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Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157 (30 November 2006)

Last Updated: 18 April 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157

FILE NUMBER(S): 1020

HEARING DATE(S): 28/06/06, 29/06/06

DECISION DATE: 30/11/2006PARTIES: APPLICANTSanjay Sharma

RESPONDENTSydney South West Area Health Service

JUDGMENT OF: Bishop C

LEGAL REPRESENTATIVES

APPLICANTSanjay Sharma(Applicant in Person)RESPONDENTMr P Newell of counselMr G DriverSydney South West Area Health Service

CASES CITED: Antonakopoulos v State Bank (1999) 91 IR 385Bankstown City Council v Paris (1999) 93 IR 209Bell v Linfox [ 2006] NSWIR Comm 1025Burge v BHP Steel Pty Ltd [ 2001] NSWIRComm 117Bigg & Anor v New South Wales Police Service (1998) 80 IR 434Briginshaw v Briginshaw (1938) 60 CLR 336Burke v McGirr (1998) 87 IR 54Busways v Johnson (1994) 55 IR 255Byrne & Anor v Australian Airlines (1995) 61 IR 32Four Sons Pty Limited v Sakchai Limsiripothong 98 IR 1NUW (on behalf of Khan) v Cuno Pacific Pty Ltd] NSW IR Comm 388New South Wales Fire Brigdes ( on behalf of Natoli) v New South Wales fire Brigdes [ 2005] NSWIRComm 440Outboard World v Muir (1993) 51 IR 167Pastrycook Employees, Biscuit Makers Employees & Floor & Sugar Goods Workers' Union (NSW) v Gartrell White (No3) (1990)35 IR 70Police Association of New South Wales on behalf of Tregonning v New South Wales Police Service(1999)IRC 2799/99Rapp v Wauchope RSL Club (1998) 81 IR 116Sams v Contact Point International Pty Ltd [ 2001] NSWIRComm18Wang v Crestell Industries Pty Ltd (1997) 73 IR 454Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273Youssef v Western Sydney Area Health Service [2003] NSW IRC Comm 284

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 59 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

30 November 2006

Matter No IRC 1020 of 2005

Sanjay Sharma and Sydney South West Area Health Service

Application by Sanjay Sharma re unfair dismissal pursuant to section 84 of the Industrial relations Act

DECISION

[2006] NSWIRComm 1157

1 This is an application by Sanjay Sharma against Sydney South West Area Health Service ("the Health Service") for a remedy pursuant to section 84 of the Industrial Relations Act 1996 . The Health Service dismissed Mr Sharma from his position of Security Officer at Fairfield Hospital on 11 February 2005. Mr Sharma sought reinstatement, re-employment or alternatively monetary compensation in lieu thereof.

2 The matter was listed for conciliation and directions before Commissioner Macdonald on 18 March 2005 at which time conciliation took place. As no settlement could be reached between the parties, on 1 April 2005, directions were issued as to the filing and exchange of witness statements and the matter set down for hearing on 5 and 6 October 2005. As the applicant was unable to comply with the directions as issued, new directions were issued on 19 September 2005 and new hearing dates set for 20 and 21 February 2006.

3 On 15 February 2006, Justice Staff granted an adjournment application made by the applicant to vacate the hearing dates in February as he had just secured full time employment. Further hearing dates were set for 28 and 29 June 2006. The file was then allocated to the Commission as currently constituted.

4 At the hearing Mr Sharma appeared on his own behalf (having filed affidavits - Exhibits 1 and 2). He called the following witnesses on subpoena:

Cesar Magpayo - Security Officer, Fairfield Hospital (Exhibit 3), Timanu Mita - Security Officer, Fairfield Hospital (Exhibit 4).

5 Mr Newell, of Counsel, appeared for the Health Service and called the following witness:

Trevor Thompson - Fire Safety and Security Manager Fairfield Health Service (Exhibit 6).An affidavit was also admitted (without objection) from Michael Woodhouse, former General Manager, Fairfield Health Service (Exhibit 5).

Background and Chronology - based on the evidence filed and the transcript.6 Mr Sharma is a family man aged 39 who commenced employment at Fairfield Hospital as a casual Security Officer in 1999. He was made permanent in 2000 and was employed under the Hospital Employees' Conditions of Employment (State) Award and the Hospital Employees (State) Award. He was paid $642.60 per week (excluding shift allowances and penalty rates). Mr Sharma was also a Union Delegate for the Health Services Union ("the HSU") at the Hospital.

7 At the time of Mr Sharma's termination of employment at Fairfield Hospital there were 13 Security Officers of mixed ethnicity, 10 full-time and 3 part time.

8 Mr Trevor Thompson was appointed to the position of Fire Safety and Security Manager, Fairfield Health Service, Sydney South West Area Health Service, in August 2003. There had been previously been such a dedicated position. Mr Sharma had also applied for the position.

9 In about September 2004, a new Security Office was opened replacing the old open plan area within the administration office. From this date, access to the Security Office was by the use of an electronic key card system, which also records the date and time of access to the office and who had gained such access. Other Hospital staff members do not have key card access to the Security Office, only Security Officers have such key card access. No electronic record is made of persons exiting the office. Each Security Officer has an individually keyed card which cannot not be duplicated. There is no security camera within the Security Office nor do any of the CCTV cameras installed provide vision of persons entering or exiting the Security Office. It is possible that more than one Security Officer can gain entry to the Security Office when an individual Security Officer uses his key card to access the Office (by virtue of two or more such Officers walking in at the same time).

10 Mr Thompson's office is adjacent to the Security Office and it can only be accessed through the Security Office by a key which is only held by Mr Thompson (another copy is held in the locked key cabinet with restricted access which must be logged). There is no separate access from Mr Thomson's office to the Hospital corridor.

11 At Fairfield Hospital there are two types of CCTV cameras installed for security purposes. There are "fixed cameras" and "pan tilt zoom cameras" ("PTZ's"). Both types of cameras have the video images taken, stored on a computer located in the security office, which also reports the time and date the images were taken. The fixed cameras operate continually 24 hours per day, seven days a week and are mainly located to observe the publicly accessible and/or high risk areas. The pan tilt zoom cameras are located to observe the following areas, North Car Park (two cameras), Main Entrance Driveway and surrounds, South Car Park, Maintenance building and surrounds, Stores, Rear of main hospital building on the Golf Course side, Emergency Waiting Room areas. The tilt zoom cameras are programmed to follow a predetermined oscillation circuit "panning" and can also be operated manually. When the PTZ cameras are operated manually the cameras can be "zoomed" in and out of a particular view or panned left,

right, up or down. This function is to enhance their security effectiveness. Two separate icons appear on the computer screen which indicate both manual control and zooming is being undertaken.

12 There are two 19 inch LCD monitors in the Security Office on which can be displayed vision from any particular camera. The system can be run to display all 16 cameras; a bank of 4; 1 at a time or cycling through the whole range of the cameras automatically.

13 On 5 October 2004 Mr Thompson completed a Reportable Incident Brief following his observation that all the PTZ cameras, during the period 3 to 5 October 2004, were not functioning on their normal programmed automatic fields but were all directed to obscure locations and fixed in one position. He also reported that several of the fixed cameras had the contrast altered to show only a black vision. The Brief was submitted to Mr Michael Woodhouse, the then General Manager, who requested that another employee of the Health Service together with Mr Thompson fully investigate the issues documented and in so doing they were to examine not only when the cameras were adjusted but also the staffing rosters to determine the Security Officers on duty during this period. The investigation was to also identify any issues relating to training, skills or potential misuse of the equipment. That investigation report was provided to Mr Woodhouse on 3 November 2004.

14 On 30 November 2004 Mr Thompson again observed, on entering the Security Office, that the PTZ cameras were not oscillating and were on fixed and obscure positions (e.g. directed at the sky). He reviewed the CCTV footage to ascertain when the cameras were taken off automatic programming, the employee roster to ascertain which Security Officers were on duty, and the security access system to ascertain who gained access to the Security Office at the relevant times. As a result he identified the following:· Cameras covering the North car park, the Hospital main entrance and the Visiting Medical Officers' car park were taken off programming at 1856 and 1857 on 28 November. Ned Veljovic, Graham Croft and Cesar Magpayo were on duty.· The camera covering the South car park was taken off automatic oscillation at 0455, 0506 and 0507 on 30 November. Access to the Security Office was made by Juanito Alvarado at 0450 and Timanu Mita at 0502.· The camera for the Visiting Medical Officers' car park was taken off automatic oscillation at 2044 on 30 November. The camera in the South car park was taken off automatic oscillation at 2034 and 2052 on 30 November. Ned Veljovic, Veljko Rapic and Sanjay Sharma were on duty. Access to the office was made by Sanjay Sharma at 2030 and 2042. No other person was recorded as entering the Office between those times and no other person was recorded as accessing the Office until 2104.

15 During this investigation footage was found that was considered to be inappropriate, specifically zooming in on women's breasts and bottoms. That footage was of 30 November. There was no indication in the evidence as to whether the cameras which were taken off automatic programming on 28 November were then used manually at all or used inappropriately.

16 Mr Sharma attended a Fact Finding interview on 21 December 2004 concerning the CCTV footage of 30 November. Mr Sharma had been advised in writing of the requirement to attend the interview, its purpose, the nature of the allegation and also advised that he could have an observer present. Mr Mita acted as Mr Sharma's observer. The interview was conducted by Ms Bail, Employee Services Manager and Mr Thompson. The interview was not tape recorded and there is a dispute between the parties as to the reason for this. A written summary of the interview was subsequently provided to Mr Sharma and he was given the opportunity to make corrections to the document (Exhibit 6 - Annexure C). However those corrections were not accepted by management.

17 Mr Sharma had raised concerns with Ms Bail about Mr Thompson's involvement in the interview process given complaints of racial discrimination, favouritism and harassment raised by Mr Sharma and a number of other Security Officers against Mr Thompson earlier that year, which had been investigated the Area Health Service Professional Unit. An investigative report clearing Mr Thompson had been provided to the Security Officers in on 19 November 2004 (Exhibit 1 - Attachment C). Mr Sharma was dissatisfied with the outcome of the report.

18 On 23 December 2004, Ms Bail had sought and been given approval by Mr Woodhouse to widen the CCTV investigation to include a review of footage over a two to three week period from 30 November to determine if there had been a "pattern of behaviour" and not just a "one off", and to also consider the mix of staff rostered on duty should more occasions of inappropriate usage of the CCTV system be found. Approval was given to review both the CCTV footage and security access control records for that period.

19 Mr Thompson reviewed the CCTV footage for a two week period and found what he considered to be inappropriate footage of the camera zooming in on persons and in particular female persons attending the Hospital on 30 November between 1800 and 2100 hours, 2 December between 2215 and 2340 hours and again on 9 December between 1740 and 2140 hours. The footage was copied onto compact discs (Exhibits 6a, 6b and 6c).

20 The Security Officers on duty on the relevant days and shifts were :-

30 November - Ned Veljovic, Veljko Rapic, Sanjay Sharma,2 December - Ricardo Palenzuela, Leslie Wormsley, Sanjay Sharma,9 December - Marwan Salah, Graham Croft, Sanjay Sharma.

21 Mr Thompson analysed the security access control system to the Security Office which indicated that Mr Sharma's key card was used to gain entry just prior to the camera being operated manually on each of these occasions. Mr Thompson's analysis of the manual use of the cameras, the date and time, the nature of the footage and the date and time of Mr Sharma ( and any other Security Officers during the relevant periods)

accessing the Security Office by key card was summarised in a table (Exhibit 6 - Annexure B). Mr Thompson also provided that information to Ms Bail and he understood that she then passed it on to Mr Woodhouse. The summary table as tendered also included reference to Security Officers on duty at the relevant times (including Mr Sharma) where they had accessed, by key card, other areas of the Hospital or indicated their location elsewhere in the Hospital as shown on CCTV footage.

22 A further Fact Finding Interview was held with Mr Sharma on 14 January 2005. Once again Mr Sharma received written notice of the interview, its purpose, the nature of the allegations and the opportunity to have an observer present. Mr Sharma was accompanied to the interview by Ms Susan Page, a HSU Organiser. Ms Bail and Mr Thompson again conducted the interview. In the view of the concerns previously expressed by Mr Sharma as to the involvement of Mr Thompson in the interview, Ms Bail offered the option of a third person being present to ensure the "integrity of the process and that proceedings were conducted in a fair manner". Mr Sharma indicated that he did not wish a further person to be present. Again there is a dispute between the parties about the issue of tape recording the interview. A written summary of the interview was again provided to Mr Sharma who sought to have further corrections and additions made. (Exhibit 6 - Annexure G). Those further corrections and additions were not accepted by management.

23 Mr Sharma noted on both sets of interview records that they were "not a true record of interview." A "File Note" concerning the summary documents, Mr Sharma's corrections and the reasons for rejecting his corrections was signed off by Ms Bail and Mr Thompson (Exhibit 6 - Annexure J).

24 Following the January Fact Finding Interview Ms Bail wrote to Mr Sharma on 25 January 2005 advising him that inter alia that " The Health Service has come to the conclusion that you are most likely to have behaved in an inappropriate manner and misused Health Service time and equipment on specified occasions." The specific dates and times were then provided ( some 8 separate instances over the dates of 30 November, 2 and 9 December 2004). Mr Sharma was advised that he was required to attend a Disciplinary Interview on 27 January with Helen Stewart, Director of Nursing and Support Services, and Mr Thompson. He was advised as to the purpose of the interview (the opportunity to respond to the findings and provide any relevant additional information) and that he could have an observer present. The interview took place on 31 January 2005 and Mr Sharma was again accompanied by Ms Page from the HSU. "Summary Notes" of that interview were attached to Exhibit 6 as Annexure M.

25 A confidential "Executive Brief" summarising the investigative and interview process, Mr Sharma's responses to the allegation, further evidence collected, Mr Sharma' previous work history, the findings and recommendations was prepared. The report was signed off by Ms Stewart, Ms Bail and Mr Thompson and forwarded to Mr Woodhouse. Mr Woodhouse wrote to Mr Sharma on 8 February 2005 enclosing a copy of the report and indicating that he had received a recommendation to terminate Mr Sharma's employment on the basis of misconduct. Mr Sharma was advised that he was required to attend an interview with Mr Woodhouse on 11 February 2005 and would be given the opportunity

to provide any additional information to Mr Woodhouse that he should take into account before making a decision on the recommendation. A copy of the summary notes of the Disciplinary Interview was also provided to Mr Sharma.

26 Mr Sharma was interviewed by Mr Woodhouse and Ms Bail in the presence of his HSU representative. Following the interview, Mr Sharma was terminated by Mr Woodhouse by letter dated 11 February 2005 which advised that his actions constituted serious misconduct. Mr Sharma was paid one week's pay in lieu of notice.

27 There were no other performance issues concerning Mr Sharma raised by the Health Service during proceedings. The "Executive Brief", under the heading "Previous Work History", indicated that "there are no documented performance issues or previous disciplinary action".

28 Mr Sharma worked from July to September 2005. He obtained a permanent position of Security Officer with a private Security company in February 2006 on similar remuneration to that received when he was at Fairfield Hospital. He was not happy in the position and still sought reinstatement to Fairfield Hospital.

The Evidence29 Mr Sharma deposed that everything was going smoothly in the Security area at the Hospital until Mr Thompson was appointed the Fire Safety and Security Manager. Mr Sharma had unsuccessfully applied for the position and when he approached management to know why he was unsuccessful he was told it was because he did not have the necessary management experience.

30 Mr Sharma deposed in some detail as to a number of issues and incidents that as the Union Delegate he took up with Mr Thompson over the ensuing period, such as Security Officers working on an improper roster, working through meal breaks, doing non-security tasks when other people were available to do those tasks, issuing of parking infringements, carrying out of mobile patrols by one Security Officer rather than two together etc.

31 Mr Sharma believed that those issues prejudiced Mr Thompson against him and that as a result, his involvement in the investigation leading up to his termination was unfair and improper.

32 Whilst Mr Thompson was very friendly and seemed very cooperative in the beginning, Mr Sharma believed his attitude changed when he brought the various issues to him. Mr Sharma deposed that after a period of time he noticed a change in Mr Thompson's behaviour. He started making allegations about Security Officers saying they were not doing their jobs properly etc. Mr Sharma also deposed that he felt that in many of the written memos Mr Thompson issued, the language was very threatening and demeaning to Security Officers and most memos finished with claims that if they didn't do as they were told "Disciplinary Action will be taken".

33 Mr Sharma deposed as to the events and concerns behind the complaints against Mr Thompson that were raised with the Area Health Service Professional Unit at a meeting organised by the Union in June 2004. They were told their reports would be investigated. Mr Sharma said that they asked that their names be kept secret. All Security Officers were to be spoken to individually and they were to be advised of the results of the investigation.

34 Mr Sharma maintained that Mr Thompson's behaviour did not change and that he took every opportunity to harass and bully them, especially Mr Sharma, who was sure that Mr Thompson was definitely after him and wanted to get rid of him.

35 Mr Sharma deposed that at a meeting in November 2004, Mr Christopher Mason, who had carried out the investigation, told them that Mr Thompson had done nothing wrong against anyone and that he had the full support of Hospital and Area management. Mr Mason said he believed that Security Officers were troublemakers and had suggested to the Area Health Service to rotate them by working them in other hospitals so they could learn how to behave. Mr Sharma said that he and the other Security Officers concerned were unhappy with the findings in the report. His name was first and at the top of the list of people who had lodged complaints and that was a shock to him because he believed the Hospital Grievance Policy clearly indicated that if anyone lodged a complaint against their manager or Department head they would be given protection and their name kept secret.

36 Mr Thompson deposed that at a meeting he organised shortly after his commencement in the Manager's position, Mr Sharma introduced himself and said words to the effect of "I cannot respect you as my manager because you are too young to be my manager". Words to that effect had been said to Mr Thompson on two separate occasions since his commencement in the position. Mr Sharma denied making those statements instead he said that they had had a conversation where respective ages had been asked and Mr Sharma remarked that Mr Thompson was younger than he was, that was all.

37 There were no references during the proceedings to the report prepared by Mr Mason (Senior Human Resources Officer - Industrial Relations). As noted above, it was attached to Mr Sharma's Affidavit.

38 Mr Mason detailed the background, the investigation and the range of persons with whom "interviews/discussion" were held covering both senior management (including Mr Woodhouse) and the Security Officers affected. The specific allegations made by the Security Officers were detailed and it was indicated that in each case "the allegation is not found".

39 During the course of his "Consideration", Mr Mason noted:

"It is apparent that the Fire Safety and Security Department at Fairfield Health Service is characterised by long-standing and often trifling disagreements amongst the Officers. The incoming manager's efforts to address performance, policy and procedural issues within

the Department are resented, resisted and sometimes sabotaged by the Security Officers.There is evidence to suggest that the culture of the Department is not entirely productive or receptive of change and that this culture is well entrenched."

40 Mr Mason made six recommendations including the possibility of rotation of Security Officers and the performance management of each of the employees as a matter of priority. He also indicated that the Security Manager required "practical and visible support of the Senior Executive of Fairfield Health Service in his endeavours to address the performance, policy and procedural issues identified within the Fire Safety and Security Department." He also suggested the participation in regular staff meetings by the General Manager to not only encourage attendance and participation at such meetings but also evidence the Health Service's support of the Security Manager.

41 In relation to the first Fact-Finding Interview Mr Sharma deposed that when Ms Bail asked him if she could tape-record the interview he refused on the ground that she had not given him any copy of the tape or documents of a previous Fact-Finding Interview (held earlier that year in relation to an issue with a Wardsman). He said she kept insisting that the interview be taped and he kept refusing unless she agreed to give him a copy then he would allow the taping of the interview. Ms Bail told him it was against Hospital policy to give a copy of the tape to an interviewee. Mr Sharma deposed that Hospital policy did allow either a transcript of an interview if not recorded or a copy of the tape if recorded.

42 The summary notes of the interview (Exhibit 6 - Annexure C) simply note that Mr Sharma, in response to the request that the interview be taped, said he did not want it to be taped with a notation that he raised concerns about how accurate the summary would be. Again taping the interview, to ensure an accurate record, was offered and again refused. In Mr Sharma's handwritten corrections of the interview record which were forwarded to the Health Service subsequently, Mr Sharma had approximately half a page of corrections indicating the verbal exchange between Miss Bail and himself over whether he had received a copy of the tape or documents of the earlier interview. There was no mention of any refusal to provide a copy of the tape or that provision of such copy was contrary to policy.

43 In cross examination Mr Sharma acknowledged that in those corrections he made no mention of Miss Bail refusing to give him a copy of the tape because it was not Health Service policy. Mr Sharma maintained that he had made many corrections to the summary document and he could not be expected to cover every single correction that needed to be made.

44 Ms Bail asked the questions during the interview while Mr Thompson made notes. Mr Sharma also made extensive notes writing down questions and his answers briefly.

45 Mr Sharma deposed that he emphasised in the interview that it wasn't only Security Officers who knew the operation of the CCTV, other people could also use the camera because there was no restriction placed on its use. When he asked about a CCTV policy

Mr Thompson answered that they were drafting one and did not have a policy yet. Mr Sharma also indicated that he asked questions about the camera operation in the Emergency Department which was on automatic mode, this was because he maintained that what they showed him on the monitor during the interview was "nothing bad" in his opinion and the way that the camera was zooming in and out was the same as the camera in the Emergency Department.

46 During the interview Mr Sharma took Ms Bail and Mr Thompson down to the Emergency Department to show them what he meant by the camera zooming in and out on patients sitting in the Department. This was programmed automatically by Mr Thompson. Ms Bail indicated there were signs to let people know this was happening and they could choose to sit somewhere else. Mr Sharma maintained they did not accept the point he was seeking to make.

47 The summary notes indicated that Mr Sharma was asked an extensive range of questions during the course of the interview. He was shown the footage of eight separate incidents of manual operation of the camera on 30 November He generally denied that he had used the camera manually. He knew how to operate the camera manually but not how to zoom. He did not observe anyone else using the camera manually on the night shift of 30 November.

48 It is clear from the interview that whilst he initially indicated that the footage wasn't too bad, as the footage progressed he made comments indicating it was worse. He could only see one that was bad, he couldn't see a problem with the others he was shown.

49 He was told that the footage was viewed as grossly inappropriate and indecent, that other evidence collected during the investigation was to be considered to decide if further action was required and also what disciplinary action could result.

50 Mr Sharma asked a range of questions about who had made the allegations and who had carried out the investigation and was told he did not need to know that information and could not be told who had made the allegation. Mr Sharma maintained that this was part of the unfairness of the procedure that was applied to him.

51 Mr Sharma deposed that before the second interview he wrote to Miss Bail asking her to remove Mr Thompson from the interview but got no reply, the Union Organiser also tried but received no answer. Mr Sharma maintained that it was contrary to Health Service policy to have a person involved in the allegation conducting the interview.

52 In the summary of the second Fact-Finding Interview when asked if he agreed to have the interview taped he indicated "no" - "for the same reasons as before". Mr Sharma made no corrections to that section of the summary document.

53 Mr Sharma deposed that he had already seen the footage of 2 and 9 December because he had seen Mr Thompson "burning" a copy of the footage in the Security Office while he was out of his own office. When they started showing him the footage he did not pay

attention because he had already seen what they showed him. He was busy writing on his notepad about their questions and his answers.

54 He also maintained that he told Miss Bail that someone else had done illegal things with the camera but he didn't want to say anything in front of Mr Thompson and said he would tell her later on. He was concerned Mr Thompson would find ways to get around his "revelations".

55 In relation to the 2 December footage, he maintained he was in the South Car Park at that time doing his static duties between 2200 and 2300. (There was a handwritten correction of the summary notes to the latter time to 2330). This was also confirmed in cross examination (after some initial confusion and suggestion that he was in the car park for the entire shift). He also maintained it was not possible to get from the car park to the Security Office in two minutes and suggested that the time shown on the camera monitor was incorrect and that it was known that the camera time could be out by up to a minute. He raised the possibility of someone else having a card like his.

56 Mr Sharma deposed that he answered all questions as honestly as he could and did not know what sort of answer was expected from him.

57 In cross-examination, in response to general questions on the use of the security cameras, Mr Sharma initially indicated that he could not say what was the purpose of the person operating the camera but did ultimately acknowledge that a Security Officer who did not use the camera for a security purpose but rather for a personal purpose, then that would be improper use of the camera. He also agreed that whoever did that was necessarily potentially placing the welfare and safety of patients, staff and other employees at risk. He also agreed that if a person used the camera to focus on, particularly the breasts of women in the hospital grounds, that would be an improper invasion of the privacy of visitors to the hospital, if that were done. Mr Sharma qualified that by saying that the same thing (invasion of privacy) would apply for everyone, staff and other people as well.

58 Mr Sharma also confirmed in cross-examination that before the first interview he was not aware of the icons that showed up on the screen when the camera was taken off automatic mode, operated manually and used to zoom. There was also reference to the icons in the second interview.

59 In both interviews it is apparent that Mr Sharma was asked an extensive range of questions about the footage in question. He generally denied that he had manually operated the camera and had not seen anyone else operating the camera. He queried what proof they had that he had operated the cameras and was told he was the last person who had gained access to the Security Office by key card prior to manual operation of the cameras. He queried who had accessed the office prior to that.

60 During the Disciplinary Interview with the Director of Nursing, Mr Sharma told her that on 2 December he saw Security Officer Wormsley watching Security Officer

Palenzuela on camera and deposed that that was at the same time they alleged he used the camera. He also informed her that Security Officer Wormsley had shown him girls on the camera on two occasions and encouraged him to use the camera. She said that whilst the points he had raised needed further investigation she would still go ahead with this matter, make her judgment and inform the General Manager as to what action to take against him.

61 There was extensive cross-examination of Mr Sharma covering the three interviews he had participated in as well as the CCTV footage of the three dates in question. (Exhibits 6a, 6b and 6c). His responses on the main relevant issues traversed can generally be best summarised as follows:· He did not manually operate the security cameras to inappropriately zoom in on visitors ( especially females) to the Hospital as alleged on the specific instances referred to.· Whilst he agreed that the camera had been diverted from its intended purpose and used to zoom in and focus on some women and for some minutes at a time he was unable to say for sure that it was a close-up of their breasts or crotch area.· He did not know how to zoom the camera. If he saw something happening on the camera he would usually go to the site himself and take his colleague with him and deal with the situation that needed to be dealt with.· No training about operating the security cameras had ever been given to Security Officers. There was no policy on the CCTV system in place. · He had never lent his key card to anyone else. Whilst he had lost it (dropped it) on two separate occasions he had found it again within minutes.· Whilst he believed it could be possible for someone else to have a key card like his, he did not know if that had in fact happened. · More than one Security Officer might go into the Security Office when the door was opened by use of a Security Officer's key card.· He did not see any other Security Officer using the camera manually whilst on the three shifts in question.· Other Security Officers had access to the keys to the Security Office.· He queried how they could allege that he had manually operated the cameras. Anyone could just walk into the office and start zooming in and out. An individual password was needed to access the computer for e-mails but anyone could access the cameras.· He was aware that one could search through CCTV footage of earlier shifts and this had sometimes been necessary to assist Police etc. in enquiries.· He believed he had been "set up". The transcript of the interviews was also written by people who wanted to set him up.· After his termination he had gone overseas and he had done research there and in Australia and he had spoken to various people who had worked in this field who told him it was possible for another person to remotely access the cameras with a small monitor. He agreed he had no proof that someone had operated the cameras remotely.

62 Mr Sharma was also taken in detail through Annexure B to Exhibit 6 - (Mr Thompson's summary table) and relevantly responded as follows:· re: 30 November - 18:0:1 Veljko access to office, 18:0:2 camera used manually - Mr Sharma queried that Veljko could have done it and that nothing showed him entering and

how would they know he did. He was not in the office. He agreed he could have walked in with him but could not recall doing that.· re: 18:54:04 - Sanjay access ED. During an exchange between the parties and the Commission it was established that the ED is approximately 10 to 15 (at most) paces away. 18:54:16 camera used manually.· re: 20:42:49 - Sanjay access office; 20:44:13 camera manually operated. 20:45:31 Sanjay access ED; 20:46:50 camera used manually. Mr Sharma said it was just coincidence that the camera was used manually within one minute of his access to the office. He could not say who was doing the manual operation. He agreed that if he walked into the office he would be able to see whether there was another person sitting at the monitor· In relation to certain specific instances on 9 December (18:00:15) Mr Sharma responded that he would have to have been "a very quick person" to get in the office, shut the door, sit down and start moving the camera around in 45 seconds.· He generally indicated that there must have been someone in the office before he went in. He didn't stay in the office if there wasn't someone to talk to. If he was in there he would just check his e-mails, log in and if there was no-one in there, just walk out again. He would be seen more in the foyer or walking around the Hospital than in the office.

63 Mr Sharma also indicated that there was a small clear glass window next to the door to the Security Office and that it was possible, when one approached the door to open it, to look in through the window and see if there was anyone in the office.

64 Mr Sharma queried the CCTV footage and the summary report prepared by Mr Thompson and the fact that there were a few occasions in the report where he actually was not present in the office and the camera still zooming on people or objects. He could not see any reason for his termination if they were basing their termination on this evidence.

65 He also raised a query about the Security Manager's office adjacent to the Security Office. When the door was closed there was no way of knowing who was in that office. The Security Officers did not have a key to the office and did not know how to get in when it was locked. How did he know there wasn't someone in the office checking on his movements? Mr Sharma said that this raised the possibility of someone sitting inside and then when he came to the office and then left, that person then came out, played with the computer and went back in before Mr Sharma returned.

66 Mr Sharma also queried the procedural fairness of the Health Service refusing to accept his corrections to the summary notes of the interviews and simply saying he was wrong and they didn't except any additions or any mistakes and that was it - it was their decision and he was sacked.

67 Mr Magpayo related an incident which occurred in mid 2004 when another Security Officer, Mr Reynolds, ( at the Hospital for a 3 to 4 month period) was manually operating the camera and using it to zoom in on women and was making comments to a Supervisor

who was also watching. Mr Thompson was standing nearby and just shrugged his shoulders and smiled.

68 Mr Magpayo said that it was normal for people to use the cameras manually, he had seen other people use it when the office was occupied by other staff. He had seen staff use the cameras to focus on their own vehicles in the car park. However he acknowledged that that occurred in the old Security area when it adjoined the Administration office. The incident with Mr Reynolds also happened in the old Security area. He had also seen Mr Thompson operate in the cameras on plenty of occasions but he could not see what he was doing because he would stop as soon as Mr Magpayo came in.

69 He also maintained that there were various problems with the way the CCTV cameras operated. If anything was wrong with the cameras they always informed the Security Manager by incident report or by phone. He was the responsible person to fix the problem. However he confirmed that all staff were aware that there was a CCTV system in place and that its purpose was to assist in providing for the safety and welfare of patients, visitors and staff of the Hospital.

70 He agreed that when the camera was not used for an official purpose such as are being used to look at ladies then it was not being used for a proper purpose.

71 Mr Magpayo also said that that there was another way to get into the office apart from using the swipe card and that was by use of a master key. Two Security Officers on duty work in a team and one carries the master key at all times and hands it over to the next shift. The key was obtained from the Security Department. There were no procedures about writing in the log book that the key had been received. However he went on to say that there were two keys, the one held by Security and one held at the main reception office, not in the Security Office. It could be accessed by the Security Manager or the Unit Manager.

72 It was Mr Mita's evidence that when he accompanied Mr Sharma to his Fact Finding Interview he could see "much similarity" between the footage Ms Bail showed them and the camera zooming in and out of people in the Emergency Department which Mr Sharma showed to prove his point. Mr Mita had also noticed on his shift that various cameras around the Hospital were zooming in and out of people without their knowledge.

73 He said he saw Mr Thompson checking Hospital staff members, especially Security Officers on CCTV monitors, many times during his working time, he was not aware of why he was doing that. He knew many people in the Hospital can and have used the system in front of him and those people do not work in the Security Department.

74 There was also no restriction placed on who could use the CCTV system and any one could walk into the Security Office with the Security Officers and use the cameras. He also observed many times that Security Officers walked in with each other into the Security Office without showing their key card to the card reader.

75 Mr Mita also deposed as to his opinion as to Mr Thompson's "hate" towards people in the Security Department from a non-English speaking background. He considered Mr Sharma was doing a good job as Union representative getting Security Officers their rights and that he was not a "favourite person for Mr Thompson."

76 He believed that the allegations against Mr Sharma "to use the CCTV system inappropriately and invasively were not entirely true".

77 Mr Mita acknowledged that he knew how to use the cameras but maintained they hadn't been actually been shown how to use them. He was aware that it was possible for someone to take the zoom camera off its rotation and use it to focus on a particular place or person. He also acknowledged that if a person was using the camera improperly then they wouldn't be doing their proper job.

78 Whilst Mr Mita could recall that during the Fact Finding Interview Mr Sharma was asked if he wanted to have the interview taped and he said he didn't, he couldn't remember the reason given, it was too far back.

79 Mr Mita said he had never focused the cameras to zoom at in and out on women or girls.

80 The evidence of Mr Woodhouse (Exhibit 5) generally concerned the chronology of events, commencing with the report to him by Mr Thompson in October 2004 and leading up to the termination of Mr Sharma, in which he was involved. Those factual events are detailed in the background and chronology above.

81 Mr Thomson's affidavit evidence (Exhibit 6) was also substantially concerned

with outlining in detail the CCTV camera system in operation at Fairfield Hospital, the nature of his investigations into its misuse and the interviews in which he attended involving Mr Sharma. That factual material is also largely summarised in the background and chronology above.

82 Additionally Mr Thomson deposed as to his lengthy background in Security work and related functions.

83 He confirmed that, from the key card access records (Exhibit 7), the new Security Office was opened by 16 September 2004 and that access into the Security Office was only by key card.

84 He acknowledged that there was also a key that could be used. However that was a master or a sub-master key system which was in use and he made steps to limit that and remove that from general access to the Security Officers about the time of the new office opening. He believed they were in the new office for a short period of time before they actually removed those master keys from general access. He thought they would have been removed by December 2004. There was a sign-out system for all those sub-master

keys and a Security Officer could only get into the office without using a swipe card, if he had signed for that key from the switchboard. The key was kept in a lockable cabinet at the switchboard (manned 24 hours a day) and the protocol was that the staff person at the switchboard would remove the key for the Security staff but they had to sign the log. Mr Thompson only had a personal key for his own office, he had to use a swipe card to get into the Security Office just like the Security Officers.

85 Then were two keys in existence for Mr Thompson's office, one was currently held by the person acting in that position and a spare key was held in another locked cabinet at the switchboard which required two keys to open it. One of those keys could be signed out by the Security Officers but the second key was held by the after hours Manager of the Hospital. Both people must be present to open the cabinet to sign for that key.

86 Mr Thompson also indicated that the disks (Exhibits 6a, b, c) showed what were the recorded images on the cameras on 30 November, 2 and 9 December and he did not have the capacity to alter or change what was recorded when he was burning that material.

87 Mr Thompson acknowledged in cross examination that he had no formal qualifications or academic training in the use of CCTV. He had a strong working knowledge through his extensive career in Security and the positions he had held in monitoring for monitoring companies. He had received on-site informal training from technicians who had come to the site to install or repair equipment.

88 The General Manager allowed him to get the footage out of the CCTV system which he did over a period of a week because when Security Officers would enter the office he would stop what he was doing. No one was present when he reviewed the footage and burned the relevant footage onto the disks.

89 Mr Thompson had not observed any malfunctions in the CCTV system since he started in Fairfield Hospital, apart from the period of time where he observed that the cameras appeared to have been moved into obscure locations.

90 A Security Officer could enter the Security Office by signing out the master key from the switchboard but he had discouraged this and advised all Officers they were to use their swipe cards. This was raised several times at staff meetings and also circulated, he believed, by a memo. He believed the Security master key was removed shortly after they moved into the new office. He recalled that because he was aware of instances where Security Officers had entered the office without using their swipe card.

91 The pre-programmed scan of the cameras was established by the technicians at the time when they were installed. However Mr Thompson also had programmed some of the tours, for example after a power failure or something similar and there was a need to reprogram it. It was then programmed back onto an automatic tour and then operated automatically from that point on. No changes had been made to the original programming. The scans covered the areas of greatest need or greatest risk. The camera were either programmed by the technicians if they were installing a new camera, or

coming out to repair a camera, or by Mr Thompson, he had the knowledge to program the cameras to an automatic tour.

92 When a camera was used manually it not go back to auto programming by itself at the time of the incidents concerned. They had since changed the programming so that it did go back onto automatic mode.

93 Mr Thompson acknowledged that there was a design flaw in the installation of the camera in the main foyer, at that time, in that it did not cover the entire floor space of the main foyer. It did not cover the door to the Security Office, the door to the Cashier or the door to the General Practice Unit. They could only tell who had accessed the Security Office by the swipe card.

94 Security Officers were aware they could actually bypass that camera without being seen, by coming out of the Security Office, walking close to the wall and around past the main doors underneath the camera. They had now resolved that and installed a new camera so that it did cover the entire floor space and there was not that security breach.

95 Mr Thompson acknowledged that there was no Security camera in the Security Office and further that there were no hidden cameras at Fairfield Hospital.

96 Mr Thompson also said that in relation to the first incident noted on 30 November that he was not sure that Mr Sharma had used the camera and that incident was then not recorded as one of the times which was set against him in the report.

97 When Mr Thompson was questioned further about this incident where the report showed Mr Sharma walking towards the Security office but not accessing it by swipe card and how it could be explained that the camera was used manually, Mr Thompson indicated that he was aware that Security Officers were not securing the door correctly and propping it open to avoid using their card in the belief that Mr Thompson was monitoring their comings and goings from the Security Office. However he could not say that in relation to that particular incident, that the door was propped open. He could advise that he had himself found the door propped open on numerous times when he had come into work.

98 Mr Thompson indicated that only Paycom could access the camera remotely. They could not access the live images or the recorded images they could only access the operating system of the software. Mr Thompson acknowledged that if Mr Sharma left the office and he did not close the door correctly then it was possible that another Officer could enter without using their card and then perhaps use the camera manually.

99 Mr Thompson was also taken in some detail through the report of the specific incidents concerned, during the course of which he indicated that there were other occasions where the cameras had been used manually and there was camera footage of the other Officers outside of the building. There was not in the document anywhere

where Mr Sharma was shown in the same situation as being somewhere else when the camera was being used manually.

100 When questioned about the manual use of the camera between 18:25:20 and 18:44:55 (30 November) he acknowledged that there was no access to the office shown for Mr Sharma.

101 The Commission questioned Mr Thompson about the period between 18:54:04 and 19:15:00 where the report showed at 18:54:00 Sanjay access on ED waiting room then at 18:54:16 to 19:15:00 the camera being used manually, that on the face of that, it would not appear to be Mr Sharma. Mr Thompson said he could not say whether it was or not but indicated it was possible that Mr Sharma may have swiped his card in the Emergency Department and "doubled back" under the camera. He conceded that the cameras did not show any footage of any Security Officer trying to sneak under a camera.

102 When the Commission pointed out that one only had 12 seconds to get back in that example, Mr Thompson responded that during the investigation one of the things they looked at was the accuracy of the times on all the systems and he believed they found there was approximately a minute, at the most, difference between the reported CCTV times and the access control times. He did not recall the exact details, it was on the report they got from the IT Department about the access control. Mr Thompson did not consider this one minute difference to be a malfunction of the camera.

103 Mr Thompson denied that he had ever tried to look at Security Officers or other staff on the cameras.

104 After Mr Thompson discovered the inappropriate or invasive CCTV footage concerned he did not did not report this to the Security Officers under his guidance, he reported it to the General Manager because of the seriousness of what was concerned. He did not send out any memo to Security Officers or raise at staff meeting that there was inappropriate footage from the cameras. The General Manager issued directives to look into the matter and then commenced the process for reviewing the incidents and what had occurred.

105 Mr Thompson said he considered it was a serious breach and an inappropriate use of the equipment but had no pre-conceived ideas on what had occurred or who was responsible.

106 Mr Thompson indicated in relation to the other person appointed to assist in the investigation this occurred at the time they were looking at the system and what had been done to the positions of the cameras.

107 Mr Thompson said he did not generally review the footage of the cameras on a daily basis but on this occasion in October when he first noticed the cameras in the wrong position or not automatically tracking, he initially fixed them and then reviewed the footage.

108 He agreed that it was possible that a person could access the Security Office

if the door was left ajar and use the camera system, but they would have to have a knowledge of how to change the relevant camera, not simply just grabbing the joystick and moving it. If a person using the camera wanted to change it from what was showing on the screen (e.g camera 1 instead of camera 4) then they would have to press a series of buttons to change the programming of the keypad to align with camera 1, and the joystick would then be used to manually control the camera. The manual control of the camera is recorded on the footage but no logging of the keystrokes is made.

109 Mr Thompson acknowledged that he was aware of the complaints made against him which were the subject of an investigation by the Professional Practice Unit, he had received a copy of the same report that all the Security Officers received. It did not include the names of the specific allegations and who had lodged the allegations but showed a list of the names of persons that were interviewed, including himself. He was not aware that Mr Sharma was one of the complainants. His recollection of the report was that Mr Sharma's name, along with other names, was listed as persons that were interviewed by the PPU.

110 The General Manager, in conjunction with the HR Manager, had asked Mr Thompson to do the Fact Finding Interview of Mr Sharma.

111 To Mr Thompson's knowledge Fairfield Hospital and Liverpool Hospital were the only Health Services operating the same Paycom system. Liverpool Hospital employs a full time Security Technician responsible for maintaining and servicing the CCTV system along with other security systems.

112 Mr Thompson acknowledged that there were times when the system (the cameras) could be used to observe persons where there was a reasonable suspicion that they were doing something illegal or unsafe that required Security's attention. In assessing the footage concerned as to whether there was an appropriate use of the system he reviewed the shift log books to see if there was anything reported in there regarding suspicious behaviour, a safety risk, or a security breach. To his recollection there was nothing reported on those logs which would still be available in the Security Department and on the security incident data base.

113 He believed that the footage in question, based on his security background, did not meet any of those categories and therefore they were an inappropriate use of the system. Even if a person was acting suspiciously there was no need to zoom in on a person to the point where you zoomed in on breast areas, and buttock or groin areas of that person.

114 Mr Thompson indicated that no formal training had been provided to Security Officers on how to use the CCTV system, however at several staff meetings he raised the question about Officers' abilities, or lack thereof, to use the system, and asked any Officer

that was unfamiliar with the system to approach him for training. No officer approached him advising they required further training.

115 He believed they all had some knowledge of how to use the CCTV system. Since he had commenced at the hospital he had observed Officers being able to use the system in some fashion. He had never observed anything inappropriate in what they were doing and if he had he would have taken appropriate action at the time.

116 Mr Thompson could recall an incident where a Security Officer on secondment from Fairfield Health Services had used a camera to focus on the North Car Park when three youths were attempting to vandalised cars. He was using the camera in the right way and was authorised to do so. Mr Thompson responded from the office to attempt to apprehend those people.

117 Security Officers were authorised to use the cameras during their shift, provided they operated them appropriately. There was no standing instruction or standing order requiring them to log any occasion where they were required to take over manual control of the camera because of a particular incident. However he had instructed all the Officers on numerous occasions in shift logs, to log all occurrences they were involved in. A separate system referred to as the security incident data base was kept. Whilst he wouldn't expect a incident report to be completed, he would expect a notation in their shift log of something that had occurred.

118 Mr Thompson was questioned on why he had not devised a policy on the CCTV system as was in operation with other public service employees. He responded that he came it into his position it was to a Department that had not had a manager prior to his arrival. He found the policies, procedures and daily operations to be in complete disarray and it took him a long time to systematically go through those matters to try and bring the department up to a suitable standard. It took time to go through each and every single policy and he had not at that stage got to a CCTV policy just as he had not got to a number of other policies.

119 Mr Thompson agreed that after these incidents he had placed restrictions on the CCTV system however that was not because he was waiting for something to happen. Following the incidents he and another employee of the Health Service conducted a review of the systems in place and obtained advice and quotations from Paycom as to how they could further secure the system to prevent this kind of misuse. Following that they acted and installed a card reader so that an Officer cannot just walk into the office and operate the cameras they must swipe their access card first which will then give them access to the system.

120 Mr Thompson acknowledged that two years had passed in which to devise a policy and place restrictions on the CCTV system but indicated that he had a number of other duties and responsibilities to carry out in his combined role of Fire, Safety and Security Management and it took time to review processes and policies where there had been no previous documentation or reports available.

121 Mr Thompson also agreed that there were other areas in the Hospital that required access by an access card. Also there was a monitor in the Security Office which logged all the entries in the computer but entry to the office was not shown on that computer. He explained that that was because Fairfield Health Service operated two systems. The original system was provided by Siemans and the new system by Concept. Due to unavailability of parts and service for the old system, in any refurbishing of an area such as the ICU and the Security Office that area was placed on to the new system. Progressively the existing Siemans system would be phased out.

122 The transaction history for the key card access to the Security office is on a system housed in one of the communication rooms in IT on one of the main servers. Mr Thompson could also access that from his office and IT staff could access the communication room. Security staff could only access the communication room if they signed the key out.

123 Mr Thompson acknowledged that when he commenced duties there was a report concerning Security Officers illegally having sets of master keys. The matter was investigated but that could not be substantiated and there was no evidence from the investigation that they either had access or had in their possession illegal master keys. At that time changing the locks of the Hospital system was discussed with the General Manager but the cost was exorbitant. They did consider other options.

124 He had not received any reports of a Security Officer observing another Security Officer using illegal master keys. He agreed that Mr Sharma had raised that question with him but said Mr Sharma did not provide him with any evidence or advise him that he had personally witnessed that occurring.

125 Mr Thompson indicated that he was certain that the data provided was accurate. It was generated from the system and as far as he was aware that the system could not be accessed and could not be changed. The system was housed on a server which are was further password protected.

126 In response to a series of questions from the Commission, Mr Thompson also indicated that he prepared the swipe cards and logged them into the system for new employees. There was one other person from IT who was able to do it if he was absent. The cards were provided pre-encoded with the number. He simply added the name to the system so that the card was activated and secured, in his office. It was able to be used on the system provided it was given access to the various areas. The system would also notify them if they try to generate a duplicate card number or duplicate card name. The system would not allow that and would indicate that the person already had a card number.

127 Mr Thompson also explained the process he had undertaken to download the images from the cameras for the dates in question. The images were downloaded onto a portable device because the system was not capable of burning directly onto CD or DVD. It was then taken to his office and burned in his office. He reviewed the footage prior to

downloading it to a portable device, reviewed at whilst he was burning at, reviewed after he had burnt at, and reviewed at all these proceedings. It was not possible that the images were downloaded by portable media device by someone else. He had no reason to believe that the images showing up on the screen as being from the cameras had been put there by any means other being from the actual camera in question.

128 They had also sought clarification from Paycom regarding the possibility of the darts are being tampered with. The advice was, that if the system was tampered with at all, it destroyed the data. Images could not be inserted or deleted without destroying the entire thing. The Executive Brief actually covered the fact that there was no third-party software installed on the system.

129 Mr Thompson was not aware who had prepared the actual Brief itself however he read it, agreed with it and signed it. Based on the processes that were conducted he agreed with the Executive Brief and the recommendations it contained. The decision however was the General Managers. He also indicated that the incidents referred to in the Brief in the table on page 4 only included those occasions when Mr Sharma's card was accessed and what consequentially occurred. He agreed he was anxious to exclude any instances where there might be doubt or it wasn't expressly proven that Mr Sharma had, by electronic record, been in the office.

130 A number of other security officers were interviewed as part of the process. After reviewing all the information from the CCTV and printouts they were not able to establish that any other Security Officer was also carrying out any improper activity. He went on to say that there were several occasions when the other Officers on duty with him, at the time those images were being recorded, or the system was being operated manually, were actually observed in the footage in other parts of the Hospital therefore they could not have been in the Security Office at the time. The frequency of the use of the cameras inappropriately, combined with the lack of evidence of Mr Sharma being elsewhere in the Health Service, pointed to him being most likely the person to have been operating the cameras manually at that time.

131 However he agreed he could not be one hundred per cent certain. He also agreed that there was a possibility that there was someone already in the office as well, however the other officers on duty had also been observed in other parts of the Hospital on occasions and he gave examples of those instances.

132 The report prepared by Mr Thompson (Annexure B) was generated during the disciplinary process and before they commenced interviewing employees. It was generated as a summary of what Mr Thompson had observed combining a number of systems to get a timeline.

133 The only reason Mr Thompson was aware of as to why Mr Sharma was not provided with the document was because he had used a number of reports to give a timeline or sequential occurrence of what had occurred over those states. He did not believe it was relevant to Mr Sharma to have access to that document for the purpose of a fact-finding

process. He believed the document was provided to the General Manager but could not recall whether it was.

134 Mr Thompson also indicated that the PTZ cameras could be programmed to automatically zoom but not in a fashion that was seen on the occasions in question and the cameras could not follow a person or track a person at will. It was not possible for Mr Thompson or anyone else in the Area Health Service to program the cameras to track and follow an individual person. It was impossible for a camera, on its own, to follow a woman around in the manner shown on the footage.

135 Mr Thompson also said that trust and confidence in a person employed as a Security Officer was an essential part of the relationship between the Area Health Service and that Officer and that a Security Officer's position was peculiarly and particularly one of trust and confidence more than an ordinary employment relationship. They now employed a number of Special Constables both at Liverpool and Fairfield and those officers took an oath of office and were required to have the highest standards in the discharge of their duties. He acknowledged that at the time of employment of the Officers at Fairfield it was not compulsory to be a Special Constable but for new applicants now they were requesting that they were eligible to be so appointed. That was also consistent with practice at Liverpool Hospital.

136 Mr Thompson had no personal reason for wishing to see Mr Sharma dismissed nor did he have any animosity or dislike towards him. He also denied that he hated Mr Sharma and wanted him out. He did not wish for Mr Sharma to leave the Service. His wish for all employees was that he could elevate the standard of work performance to a higher level than was currently there as he was striving to do at Liverpool.

137 He would not be able to have a level of trust and confidence in Mr Sharma if he were to be an employee of the service again.

Submissions138 Mr Sharma submitted that there were many flaws and unfairness in the investigation against him held by the Fairfield Health Service which may be summarised as follows:· Mr Thompson who was involved in the investigation from the start was biased against him because of a report by Mr Sharma and six other security officers about his discrimination and poor management style as detailed in his affidavit.· Despite his repeated requests that Mr Thompson not be present in the investigation he was allowed to stay. There were many other people in the Health Service who had expertise and knowledge of the CCTV system that could have been brought in to do the investigation.· He made amending corrections to the summaries of the Fact-Finding Interviews after checking with the people who were present in those interviews but Fairfield Health Services simply refused to take those corrections into consideration before making their decision.· The decision was made before he gave his corrections to them and according to their policy that was not right or fair. He was not given a chance to speak on his own behalf

and say what he wanted to say.· He had observed Mr Thompson himself checking Security Officers on cameras after they finished their duty. He had complained but no one would listen to him. How could Fairfield Health Service bring allegations that checking women by some other person, whoever it was, was inappropriate?· The Health Service talked about the position being one of trust and that he was not doing his job properly, however they failed to describe the good work he had done in Fairfield Hospital in the six years from 1999 until his termination. It was true that he didn't have any previous record of disciplinary action but they should have praised his good work as well.· If he had committed wilful and gross misconduct why had not the Police been involved in this matter? The Police were not informed and he would like them to be called to do the investigation and bring out the truth.· The allegations and paperwork were not conclusive and not brought by a person who had experience and expertise in CCTV cameras and their system.· It was mentioned that two Security Officers said something negative about him involving looking at women but despite his repeated requests he was not told the names of these persons or shown any statements by them. They were not brought to court. He had the right to know who had brought those allegations against him.· Mr Thompson was biased against him but he was the one who brought the allegation, the one who investigated the allegation and the one who recommended his termination.· He asked to be given a copy of the tape of the Fact-Finding Interview. They did not even rightly put that down in their summary. When he requested that they simply and flatly refused and said he had no right to the tape and they would give him a summary. He was denied his basic right to have the interview taped which was contrary to their policy.

139 Mr Sharma also raised the relevance of the Workplace Surveillance Act and whether the Fairfield Health Service was allowed to bring the footage and card entry records because electronic devices could not be used for disciplinary purposes. They had based their investigation on the footage and the card entry records of himself and other people. He had doubts about this footage.

140 While he was aware that on the three occasions of the footage he was the only person present on all those days, he had no choice, that was his roster. He did not choose to work that way.

141 It was also said that these activities were of a sexual nature. If Fairfield Hospital had come to the conclusion that he liked to look at girls why would he do that through a camera? The office and where the footage was showing was 20 steps away. If he had that intention he could just go outside and look at them face-to-face. He had no restriction placed on him that he could not go outside of the office or could not roam around, that was the Security Officers' job. Why would a person in his "real" (sic) state of mind review this type of activity on a camera? Fairfield Hospital had failed to establish this because he had no history or record of any activity in the past like this.

142 It was simply disgusting to say that a person who is married with three children would do this thing on a camera. It was the people who were so guilty and discriminatory towards himself and people of ethnic background that had brought this matter this far that did this type of activity. They had put his name in mud. He lived in the local area and could not even go to the Hospital if his child was sick. He was respected by visitors because he lived locally. When he was asked by they don't see him at Fairfield Hospital any more he had no answer.

143 Mr Thompson had said that he didn't have any trust or respect for him any more. Since he left the hospital he had gone to get a job. To get a job you have to have some references. He was still receiving references, not from Fairfield Hospital, but from other people because he was of good character. They trusted him and had faith in him and knew he was a good worker and he was still able to get a job. However the first three months was very difficult and he had had a lot of personal problems.

144 Mr Sharma emphasised that he was not accepting any guilt but suggested that even if he had done something like that he deserved at least a warning on the incident, given his record and his good work. He should have been given a warning, if they established the facts, not to do it again or he would be out or something similar. No counselling was provided and he was not told by anyone what the appeal was to other people. He wanted to appeal because he knew from the beginning that since Mr Thompson was involved in the investigation it was not going to be good for him.

145 He had been a very active Union Delegate pursuing the rights of Security Officers. There were a number of things that happened. He tried to talk to Mr Thompson and was told by the Union Organiser that he had to go through the proper channels, the Personnel Manager and if they didn't listen to him to go to the Head of the Department and if they didn't listen to go to the Union and they would do something about that. He had actually started doing this before Mr Thompson started at the hospital. He had nothing personal against Mr Thompson, he was bringing these things because he was the Union Delegate and people wanted him to do this.

146 Mr Thompson had said that since he started in the hospital there was slackness in the Security officers. Mr Sharma said that if Security Officers were not doing their job properly that put a big question mark on the management of Fairfield Health Services who were running the hospital before Mr Thompson. They had a Security Officer in Charge as manager and Security Officers were doing the job properly. There were no reports and no complaints against Security Officers but since Mr Thompson started he kept looking for excuses to call him into his office saying he was not doing this or that and he was going to take disciplinary action against him. He found the workplace very stressful as a result.

147 Nobody would listen to his complaints. No investigation was held. Nobody tried to establish the facts. Even seven of the 11 Security officers working at Fairfield Hospital went to the Area Health Service to report against Mr Thompson. They did not bother to

come and interview them but were told their names would not be disclosed and they would be interviewed to establish whether Mr Thompson's management style was wrong or he was not treating people fairly. What happened was they put the report in, in June and on November 19 they got the reply that Mr Thompson did nothing wrong then after the 30th of November he was receiving a letter that he was involved in inappropriate and invasive camera footage and was required to attend a Fact-Finding Interview. Mr Sharma believed they were waiting for the investigation to finish so they could get him.

148 He had always stood up for his rights and complained about Mr Thompson not because he didn't like him or had something against him or didn't like that he got the Security Manager's job.

149 Mr Sharma believed they were a lot of malfunctions in the camera and the cameras were not working at times. The cameras could go blank but not because people were playing around with them but because there was a malfunction with the camera.

150 Mr Sharma maintained he was the only person in the Hospital or Area Health Service from a non-English-speaking background representing people of the Hospital as a Security Officer and he did not think it sat well with some other people who ran the show for the Union at the Hospital and with the management, especially Mr Thompson.

151 Mr Newell for the Health Service submitted that in addressing the application he did so in accordance with the provisions of section 88 of the Act.

152 It was pointed out that Mr Sharma was not summarily dismissed but the matter was serious enough misconduct, notwithstanding that Mr Sharma was given some notice, it was a termination of employment that could be effected without the necessity for prior warnings.

153 The Commission could properly formed the view that the Health Service were obliged to show those facts upon which they relied in coming to the decision to dismiss and they were prepared to meet that. However the onus remained on Mr Sharma to show that the dismissal was harsh unjust or unreasonable.

154 The facts started with the footage which had been seen by the Commission. There could be no doubt, firstly that the conduct was entirely inappropriate for a range of reasons, one of which was that it was thoroughly and unwontedly invasive of the privacy of persons coming to the hospital and expecting a duty of care to be extended to them which did not include being watched without their knowledge in a close-up way which had to be seen as a sexual kind of manner.

155 Secondly, while a Security Officer was doing that, they were not doing their job. The security system was being compromised and not working efficiently. Those were the two fundamental problems with the sort of behaviour which the Commission could be quite satisfied had happened. The footage spoke for itself. The Hospital's duty of care had been compromised and there was no doubt it was a serious matter.

156 Having established that the footage showed serious misconduct by whoever did it one had to look at who that was. The inescapable conclusion was that the employer was justified in coming to the view that Mr Sharma did it. The Commission, in assessing independently the fairness of the decision when looking at the facts the respondent had brought would be satisfied it was Mr Sharma who did it.

157 Mr Sharma's answer, when he was taken to the specific incidents and the circumstances set out particularly Annexure B to Mr Thompson's affidavit, was that it was "a coincidence". He wanted the Commission to accept that it was just coincidence but he couldn't tell the Commission he was somewhere else or that even though the card system showed him accessing the office he saw someone else doing it, he just said he didn't do it, he couldn't otherwise explain it and it had to be accepted that it was coincidence.

158 Mr Newell submitted that Mr Sharma wanted to take both the Commission and his employer for fools in advancing that sort of proposition as he did in the Fact-Finding Interviews.

159 From the transcript of the interviews, it was apparent that Mr Sharma's demeanour could be described as "cocky", his conduct was evasive and he declined to answer directly some questions about how this had come about. He said it was either a coincidence or his other argument was that someone had contrived all this evidence to set him up.

160 The Commission had ample evidence that the possibility of anyone concocting the several electronic records in that footage was just nonexistent, on the evidence. There was not a jot of evidence to suggest it could be done but a wealth of evidence to say it couldn't. What was shown it in the footage, the electronic records the various exhibits showing access and when the footage was effected was accurate and reflected a factual circumstances. They reflected that somebody did look at women close-up through a camera and focus on their breasts and on their buttocks. A person did enter the Security office at a particular time when the swipe card showed they accessed it. It was proper accurate material on which the employer and the Commission could rely.

161 Mr Sharma was asked a number of times in the two fact-finding interviews if he ever used the cameras to focus on women visitors in the hospital grounds and he repeatedly said no he didn't. The problem was that the Commission will inescapably find that he did do this.

162 Mr Newell submitted there were a number of problems with Mr Sharma saying that he didn't accept any guilt in this matter but if he did shouldn't he have just got a warning. If the Commission finds that Mr Sharma did this then it must inevitably find as a matter of certain fact that Mr Sharma baldly and repeatedly lied to his employer about what he did or didn't do.

163 The employer believed Mr Sharma had done this and it followed that the employer believed Mr Sharma had lied flatly, deliberately and in the context of a serious Fact-Finding Interview into a serious matter about his conduct. This was also a basis for the termination. There was not only the misconduct, but there was the express and deliberate dishonesty, there was no other word for it, to his employer when the matter was investigated.

164 Mr Newell said it would be unwise speculation on his part, and he was reluctant to be drawn into any suggestion that there might have been a different outcome if in fact he had admitted such conduct. He didn't do that.

165 Mr Sharma was asked a specific question in the first interview about the eight separate occasions of manual operation and zooming of the camera on female visitors on 30 November and said he had no idea, he couldn't say anything and hadn't seen anything. When told he was the last person to swipe his card to enter the office he asked if it was suggested that he was being monitored. He wanted to have a debate with them about it he didn't want to answer their questions and didn't want to deal with the matter. He said he didn't do it and answered that question squarely enough.

166 There was inescapable evidence that this unwarranted, intrusive inappropriate conduct, which also involved dereliction of duty, happened on a great number of occasions and on every occasion it happened Mr Sharma was on shift. On a great number of occasions when it happened, it happened immediately after he accessed the Security Office. No other person could be implicated in having done that.

167 On the issue of procedural fairness Mr Newell submitted that they offered him a transcript and they didn't know what his complaint was. Mr Sharma said he wanted a tape and was refused that but there was not one jot of evidence about that. The suggestion that his comments on the interviews were disregarded was not correct. They were kept and recorded and taken to be Mr Sharma's expression of his view, which was he was invited to give, about the interview process. They had been advanced in the evidence. They were taken seriously and attached to their records to form a complete record they were not excluded or thrown away or discarded or disregarded.

168 Mr Newell pointed out that although Mr Sharma had taken some trouble to make amendments to the transcript of the interviews never did he say he wasn't told he wouldn't get a tape but he now said that to the Commission.

169 The Commission was invited not to accept Mr Sharma's memory of that event but rather to rely on what he said at the time which did not involve all that. That led to the conclusion that his real reason for not wanting to be taped was that he didn't want to be pinned down. A tape was inescapable and Mr Sharma was the one who won three occasions refused to be taped and it was submitted his reasons were that he didn't want to be taped.

170 However that was not a reason to dismiss him and was not a reason to find the dismissal fair or otherwise. What it did mean was that no accusation of lack of procedural fairness could be given in the failure to give him a tape. There was no evidence he asked for one or was refused one.

171 The basic propositions in relation to procedural fairness were that Mr Sharma was invited to attend a Fact-Finding Interview with a support person. Further matters of fact resulted, very properly, in another interview at which his Union official was present. When all those matters were raised and it was decided he had a case to answer there was a Disciplinary Interview with his Union Official present. It was submitted that the Commission could take judicial notice of the fact that the HSU was a Union which supported the rights of its members and its delegates and was rigorous in their defence. If an official from the HSU was present in Mr Sharma's disciplinary interview then no liberties were taken with him as a member of that Union.

172 After the disciplinary interview it was found on a prima-facie view that dismissal was warranted. Mr Sharma was invited to an interview with Mr Woodhouse the decision maker. He was a completely fresh independent mind who had not been involved in the process at all. He had a brief in front of him in setting out both the facts and also what Mr Sharma said about those including his allegations about the machine reporting incorrectly and the proposition that it was a fit up against him. Those things were set out in the executive brief and not hidden.

173 Mr Woodhouse, listened to him, had regard to what he had to say and said in his affidavit "I gave careful consideration to Mr Sharma's statements to me at the meeting. Having done so I consider that there was justification to terminate his employment on the basis of serious misconduct I did not make this decision lightly". The Commission could accept that someone at that level in employment did not make such a decision lightly.

174 It was submitted that the procedural steps were manifest and manifold and Mr Sharma was offered the opportunity to speak in his own defence, he had had that opportunity on four rotations and there could be no complaint that there was any lack of procedural fairness.

175 Mr Sharma said Mr Thompson was a person who disliked him, which he denied. However nothing was said about Mr Woodhouse. He approached the matter with a cooler and unbiased mind.

176 Mr Newell also submitted that Mr Thompson was a witness who presented calmly and honestly and there was no reason to disbelieve him. He had no vendetta against Mr Sharma, his desire was to see the Security Office run efficiently without picking on any Officer.

177 The proposition that Mr Thomson shouldn't have been involved in a fact-finding interview was quite wrong. He had not and was never party to any kind of misconduct, he was not a witness he had nothing to gain. He was simply the manager who was required

because of his technical expertise to look at the footage and investigate it. He was told to do that which he did and presented a report. It was submitted that it would "daft" to have a fact-finding interview without the person who understood and knew the technical and work background to the circumstances, participating in that interview. There was nothing improper in fact and Mr Thompson did not make the decision in any event.

178 It was submitted that it was inescapable that misconduct had occurred. That Mr Sharma committed that misconduct was proven on several levels of probability without any difficulty at all. It was not good enough to say it was just coincidence and the Commission should accept that. It was not coincidence. Records could not be tampered with and had not been tampered with. They showed that on repeated occasions Mr Sharma conducted himself in the way that had been described and when asked about it flatly lied.

179 The application must be dismissed. If the Commission were to consider any other remedy appropriate, which would involve finding that the decision was harsh unjust and unreasonable, which was resisted, clearly on the evidence, the re-establishment of the employment relationship firstly, 18 months later and secondly in circumstances where Mr Sharma himself said he had no trust and confidence in his Manager and believed he had some kind of race hate vendetta against him, was not going to be possible. Further Mr Thomson's evidence was that he had no trust and confidence in Mr Sharma. There was just no proper basis on which any kind of practicable re-establishment of the employment relationship could occur.

180 If the Commission were to consider any remedy, regard would have to be had to the fact that Mr Sharma now had a job and was earning comparable money. He had been out of work for a period of time, had worked for a period of time and gone overseas. Any compensation would have to be tailored to those facts.

181 In reply Mr Sharma said that whilst Mr Newell said he had done this and that and it was established, their own documents said "you are the most likely person". Mr Sharma pointed out that when Ms Bail had given him the first letter (dated 25 January), which he refused to accept, it said "you may have". This was then changed to "you have most likely". He believed the change was made because he refused to accept the letter and she got angry.

182 However things still stood that they had not brought any evidence or any witness to say that any person saw him do this. Everything was speculation, that he entered the office, that the door might be left open and he entered the office, or that he sneaked under the camera. They based their investigation and termination on speculation not concrete evidence. They said they had people saying things but those persons were not here so that he could "cross-question" them.

183 Mr Sharma said he still could not understand why they did not bring any person to say that they saw him doing this footage. He would not have brought this matter to court wasting the Commission's time and his time. He had spent very much time since last year

on this matter and had spent so much money talking to people and taking their advice and everyone told him that they didn't understand how they could terminate him when they couldn't establish the fact that he was the one who had done it "quite (sic) sure".

184 There was some CCTV footage where he was not even near the office but still the camera was moving and who was doing that, it was not him he had established that. It was not even him in the office or near the office yet still the camera was moving.

185 They tried to find out in their fact-finding interview that either he had done it or he knew someone had who had done it. That was a Catch-22 situation for him that he would say a lie to get someone else into trouble and himself out of trouble. He was not that sort of person. He knew he did not do it and he did not see anyone doing it.

186 Mr Sharma said some people were present in the office when he walked in and he didn't know how they got there, whether they showed their card or the door was left open. Sometimes there were people in there or they might still be there after he left the office. It was very difficult for him to ascertain what had happened in December and January when they were talking about November. Given that they do a rotation shift, that "stuffs up the brain". Sometimes they didn't know what date or day it was. In Fairfield Hospital they used to do a roster where they were doing two or three day shifts then two or three days of afternoon shift then four night shifts so in a particular shift fortnight they used to do many different shifts.

187 Mr Sharma said that apart from his memory and things you forget, you get nervous and he was a human being as well. He was reading their policy and he was asking questions. All these things he was asking for but unfortunately they did not put them in their summary because it did not suit them.

188 Again he raised the issue that he was willing to give his interview on tape but was not given the chance, he was flatly refused. Mr Newell said that he didn't show anything to the Commission that he asked for this tape. He had numerous e-mails sitting in his bag which he had sent to Ms Bail it was his mistake that he did not actually present those during the hearing or in his affidavit but they could be checked.

189 In saying he did not want Mr Thompson involved because he knew he was going to be biased towards him, he had nothing against Mr Thompson and nothing against anyone else in the Hospital. He knew Mr Thompson was doing his Security Manager's job and Mr Sharma was doing his job of Security Officer. He was doing his job investigating him but Mr Sharma had a legitimate reason to say he didn't want this person because he had a report against him not long ago. If it had been one or two years ago and these things happened two years later he could understand and they would both forget. It was his right to say that he didn't want Mr Thomson to be involved in this meeting because the investigation was finished and he was the one who took the report against him.

190 Mr Sharma also contested that Mr Thomson was expert. He only had expertise the same as Mr Sharma or any other of the Security Officers working in the security industry

for 10, 15 years. He didn't have any qualification, degree or diploma to say definitely that what happened was evidence that was conclusive. If Mr Sharma had the opportunity he could show the Commission footage of Security Officers doing various things whilst on duty in direct contravention of the signed workplace agreement. He had raised these issues with the Area Health Service about Mr Thompson.

191 Mr Sharma concluded by saying he was in Court because he stood up for his rights and spoke for himself and other people and did not think there was anything wrong with that.

Consideration192 I have very carefully considered the transcript, the documentary evidence and submissions in this matter as well as viewing the CCTV footage (the latter on a number of occasions).

193 There were no cases cited by either the applicant or respondent in support of their respective submissions, which was understandable given that Mr Sharma was self represented. However the various principles encapsulated in the relevant cases that must be applied by the Commission in consideration of this matter are fairly well-known and I set them out below.

194 As rightly identified by Mr Newell, the onus is clearly on the Health Service to establish that misconduct has taken place. The frequently cited authority for this is Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70.

The Commission must then be satisfied that that onus has been discharged and that the misconduct has occurred.

195 It is well accepted that the test to be applied by the Commission in consideration of the evidence is the civil standard of the balance of probabilities as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. That has been confirmed in numerous decisions of this Commission and was extensively canvassed by the Full Bench in Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1.

196 It is also relevant to note that the Health Service's policy as contained in "A Framework For Managing The Disciplinary Process" (November 2001) acknowledges that the appropriate standard to be in applied in disciplinary matters is that found in Briginshaw v Briginshaw.

197 Indeed the policy rightly indicates-

... "further, it was held that the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved.Therefore, in considering whether to proceed to disciplinary action the standards of proof

required must be considered. If the outcome of the disciplinary action is likely to result in dismissal, the standard of proof applied must be higher than for action that is not likely to result in dismissal.

198 However, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty as per Byrne & Frew v Australian Airlines (1995) 61 IR 32.

199 Likewise the Commission must also consider whether the termination was harsh, unjust or unreasonable per S.88 of the Act. However the onus remains on the applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273 to establish that his termination was either harsh, unjust or unreasonable and sufficiently so as to warrant the intervention of the Commission.

200 In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440 Sams DP identifies at para. 218 the four questions that arise for consideration in a case concerning summary dismissal for misconduct:-

1. Was the conduct against the dismissed employee proven?2. Did the seriousness of the conduct justify summary dismissal?3. Did the conduct constitute a fundamental and wilful repudiationof the contract?

4. Were mitigating factors taken into account?

201 However a dismissal can also be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court judgement in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72. It is appropriate in this matter to repeat that passage:

"The distinction between procedure and substance is elusive. This is so, even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce in into cl.11(a)

That is not to say that the steps taken, or not taken before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under (cl.11a) is whether, in all the circumstances the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second".

202 Brennan CJ, Dawson and Toohey JJ concluded at p43

"Save for the prescription of periods of notice cl 11 does not require the adoption of any particular procedure for the dismissal of any employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in dismissal of the employee being in breach of cl 11(a)".

203 Byrne & Anor v Australian Airlines has often been relied on in Full Bench Decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 116; Bigg & Anor v New South Wales Police Service (1998) 80 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255; and Antanakopoulos v State Bank (1999) 91 IR 385.

205 In Antonakopoulos v State Bank (1999) 91 IR 385 the Full Bench said at page.389" We agree with the conclusion of Hill J. that procedural issues, that is failure to deal with the matter in a procedurally fair way, may in certain cases of themselves, constitute the basis for a determination that dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or involve limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a deterioration that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust."

206 The Full Bench also said at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However a failure by an employer to adopt appropriate procedure when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s.84"

207 As mentioned in the above passage, the Commission's statutory basis for considering procedural issues in unfair dismissal proceedings is found in s.88 of the Act, which provides as follows: "In determining the applicant's claim, the Commission may, if appropriate take into account:

a) whether a reason for the dismissal was given to the applicant and, if the application sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it has a basis in fact, and whether the application was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

c) whether a warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the application sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement or re-employment with the employer, and

f) such other matters as the Commission considers relevant"

204 Turning to the expression "harsh, unjust or unreasonable', that expression was also considered in Byrne & Anor v Australian Airlines. In their joint judgment McHugh and Gummow J.J said at p72:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust, In many cases the concepts will overlap. Thus the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon interferences which would not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which then employer acted"

205 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at 182 where the Full Bench said:

"First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that

s dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter as may be obscured by the use if the substitute term "unfair". Different but not wholly dissimilar words. "Unfair, "harsh" and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd (1980) AR (NSW) 399 at 431 (Cahill J delivering a different judgement) said:

"The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is "unfair", "harsh" or "unconscionable"

It has been said that those words are a "tautological trinity" (Davis v General Transport Development Pty Ltd) (1967) AR371) but we prefer to take the view that there is a perceptible difference between the meaning of the term "unfair" and that of the terms "harsh" and unconscionable". Whatd is unfair may not be so unfair as to be "harsh". But whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power".

In much the same way, we consider that, while strict definitions of "harsh", "unreasonable" and "unjust" may produce a degree of circularity of meaning, turning in the notion of "fairness", it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the to others. To avoid the possibility of misunderstanding or error, the tribunal when making the primary finding should state explicitly the basis on which it is made".

206 In Bankstown City Council v Paris (1999) 93 IR 209 the Full Bench confirmed the distinction to be made in those three terms and also indicated the requirement that the Commission make specific findings saying at p20:

"The Commissioner found that the dismissal by the Council of Mr Paris was "harsh, unreasonable or unjust." This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal maybe capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made."

207 In NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388 the Full Bench further discussed the issue of making a specific finding as follows:

"64. Finally, we stress the importance of a Member of the Commission at first instance in s.84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is conceded that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust.65. In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal".

208 In Sams v Contact Point International Pty Ltd (2001) NSW IRC Comm 18 and also Police Association of New South Wales on behalf of Tregonning v New South Wales Police Service (1999) IRC 2799/99, Sams DP also considered the meanings of "harsh unreasonable and unjust" as set out in Tregonning's case at P.32.

" It is apparent from both the ordinary meaning of each adjective, and their use in an industrial context, that each has its own discrete and distinct meaning - albeit with common threads.The Macquarie Dictionary defines the terms thus:

HARSH: ungentle and unpleasant in action or effect;

UNREASONABLE: not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgment;

UNJUST: not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions.

And the Concise Oxford Dictionary records as follows:

HARSH: repugnant to feelings or judgment, cruel, unfeeling;

UNREASONABLE: Not reasonable; going beyond the limits of what is reasonable or equitable:

UNJUST: Not just, contrary to justice or fairness.

In an industrial context, in Rose v Telsra Corp Ltd 9AIRC, Print Q9292 (Vol 45 AILR 3-966, 4 December 1998) Ross VP described the terms:

"In my view, for the purpose of s.170CG, a termination of employment may be; HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the

employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on the inferences which would not reasonably have been drawn from the material before the employer."

In Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 at 104, Connor C similarly defined the terms as follows:

"HARSH: too severe, having regard to all the circumstances.

UNREASONABLE: immoderate, excessive or extravagantUNJUST: unfair, inequitable, undeserved or biased."

209 Having outlined above the cases which are most relevant to the underpinning of my consideration of this matter I now turn to the evidence and my findings.

210 It should be stated at the outset that there were no issues of any kind raised about Mr Sharma's work performance or work history. There is no evidence that he was not an entirely satisfactory employee of the Health Service.

211 I have a number of concerns about the termination of Mr Sharma for serious misconduct on both a substantive and procedural basis. In my firm and considered view the Health Service has not discharged the onus it bears to establish that misconduct by Mr Sharma occurred.

212 It is clear from the evidence that a dedicated and closed-off Security Office providing access only to those specifically given such access became operational in mid-September 2004. Prior to this security operations including the CCTV system were apparently co-located within an office area that other Hospital staff could access.

213 It was fairly shortly thereafter, on 5 October 2004, that Mr Thompson said he observed, on commencing work, that all the PTZ cameras during the period 3 to 5 October 2004, were not operating on their normal programmed automatic fields but directed to obscure locations and in fixed positions. Several of the fixed cameras had also obviously been interfered with in that they had the contrast altered to show only black vision. This resulted in his first report to the General Manager.

214 From the key card access records (Exhibit 7) it is obvious that Mr Sharma did not gain access to the office at all on 3 October and only between 03:48:27 and 4:39:03 on 4 October and again between 17:53:03 and 2:12:15 on 4/5 October, with 5 other Security Officers recording, between them, access to the office on 22 occasions after Mr Sharma's last access and prior to Mr Thompson's access on 5 October. The number of occasions Mr Sharma accesses the office is commensurate with the other Officers on his shift.

215 This would seem to suggest strongly to me that a number of Security Officers were taking the cameras off automatic programming and leaving them in fixed positions,

contrary to practice and indeed may have been manually using the cameras for various purposes.

216 There was no evidence about any investigation as to what was being done with the cameras only that Mr Thompson and "another employee of the Health Service" were requested by the General Manager to examine when the cameras were adjusted and what the staffing was according to the roster. 217 On the evidence there were no instructions or standing orders about the manual use of cameras and even though Mr Thompson maintained he would have expected an incident to be noted in the shift log there was no specific instructions to this effect in relation to any occasion when cameras were operated manually why.

218 I cannot understand why Mr Thompson did not immediately issue a memo that such activity was inappropriate and what should have happened - if he was of the view that cameras had been used inappropriately as they obviously had in that they had, at the least, been take off automatic programming, used manually and not returned to automatic programming. (There is no evidence that any such action was taken or any memos subsequently issued on the issue prior to Mr Sharma's termination).

219 There is no evidence that Mr Thompson reviewed the footage of the shifts between the 3 and 5 October to see just what had been done with the cameras. I would have thought that would have been the first priority of any investigation.

220 I appreciate that Mr Thompson indicated that due to the absence of policies and procedures in the security department when he became the manager that there was a great deal to be done and he was gradually working his way through that. However I would have thought the implementation of the dedicated and separate Security Office containing the CCTV system would have generated some immediate and obvious policies in relation to usage of the CCTV system particularly after 5 October.

221 I have very carefully reviewed the footage of 30 November, 2 and 9 December, the timeline and chronology prepared by Mr Thompson (Exhibit 6-Annexure B) and the Security Office access records (Exhibit 7).

222 I see nothing particularly untoward about the footage of 2 December, apart from the fact that there may not be (and I stress may ), a legitimate security reason for such footage and to that extent it would have been an inappropriate use of a Security Officer's working time. However, in any event, given that after he is shown as accessing the Security Office, Mr Sharma accessed the "1C External reader on fire door" and this occurred some 2 1/2 minutes before the camera is operated manually, there has to be doubt that Mr Sharma was in fact operating the camera. R. Palenzuela is shown at the time as being in the ambulance bay. L. Wormsley is not listed as appearing on footage or at other access points during this time but accesses the office at 23:39:03, which is certainly after the manual footage has finished.

223 I also note here that there was no evidence as to the physical layout of the Hospital showing the Security Office and where it was located in relation to other parts of the Hospital.

224 In the Disciplinary Interview on 27 January 2005, Mr Sharma denied manually using the camera on 2 December and indicated that other persons were in the office when he left. He went on to relate what he had not told Ms Bail at the Fact-Finding Interview on 8 January and that was that when he went into the office he saw Security Officer Les Wormsley already in there zooming the camera on R Palenzuela in the ambulance bay and when asked what he was doing he said was checking on him and what he was doing outside when he was supposed to be somewhere else. He told Mr Sharma he got permission from Mr Thompson for this. Mr Sharma then left the office.

225 This accords with Mr Thompson's timeline of events for that period. Mr Sharma's reasons for not being more specific about his own allegations concerning other Security Officers was the fact that Mr Thompson was present during the interview process, despite Mr Sharma's objections and he was reticent about talking in front of Mr Thompson.

226 I will address the issue of the presence of Mr Thompson during the interview process as part of my consideration of procedural issues. It is an issue of concern to me.

227 Neither Mr Sharma nor Ms Page from the HSU had a copy of Mr Thompson's timeline report prior to this interview. Indeed Mr Thompson maintained he saw no reason for this document to be made available to Mr Sharma during the fact-finding process. This is just another one of my major concerns about the procedural process followed in relation to Mr Sharma which I shall address in more detail below.

228 In carefully considering the footage of 30 November I have come to the view that even if it was beyond doubt or probable (which it is clearly not) that Mr Sharma was indeed responsible for the incidents noted in the table on page 4 of the Executive Brief to the General Manager, what is shown clearly did not warrant any disciplinary action other than a warning as a result of the First Fact Finding Interview. Nor could it possibly have been considered as misconduct in my firm view.

229 The Executive Brief also notes that all nine security officers (including Mr Sharma) who were rostered on the shifts concerned were interviewed and all denied allegations of manually using the CCTV camera in an inappropriate and invasive manner. However there is no indication whether this denial on the part of the other Security Officers interviewed extended to a denial of manually using the cameras in any way on the dates in question.

230 Mr Sharma has consistently throughout the fact-finding and disciplinary process as well as these proceedings denied using the CCTV camera in an inappropriate and invasive manner indeed at times quite emphatically so. Mr Newell for the Health Service has submitted that those denials essentially, evidence further misconduct on his part in that Mr Sharma has deliberately lied to his employer about his conduct. Even if I was to

accept that as true it would be abundantly apparent that other Security officers have also deliberately lied to their employer about their conduct.

231 It is also abundantly clear, from a careful examination of the footage for the entire period in question (as shown on Disc 1-Exhibit 6a) and a comparison with Mr Thompson's timeline and the key card access records that other Security Officers were quite probably manually using the camera. This appears to have been acknowledged by Mr Thompson in his affidavit at paragraphs 25 to 29 where he sets out details of the various cameras (particularly those in two car park areas) taken off automatic programming, the relevant times and the specific Security Officers who had last gained access to the office prior to the cameras going off automatic. Two persons are specifically mentioned other than Mr Sharma. There is no evidence as to whether footage for the other cameras not included on that disc was examined and what had occurred in relation to the use of the cameras.

232 As far as Disc 6a is concerned there are a number of occasions on 30 November where there is manual use and zooming of the camera between the times of the 1st and 2nd of the incidents listed in the Brief (and attributed to Mr Sharma because of his access to the office) where either another Security Officer or indeed no Security Officer is shown as accessing the office immediately before that manual use. This suggests to me that either of the other two Security Officers could have been responsible for this activity.

233 I also note significantly during that the 3rd incident (20:46:50 to 20:49:44) Mr Sharma, after initially accessing the office at 20:42:49, is then shown as accessing the ED waiting room door reader at 20:45:17. This would clearly suggest that he was not in fact responsible for the subsequent manual operation and zooming of the camera if one applied the "most likely to have" test that the Health Service refers to in Ms Bail's letter of 25 January advising Mr Sharma of the requirement to attend the Disciplinary Interview of 27 January.

234 I reject utterly, as frankly bizarre, Mr Thompson's suggestion that Mr Sharma could have "doubled back" against the wall avoiding the camera in the main foyer, which only shows movement in the direction of or away from the Security Office location and not actual entry to the office. There are also as I understand other offices adjoining the Security Office.

235 Mr Sharma would then have had to access the office without using his key card. Mr Thompson maintained that he had observed on some occasions when he commenced duties, that the Security Office door had been wedged open and said that Security Officers did this to avoid using their key card and being monitored by him. This may be so, but that simply indicates that all Security Officers should be under suspicion of entering the office in an unauthorised and sanctioned way and also inappropriately using the cameras not just that that supports how Mr Sharma could have done so.

236 However notwithstanding that Mr Sharma is shown as having accessed the Security Office prior to the camera being used manually there is also the possibility of another

Security Officer being responsible as that person accesses the office a minute before Mr Sharma does. There is certainly in relation to the second incident footage showing the third Security Officer issuing a parking infringement which would rule him out of responsibility.

237 This highlights for me the very issues raised by Mr Sharma that there is no way of telling whether a Security Officer who accessed the office prior to Mr Sharma is still there and operated the camera or indeed whether another Security Officer accesses the office at the same time as Mr Sharma and stays while Mr Sharma leaves and then manually operated the camera. I acknowledge that this also raised the possibility that Mr Sharma could also have accessed the office at the same time as another Security Officer and remained there to operate the camera.

238 There is also a question in my mind as to whether there was a master key still in the possession of a Security Officer. Mr Magpayo referred to a key that was kept and passed on to the next shift. Obviously that was a practice taking place before the new office was operational. Mr Thompson gave evidence about investigating the issue of persons still having keys but that it was inconclusive and he also "thought" that all keys would have been returned by December 2004. However there is still a possibility that such access by a key was possible and happening.

239 Mr Sharma also pointed out if he wanted to look at women and girls why wouldn't he just go outside the Security Office and look at them in the course of carrying out his security duties rather than on a computer screen? I have to say there is a great deal of logic in that argument.

240 It is also worth noting that the 3rd incident on November 30 is probably the most inappropriate focus on a female that occurs on that date. Even so along with the other footage there is also focus on a male person and groups. It is hard to say what the purpose is for the footage apart from obvious boredom on the part of the Security Officer operating the camera. However in my view it was hardly "grossly inappropriate and indecent" as Ms Bail put to Mr Sharma on 21 December. On a scale of 1 to 10 it doesn't even make it to 5.

241 I make it plain however that Security Officers should not use CCTV cameras to watch members of the public or indeed other staff members for any inappropriate purpose particularly, to put it in the vernacular, "to perve" on women (or men).

242 I also note that on occasions on the footage for 30 November, the focus is poor and the manual operation of the camera of a clearly qualitative inferiority to that of 9 December which certainly contains the most offensive and problematic footage of the three dates in question (and could probably be categorised as indecent - it is certainly voyeuristic). This could suggest that either different officers have used the cameras on those dates or the officer using the camera improves his technical competence over the period of time.

243 Mr Sharma also maintained that the timing shown for the access records and that of the CCTV system could be out by up to a minute. This was in fact acknowledged as the case by Mr Thompson in evidence. There is reference to this in the Executive Brief under the heading Mr Sharma's Response To The Allegations as follows:

"Furthermore, Mr Sharma indicated that the time displayed on the CCTV software is incorrect. He also stated that there is a possibility that the time reported by his security access card to access the Security office could also be incorrect".

244 However there is no acknowledgement anywhere in the Executive Brief that that Mr Sharma's opinion was more than just a possibility but that id did happen, based on Mr Thompson's evidence. The Brief also addressed technical advice sought from the software provider, Pacific Communications, however that issue of the timing difference raised by Mr Sharma was not specifically addressed only whether the time could be changed on the Access Control System (this could only be done by an administrator).

245 There was no evidence as to which way the "out by up to a minute" ran, that is whether the camera time was ahead or behind by up to a minute. Given the closeness on occasions between the time of access and the manual operation of the camera that time difference could be of crucial relevance, for example particularly in relation to 2 December where Mr Sharma maintained (albeit with some corrections as to the time) he was in the car park till 23: 30: 00 and would not have swiped his card at the time shown because of the time it would have taken for him to leave the car park and walk back to the Security Office. Although I have already indicated that I find nothing particularly untoward about that footage, it does however highlight the potential relevance of the timing difference.

246 I should also note at this point whilst referring to the Executive Brief and the summary of Mr Sharma's responses that the following paragraph also gives me cause for concern at the way in which it puts forward Mr Sharma's response which I do not believe was what Mr Sharma either said or meant on a reading of the summary notes and considering his evidence in these proceedings. That paragraph is as follows:

"Mr Sharma stated in the fact-finding interview that the CCTV software could be automatically programmed to zoom in and follow clients entering and exiting the health service. In response to questioning Mr Sharma advised in his fact-finding interview that he believed the camera could be pre-programmed to zoom in randomly on female clients' chest, backside and crotch areas.

247 It appears to me that what Mr Sharma was doing in the interview was drawing attention to the fact that the camera in the Emergency Department automatically zoomed in and out on a certain position where a person such as a female could be sitting, and this zooming in and out was the same as the footage he was being shown for 30 November. He even took Ms Bail and Mr Thompson down to the Emergency Department to look at the area in question and the camera which had been programmed by Mr Thompson. That

evidence is supported by Mr Mita who was his support person at the interview. At that stage none of the footage he is shown on 30 November is in the same category as that of 9 December.

248 I fail to see how it can be said that Mr Sharma is putting forward that cameras can be "pre-programmed to zoom in randomly on female clients' chest, backside and crotch areas".

249 Turning to the footage of the 9 December. There is no doubt that inappropriate conduct has occurred in this footage and there can be no possible security purpose for it. It could probably be classified as misconduct but whether that warranted termination for any Security Officer responsible is another matter given the absence of any specific policies or procedures in place in relation to use of these CCTV system at Fairfield Hospital (and depending on an individual's past disciplinary and performance record) and in the light of management's failure to immediately take some sort of action after 5 October (and indeed after 30 November) when it must have been abundantly apparent that cameras were being operated manually for either no apparent security purpose or that use being logged.

250 A general memo could have been put out after Mr Thompson had viewed the footage of the 30 November and observed inappropriate usage and that would not have preclude proceeding on a fact finding and disciplinary process about such usage. But all Security Officers would have been put on notice that such conduct was inappropriate and instructed on what should be done should manual operation of the camera be necessary for a security or safety reason that is logging such in the shift log.

251 I remain unconvinced that Mr Sharma is the "most likely" person responsible for that footage.

252 I also have to say that I am troubled by the fact that at the end of the first Fact-Finding Interview on 21 December concerning the 30 November of footage, when it would have been abundantly clear that the footage was demonstrating a Security Officer probably (though not conclusively) was not carrying out security duties, that it was certainly not footage that warranted the process being taken further than a warning to Mr Sharma and all other Security Officers about inappropriate use of the CCTV system. Yet rather than issuing such warnings and making sure Security officers were not carrying out inappropriate activities, Ms Bail sought approval on 23 December from the General Manager, for Mr Thompson to conduct a broader time search of footage to see if there was a "pattern" of behaviour rather than a "one off". It really does raise the question with me that there was a possibility of a view that "we haven't got enough to sack him let's look for something more."

253 The reason this troubles me arises from Mr Sharma's concern about the process and Mr Thompson's involvement because of the complaints that had been launched against him by Mr Sharma and six other Security Officers that resulted in the investigation by Mr Mason.

254 I consider that Mr Sharma had every right to object to Mr Thompson's participation in the fact-finding and disciplinary process. He made his objections known to Ms Bail prior to the interview process as did his Union. They should have been taken into account and acted upon. I appreciate that may have caused difficulties as Mr Thompson was responsible for the investigation of the footage. Nevertheless I do not consider that he should have been involved in the process purely because of the Mason report.

255 Mr Sharma acknowledged in evidence that if the complaints and the resulting investigation and report had occurred at a more distant time he would not have been concerned and I doubt that he would have taken exception to Mr Thompson's participation if that had been the case. Unfortunately it wasn't and Mr Sharma in my view had a legitimate reason and right to complain.

256 The nature and timing of the complaints, the investigation and the report with its findings clearing Mr Thompson and criticising the Security Officers making the complaints, should clearly have been sufficient basis and reason for the Health Service to distance Mr Thompson from the fact-finding and disciplinary process involving Mr Sharma and indeed from investigation the issues of the inappropriate CCTV footage in the first place.

257 It is a trite saying but true nonetheless that justice must not merely be done but be seen to be done.

258 The PCU Report conducted by Mr Mason was provided to a meeting of Security Officers and management on 19 November 2004. The investigative process was clearly being undertaken, if not in its final stages in October 2004 when Mr Thompson first became aware of possible inappropriate use of the CCTV system.

259 The first recommendation made by the report is that:

"The Security Manager requires the practical and visible support of the Senior Executive of Fairfield Health Service in his endeavours to address the performance, policy and procedural issues identified within the Fire Safety and Security Department".

260 The second recommendation covers the implementation of regular staff meetings and participation by employees and goes on to suggest that participation in those meetings by the General Manager "may provide the necessary visible queue to encourage attendance and participation and evidence the Health Services support of the Security Manager" (emphasis added).

261 There is also a recommendation that the performance management of each of the employees needs to be addressed as a matter of priority (emphasis added) with issues of non-participation or co-operation needing to be brought to the attention of the Director of Nursing for resolution.

262 It is apparent that the report generally found fault with the Security officers making the complaints and exonerated Mr Thompson entirely. Given that just over half of the Security staff had complained about Mr Thompson I would have thought the Health Service would have been at pains to ensure that there could be no adverse inference possible arising from any actions taken in the security department subsequent to the report.

263 Understandably the General Manager had to be seen to be supporting his Security Manager however, why on earth Mr Thompson was given the responsibility of investigating the inappropriate behaviour he suspected is absolutely beyond me. That task should have been given to some suitably experienced person outside of Fairfield Hospital. It is just ridiculous to say that Mr Thompson had to do it because he had the expertise and was Mr Sharma's supervisor. All that was required was for someone reasonably competent to go through the various computer records and CCTV footage and put it all together. That seems to be all Mr Thompson has done.

264 Mr Sharma may also have a valid point that according to NSW Health's policy document "A Framework for Managing the Disciplinary Process" Mr Thompson should not have been involved as the policy indicates that in conducting the interview:

"No more than two people should conduct the interview. They must have no involvement in the disciplinary matter that is the subject of the interview, and must be impartial in their conduct of the interview". (emphasis added).

265 Mr Thompson is essentially the person making the allegations of inappropriate use of the CCTV system against Mr Sharma. It is not clear to me whether that then means he is a person who is involved in the disciplinary matter and therefore should not participate in the interview process.

266 Mr Sharma also had concerns about Mr Thomson's impartiality given the recent PCU report. Those concerns are understandable even if they are not justifiable.. There is no evidence that Mr Thompson was biased or that he had any personal grudge against Mr Sharma and he was at pains to stress that during his evidence.

267 It was not a sufficient response from Ms Bail to suggest another third party sit in on the interview to preserve its integrity, that was not addressing the problem. It is also abundantly clear from the interview summaries that Mr Sharma was reticent about what he said because of Mr Thompson's presence, therefore in my view not all relevant information may have been put forward for consideration as a result.

268 He was also obviously concerned with implications that he was being "monitored" whilst working and that was a compliant he had made against Mr Thompson generally in relation to the security staff. Indeed Mr Thompson seemed to acknowledge this issue in saying that staff propped the door open to avoid using their key cards and to avoid being monitored by him.

269 The issue of the dispute about the summaries and Mr Sharma's amendments is only worth mentioning because I can see no reason why Ms Bail and Mr Thompson rejected out of hand all of his amendments and put that rejection in the terms they did. I find it hard to believe that some of them were not valid (particularly as he said he checked them with the person who was with him). If the issue was that the notes were only to be a summary of the matters discussed rather than a word for word record and Mr Sharma's amendments raised nothing already covered (albeit in a briefer form), then I could understand the rejection of the amendments. But that could have been conveyed to Mr Sharma in such a way as to not reinforce his view that the whole process was unfair and designed "to get him". Having considered the amendments, they mainly (though not exclusively) go to finer detail of the verbal exchanges between the parties. Neither Mr Sharma's nor Mr Thompson's original handwritten notes were in evidence.

270 Mr Newell is also not quite accurate in saying they were kept and considered and attached to Mr Thompson's affidavit that may certainly be the case but there is no evidence that those corrections were provided to the General manger for his consideration when they were returned by Mr Sharma on 27 January. In any event there is the file note signed by Mr Thompson and Ms Bail concerning the notes and dismissing them essentially out of hand (Exhibit 6 - Annexure J).

271 On the issue of the dispute about whether or not a tape recording was or wasn't offered or was or wasn't refused on 21 December, I acknowledge that Mr Sharma had the opportunity of correcting that in the interview summary. He adds a number of amendments about what was said about tape recording but does not mention any refusal to make a tape available if used. It may be that the confusion or misunderstanding arose out of the reference to the much earlier interview between Ms Bail and Mr Sharma (on an unrelated matter) a copy of the tape or the summary notes. The subsequent summary notes of 14 January simply refer to Mr Sharma's refusal for the reason previously given. That may or may not mean the refusal of the Health Service to provide a tape at all or the failure to provide a tape for the much earlier interview. In any event I do not consider it raises issues of Mr Sharma deliberately avoiding being taped, as suggested by Mr Newell. Given the possibility of a misunderstanding on the part of the parties I don't propose to take this issue further.

272 Whilst there is no doubt that on the face of it a proper and fair procedural process was carried out in that specific allegations were to Mr Sharma, he participated in fact-finding and disciplinary interviews and had the opportunity of making further submissions prior to the final decision to terminate was made, I still have concerns with the fairness of the process. I have already referred to some of my concerns about procedures. It is appropriate to now summarise those concerns.· The apparent lack of action to immediately draw to the attention of Security officers, after 5 October, that cameras have obviously been taken off the automatic programming and not put back on indicating that they probably had been used manually, possibly inappropriately and with no appropriate entry in the shift log to support such use.· Mr Thompson's initial investigation following 5 October was carried out in conjunction with " another employee of the Fairfield Health Service" who has, for some reason, never

been identified. There is no evidence that any investigation was carried out at to what was being done with the cameras (that is any viewing of footage).· There is no evidence that any memo or instructions concerning the CCTV system are issued following 30 November when it is obvious cameras are being used manually and inappropriately.· Inappropriate use of cameras is identified but rather than stamped out immediately a further investigation is conducted to see if there is a pattern of behaviour. Surely such behaviour should have been prevented from further occurring at all.· Mr Thompson's participation in the investigative and interview process given the PCU report by Mr Mason released on 19 November 2004 and Mr Sharma's objections to his participation as outlined above.· Neither Mr Sharma nor his Union representative were provided with copies of the timeline summary documentation prepared by Mr Thompson summarising not only the CCTV footage and Security Office access but occasions where Security Officers were recorded as accessing other areas in the Hospital or were shown on security cameras and thus were not in the office and could not have been manually operating the cameras at the time.· Without this material Mr Sharma did not have a proper opportunity to prepare, respond and defend himself against the allegations made.· During the interview of 14 January, Mr Sharma was told of allegations by other Security Officers concerning his manual operation of the camera and using the CCTV cameras to zoom on women but was not told who made those allegations (and therefore not given all the information available) and had no proper opportunity to respond or defend himself against those allegations. Any issue about concerns of retribution as referred to by Ms Bail as the reason names were withheld should have been properly managed by the Health Service but should not have prevented allegations being properly forward.· Any staff member making any allegations should have been required to put them in writing so that they could have then been properly provided to Mr Sharma for an appropriate and considered response. Otherwise they are no more than " gossip" along the lines of the "backstabbing" referred to as one of the many "petty issues" between the Security Officers that was relayed to Mr Mason during his investigation and should have been ignored.· The Executive Brief refers to those allegations and in addition refers to a comment that Mr Sharma is alleged to have made to one of the Security Officers about what Mr Sharma was looking at. This was not conveyed to Mr Sharma at any time during the interview process and he was not given any opportunity of responding to that allegation.

273 In considering the evidence in this matter I have also been mindful of the demeanour of the witnesses, which can in such cases be of some relevance to such consideration. I have to say I was quite impressed with Mr Sharma. For an unrepresented applicant he conducted his case very well and made cogent points. I found him to be a sincere and honest witness and I am very much inclined to believe based on his evidence and the other matters I have considered above, that he was not responsible for the inappropriate CCTV footage that has been attributed to him .

274 I do not question the honesty of Mr Thompson. He was placed in a difficult position by the General Manager in being required to conduct the investigation and participate in the fact-finding and disciplinary process. That should not have occurred. Mr Sharma also acknowledged that he was simply doing his job.

275 However the honesty of other Security Officers at Fairfield Hospital can be questioned. Whilst there is no evidence that Mr Sharma was "set up" as he believes, I have to say that I cannot dismiss that as a possibility.

276 I can readily understand how the Health Service could have come to the view it did but I consider that it was inappropriate to proceed to terminate Mr Sharma on the basis that he was the most likely person to have committed the misconduct and because he had no explanation to put forward in response to the allegations. If he didn't do it as he said (and I believe him) what further explanation could he have given? In my view there are too many possible explanations (another Security Officer already in the office or entering with Mr Sharma and manually operating the camera when Mr Sharma left the office not to mention the timing issue or the possibility of a key still being in circulation) to rely simplistically on Mr Sharma as guilty because he was the last person to access the office before the cameras were used manually ( and even then not on every occasion). There can also be no doubt whatsoever that other Security Officers were and had been manually using the cameras during the period 3 October up to and including 9 December and that that use may have not been for a security purpose.

277 In the absence of any training, clear policies or instructions about the CCTV system and more secure surveillance systems I do not consider that Mr Sharma should essentially be made the scapegoat for those failures on the part of the management of Fairfield Hospital.

278 I note from Mr Thompson's evidence that systems have been improved such as swipe access now being required to operate the CCTV system and improved camera monitoring of the Security Office to show entry and exit.

279 I just cannot see that on the material before the Health Service there was sufficient evidence to justify a finding of misconduct against Mr Sharma. It follows that the Health Service has not discharged the onus it bears to establish that misconduct by Mr Sharma took place. That being the case, on a substantive basis, the termination of Mr Sharma was harsh and unjust.

280 In returning to the four questions posited by Sams DP in Natoli, having answered the first question in the negative it is not necessary for me to consider the remaining three questions.

281 I also consider, taking into account the issues I have raised above that the termination of Mr Sharma, on a procedural basis, was harsh and unjust and unreasonable.

282 Therefore applying the authorities referred to above, the Commission is satisfied that the termination of Mr Sharma was harsh, unjust and unreasonable and as such merits the intervention of the Commission.

283 Mr Sharma sought reinstatement to his former position. As I have observed in other cases concerning allegations of misconduct (see Bell v Linfox [2006] NSWIRCOMM 1025) having found that the termination of an applicant was harsh, unjust or unreasonable and that the applicant did not commit the misconduct of which he was accused and where the applicant sought reinstatement, to do otherwise would be to visit a further injustice on that applicant.

284 Having regard to the principles concerning practicability of reinstatement stated in Burge v NSW BHP Steel (2001) 105 IR 325 and as applied in Youssef v Western Sydney Area Health Service [2003] NSWIRComm 284 I consider that it is not impracticable to re-instate Mr Sharma to his former position of Security Officer at Fairfield Hospital.

285 Mr Thompson gave evidence that he had lost all trust and confidence in Mr Sharma and therefore opposed reinstatement. However the Commission has found that Mr Sharma was a truthful witness, that he did not commit misconduct and that he should not have been terminated for such. It follows therefore that there should be no basis for any lack of trust or confidence in Mr Sharma by the Health Service.

286 There was no evidence put forward that Mr Sharma was anything other than a satisfactory employee with no previous disciplinary or work performance issues. Both Mr Sharma and Mr Thompson said they had nothing personal against each other. I also note that at the time of the hearing Mr Thompson was acting up in a higher position in the Health Service and someone else was acting in his position.

287 I further note that some of the deficiencies in the security area in relation to the CCTV system have now been eliminated (the further swipe access required and improved camera surveillance of the Security Office). A reasonable period of time has also elapsed which in this instance would assist in distancing some of the obvious rancor that existed between the partes prior to Mr Sharma's termination (mainly arising in my view from the Mason report).

288 I do not consider that it would be impracticable to reinstate Mr Sharma and I propose to do so.

289 Mr Sharma worked for a period in 2005. He also travelled overseas. He gained full time employment in February this year discharging his obligation to seek to mitigate his loss. It is therefore appropriate to discount any monies he has earned in employment since his termination in calculating any quantum of back pay as well as discounting the period spent overseas. This would also take into account the length of time this matter has taken for various reasons.

290 I propose therefore to issue the following orders:

ORDERS

291 Pursuant to s. 89(1), (3) and (6) of the Industrial Relations Act 1996 , the Industrial relations Commission orders that:

1. The respondent, the Sydney South West Area Health Service, shall reinstate Sanjay Sharma to the position of Security Officer at Fairfield Hospital.

2. The period of employment of Mr Sharma shall be taken as not to have been broken by his dismissal.

3. The respondent, the Sydney South West Area Health Service, shall pay to Mr Sharma the amount he would have otherwise received had he not been dismissed less any other earnings received during the time from dismissal to reinstatement provided that such payment will not be made for any period when Mr Sharma was overseas.

4. The above Orders shall take effect within 21 days of today's date.

Elizabeth BishopCommissioner

LAST UPDATED: 01/12/2006