Termination of employment – misconduct – reinstatement – s.394 Fair Work Act 2009 – applicant employed as security officer in hospital – dismissed for lodging complaint about a male colleague during ‘frisk’ search of patient – patient had been in a psychotic state and had required sedation – respondent alleged applicant’s complaint was knowingly false and intended to harass/victimise colleague, and for being untruthful during investigation – alternatively, dismissed for failing to immediately report incident – Commission found no valid reason for dismissal – no evidence of intention to harass or victimise – evidence that policies required a female to conduct search of female patient unless doing so would pose unnecessary risk – a second security guard who witnessed incident also considered conduct inappropriate – both raised issue with colleague implicated immediately and both thought further action appropriate – applicant was more senior and took responsibility for reporting allegation – reasons for unwillingness to file a police report explained and plausible – short delay in filing complaint explained – Commission unwilling to place much weight on external report given the number of factual differences in contrast with evidence – author of report unavailable for cross-examination – findings alleged by report cannot be simultaneously sustained – found applicant unfairly terminated from employment – reinstatement appropriate as not valid reason for termination existed, loss of trust and confidence alleged by respondent misguided – applicant continued to work with colleague implicated for almost 12 months after the incident up until dismissal – compensation for lost pay reduced given applicant made little attempt to mitigate losses – reinstatement with continuity of service together with an amount of eight weeks’ salary less tax ordered. Osmond v St Vincent’s Hospital Sydney t/a St Vincent’s Hospital
