Victorian hospital security guard awarded $31K payout in unfair dismissal case
Victoria AU Sept 23 2019
A Latrobe Regional Hospital security guard has been awarded a payout of $31,618.34 after lodging an unfair dismissal case with the Fair Work Commission.
Michael Scott, 53, was employed at the hospital at Traralgon in Victoria’s east as a permanent part-time grade one security officer for eight years from June 2010 until August 2018.
Key points:
A security guard is awarded $31,618.34 for unfair dismissal from Latrobe Regional Hospital
The hospital said the security guard was unnecessarily aggressive when he stopped a drunk patient trying to leave the hospital
The Fair Work Commissioner found the guard’s conduct was a breach of hospital protocol, but his dismissal was harsh and unreasonable
He was sacked by the hospital and accused of serious misconduct over the way in which he restrained a drunk mental health patient who tried to leave the hospital.
On June 20, 2018 a registered nurse called a code grey at about 7:00pm when an intoxicated patient tried to leave the emergency department, barefoot, and not wearing a shirt.
He was moving slowly and was unsteady on his feet.
A code grey is called to prompt a coordinated response to emergency situations involving a personal threat.
When Mr Scott arrived at the entrance to the hospital he asked the nurse if the patient was allowed to leave, to which the nurse replied “no”.
He then stood in front of the patient to block his path and took hold of his right arm.
The patient then kicked the security guard in the groin.
The Fair Work Commission was told Mr Scott yelled “take him down” and brought his arm up around the patient’s neck and brought him to the ground.
The patient suffered a cut nose.
The Fair Work Commission was told members of the code grey response team did not arrive to help until after the patient had been restrained.
Mr Scott reported the assault to police after recording CCTV footage that had been taken of the incident on his mobile phone, without authorisation.
He showed police officers the footage and then led officers to the patient’s room without first seeking approval from the hospital coordinator or informing the nurse unit manager.
But the hospital’s human resources department failed to save the video footage, which Commissioner Tanya Cirkovic found “perplexing”.
“I would have expected the [hospital] to go to some lengths to preserve such evidence in circumstances where an investigation into the incident had commenced,” she said.
On August 6, 2018 Mr Scott was issued with a termination letter stating that his conduct on the night of June 20 amounted to serious misconduct warranting immediate termination of his employment.
During the Fair Work Commission hearing, the hospital management alleged Mr Scott was unnecessarily aggressive, got too close and “in the face” of the patient, and lost his temper and self-control when he was kicked in the groin.
Mr Scott completed practical de-escalation, engagement and prevention (DEEP) technique training in May 2018 and said he was acting in self-defence, rather than retaliation.
In her finding, Commissioner Cirkovic said she was satisfied that Mr Scott used “some” force but that it was not excessive.
The commissioner did not accept the hospital’s allegations that Mr Scott lost his temper or acted aggressively, but found he breached the hospital’s DEEP policy by getting “too close and in the face of the patient” and acted prematurely given the patient was still about 250 metres away from the freeway.
“I have found that there was a valid reason for termination in this case,” she said.
“However, this must be viewed in the context of the apparent tension between, on the one hand, Mr Scott’s responsibility to perform his role and prevent the patient from leaving the hospital and, on the other, the [hospital’s] restraint policy, requiring that he limit physical restraint to the circumstances.”
“The fault in Mr Scott’s conduct was that he acted too soon in placing himself in front of the patient and taking him down in a neck lock,” Commissioner Cirkovic said.
Commissioner Cirkovic concluded that Mr Scott’s conduct involved a breach of policy but that his dismissal was harsh and unreasonable.
Both Latrobe Regional Hospital management and Mr Scott agreed reinstatement was not an option because their employment relationship was irretrievably broken.
In a statement, Latrobe Regional Hospital chief executive Peter Craighead said he did not regret the decision to terminate Mr Scott’s employment.
“While I’m pleased the commissioner ruled against reinstating Mr Scott, we will be considering our legal options in relation to other aspects of the decision.”
Health Workers’ Union secretary Diana Asmar said the hospital had a history of poor workplace culture.
“Time and time again we see Latrobe Regional Hospital treating their workers badly,” Ms Asmar said.
The union said the hospital did not have an adequate policy for staff to deal with absconding patients.
In April, the Victorian Department of Health and Human Services ordered a review of staff culture at Latrobe Regional Hospital and its mental health centres.