A hospital security guard has won his unfair dismissal claim after being sacked for restraining a patient.
In addition, the Fair Work Commission awarded him $31,618 compensation.
The Commission found that while the hospital had a valid reason to sack the guard, it ruled the dismissal “harsh and unreasonable”.
Security guard wins unfair dismissal
Michael Scott worked as a permanent part-time security officer at Latrobe Regional Hospital from 2010 until 2018.
However, management accused him of serious misconduct over the way he man-handled a drunk mental health patient.
As a result, it terminated his employment.
Details of the incident
On June 20 2018, a registered nurse called a ‘Code Grey’ when an intoxicated patient tried to leave the emergency department barefoot and not wearing a shirt.
Additionally, he could be observed moving slowly and unsteady on his feet.
A ‘Code Grey’ is an alert to activate a coordinated response to emergency situations involving a personal threat.
When 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.
Scott yelled “take him down” and brought his arm up around the patient’s neck and brought him to the ground.
As a result of the scuffle, the patient suffered a cut nose.
WATCH THE INCIDENT HERE
Guard records CCTV footage and goes to police
Scott reported the assault to police after recording CCTV footage of the incident on his mobile phone without authorisation.
He showed police officers the footage before taking them to the patient’s room.
However, he did not seek approval from the hospital coordinator and failed to inform the nurse unit manager.
The hospital’s human resources department failed to save the 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.”
Hospital argues guard’s response ‘unnecessarily aggressive’
- described Scott’s actions as unnecessarily aggressive,
- accused him of getting too close and “in the face” of the patient,
- and also accused him of losing his temper and self-control when he was kicked in the groin.
Commission says force not excessive
Commissioner Cirkovic concluded Scott used “some” force, however, it was not excessive.
She did not accept the hospital’s claims that Scott lost his temper or acted aggressively.
However, she found he breached the hospital’s policy by getting “too close and in the face of the patient”.
Furthermore, she found he acted prematurely, given the patient was still about 250 metres away from the freeway.
“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.”
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us says the hospital overreacted to the incident.
“The more appropriate response would have been to remind Mr Scott of their polices, and even to provide some additional training,” he said.
“It must have been a difficult situation to try and manage an intoxicated person who may have been a danger to himself or others.”
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