth Healthcare to dismiss Mr Selcuk.

[204] In the present matter s.392(3) requires that an appropriate reduction be made to the amount of compensation that the Commission would otherwise order be paid to Mr Selcuk. I would reduce the amount of compensation to be paid by half.

[205] The amount of compensation that should be ordered to be paid to Mr Selcuk is $103,000. This amount however is greater than the compensation cap set by s.392(5) and (6).

The maximum amount of compensation that can be awarded to Mr Selcuk is $32,500.

[206] The Commission will order that Epworth Healthcare pay Mr Selcuk an amount of $32,500 as compensation for unfair dismissal.

COMMISSIONER

Appearances:

A. Vasilaras on behalf of the Applicant.

M. Addison on behalf of the Respondent.

Hearing details:

2014.

Melbourne.

November 17, 18, 19

December 3, 4, 17

1 Transcript at PN6604 - PN6624.

2 Exhibit A1, paragraphs 4 and 5.

3 Exhibit A2, paragraph 5.

4 Transcript at PN5641.

5 Exhibit R16.

6 Exhibit A1, attachment A.

7 60 CLR 336 at 361.

8 Transcript at PN5255.

9 Ibid at PN5241-5242.

10 Exhibit R13, attachment CM13 (File Note 18/8/14 by Simon Benedict).

11 Transcript at PN1392 and PN6136.

12 Ibid at PN3913.

13 Exhibit R13, attachment CM16, Statutory Declaration of I. Hassan at para 36 and transcript at PN3989.

14 Transcript at PN272-341.

15 Exhibit R13, attachment CM16, Statutory Declaration of I. Hassan at para 42.

16 Exhibit A1, attachment A.

17 B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 at [34] and Rode v Burwood Misubishi, Print R4471 at pn 19.

18 [2013] FWCFB 6191.

19 Ibid at paragraphs 69-70.

20 Transcript at PN6290.

21 Ibid at PN6887.

22 Ibid at PN6927.

Printed by authority of the Commonwealth Government Printer

Tamer Selcuk v Epworth Healthcare

[2015] FWC 437

16 JANUARY 2015

DECISION

Background

Overview of the cases presented by either side

Deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks

Exhibit R3

Pathology (Buffing)

DMU

Level 1 Normanby (buff)

Conclusion in relation to Exhibit R3 and Mr Barros’s evidence

The November CARPS Reports

The evidence of Ms Hassan and Mr Lu

(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)

(b) whether the person was notified of that reason

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

(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

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

(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

(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

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

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

Remedy