DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Grace Mazi
v
Arcare Pty Ltd
(U2019/11474)

Application for unfair dismissal remedy – serious allegations – aged care industry – report of the matter to the police – implications of such for ability to continue work – no valid reason for dismissal – dismissal unfair.

INTRODUCTION

[1] Ms Grace Mazi (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) contending that the termination of her employment with Arcare Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Applicant had been employed as a registered nurse, working nightshift in the Sanctuary Manners Aged Care facility located at Sanctuary Cove on the Gold Coast. The Applicant had been employed for over one year.

[3] The Applicant considered that her dismissal was harsh, unjust and unreasonable and sought reinstatement and continuity of service and wages for the interim period, pursuant to s.391 of the Act.

[4] In terms of the termination of the Applicant’s employment, a set of allegations were contained in the ‘first letter of allegations’, provided to the employee.

[5] In this correspondence, the Applicant was directed to attend an investigation meeting to respond to these allegations. This correspondence is set out further below.

[6] The most serious of the allegations is allegation 1, where it was alleged that the Applicant engaged in elder abuse, by using unreasonable force when undertaking a suctioning procedure to assist the resident’s breathing. In addition, it was alleged the Applicant had directed a personal support worker, (working on the shift with her) to use unreasonable force to hold down the resident’s hands, when the resident, it was alleged, was not agreeable to having the procedure performed.

[7] As set out in the correspondence, the Respondent considered the Applicant’s alleged conduct constituted elder abuse and that if substantiated, would present as a contravention of the Respondent’s Senses framework, Code of Conduct, the Resident’s Charter of Rights and the Aged Care Act 1999.

[8] Prior to the investigation meeting with the Applicant, the employer, as set out below, assessed the conduct in allegation one, to be elder abuse and accordingly, the Respondent considered it necessary at that point to report the incident to the Queensland Police and the Department of Health. It was submitted that an appropriate investigation, affording the Applicant procedural fairness had not been undertaken prior to the reporting. The name of the resident/patient (as agreed) has been redacted.

[9] The allegations as set out in correspondence, refer to a period over three months (the First Allegations Letter):

“Private and Confidential

11 September 2019

Grace Mazi.

[address redacted]

Dear Grace

Re: Investigation of allegation of Serious Misconduct

I am currently investigation alleged serious breaches by you of Arcare’s Code of Conduct. More specifically, your actions in the workplace, if substantiated, are unsatisfactory and constitute serious misconduct.

It is alleged that:

1. On or around 26 August, 2019 –

I. You used unreasonable use of force when you were suctioning client [redacted] against her will;

II. During the ‘sunctioning (sic) process you directed a PSW to use unreasonable force and hold down [redacted]’s hands indicating that [redacted] was not agreeable to being suctioned.

2. On 29 June, 2019 –

I. You were rude and abusive to HRM, Patricia Ehlers, when she phone you at 11:00pm and 11:30 pm to make you aware there was an important email that had been sent to you and you were required to open your emails. During this phone call you stated you were with a ‘patient’ and would not allow Patricia to speak as you spoke over her and then hung up in her ear. It is acknowledged you asked Patricia for her phone number, however, as Patricia tried to inform you the phone call would have only taken 30 secs. It is to be noted that Patricia took the option to be transferred to the After Hours Supervisor (Grace) on the first phone call, however, as you stated you were busy Patricia waited 20 mins before making the second phone call and took the option of being transferred to the Nurses Station so she could speak to a Person Support Worker who could advise her if you were still busy and you answered the phone and again hung up in her ear;

II. You phone the Residence Manager (RM) at 23:29 pm, following Patricia’s phone call, and you were rude and abusive and informed her that you were being harassed by Patricia and that you were trying to administer S8 medications. You also said that if Patricia kept repeatedly contacting you and kept harassing you the RM would have to complete the night duty shift as you would not work if Patricia constantly harassed you. It is to be noted that a review has been conducted of the S8 Medication book and the first S8 drug that you administer that night was not signed out until 11:23 pm, after Patricia’s 2 phone calls.

3. On 30 June 2019 –

I. During a phone call at 4:40 am you were rude and abusive to the RM when she asked you if you had opened your email and you responded ‘No’. The RM tried to explain to you that an important email had been forwarded to you and you were to open your emails and you became argumentative, abusive would not listen to what she was saying and over talking her. You continued this abusive, argumentative manner throughout the phone call as the RM was trying to explain to you about the email and you were required to open it. You also started to 'rant' about Patricia harassing you and that the residents could not get their S8 medication because of Patricia. Due to your inappropriate behaviour the RM told you that she had to disconnect the call. It is to be noted as previously identified on a review of the S8 Medication book and the first S8 drug that you administered that night was not signed out until 11:23pm, after Patricia's 2 phone calls;

I. you lodged a vexatious claim against Patricia Ehlers, Human Resources Manager Qld, when you completed an Incident Report claiming that Patricia had bullied and harassed you during two (2) phone calls to you at 11 :00pm and 11 :20pm. It is to be noted in her role of HRM Patricia had a responsibility to inform you of the consequences of you taking unapproved leave and that was the purpose of the phone calls. It is also to be noted that during their working hours, it is the responsibility of After Hour Supervisors e.g. Grace that they answer and respond to any phone calls during their shifts;

II. you were belligerent and defiant in your manner when you informed the Registered Nurses by Message Board that 'Admin' had made an error as follows: 'Just to let you know I am on leave from 30.6.2019 to 23.7.2019. Admin must have forgotten to take me off the roster. Please liaise with Glenice about replacement- Thanks'; This was after speaking to the RM at 4.40am who had rang you to reinforce and advise you to read your email from HR regarding taking unauthorised leave.

4. On 8 September, 2019 –

I. when you were informed that client Pat, Room 18, said she had a sore throat and couldn't swallow you gave her 50mg Tramedol medication (note Medman indicates that this medication is for abdominal pain) and Pat did not wake up until 0500 expressing concerns regarding the medication you gave her saying words to the effect, 'what happened? ... I can remember the nurse giving me the tablet, but I can't remember anything else after that, was I unconscious';

II. you thought it was funny when you were made aware that Room 7 had buzzed for pain relief for her sore foot around 1 :30am and you forgot to give it to her until you were reminded again around 05:14am;

III. when the client in Room 3 had buzzed for a third time to go to the toilet you answered the buzzer and told client Yvonne she had already been to the toilet and that she had to wait;

IV. when the client in Room 2 had been up to the toilet quite a few times around 2:00am you asked the PSW if the client had any pain and the client said that he had no pain whatsoever. You stated if the client gets up again that you would just give him something although he had not requested any medication;

5. During the night shift on 8 & 9 September, 2019 it has been alleged as follows:

I. You left client Betty's room in a dirty state following her cares as you left her in sheets that had faeces on them as well as leaving her used pad with faeces in it on the toilet seat;

II. You falsified documentation and did not follow Policy as you documented that you administered Resource to (redacted) at 6:00am as a full glass of Resource was found in (redacted) room indicating that you did not sight (redacted) taking the Resource and (redacted) not receiving the Resource;

III. Although you had been directed to ensure client (redacted) was showered during the night shift as she was going to hospital in the morning to have an operation you did not shower (redacted). The PSW on duty asked you to assist her to shower (redacted) as she was a two person assist and you told her you would not assist her;

IV. On a number of occasions, you have encouraged the PSWs who have been rostered to work with you to work outside of their scope by telling them to administer medications and they have informed you they are not able to administer medications.

Your alleged actions have compromised the health, safety and wellbeing of a number of Arcare clients and staff.

Arcare views these alleged behaviours as constituting Elder Abuse. If substantiated, these actions are in clear contravention of Arcare's Senses Framework, Code of Conduct, Residents' Charter of Rights, and the Aged Care Act 1997. The alleged behaviour has caused stress to both clients and staff members.

Under mandatory reporting requirements, incident '1' has been reported to the Queensland Police and the Department of Health.

You are therefore required to attend an investigation meeting at Arcare Hope Island on Wednesday, 18 September 2019 at 3pm. In attendance at the meeting will be Jan Skinner, Regional Support Manager and myself. You may bring a support person of your choice to this meeting. If you do intend to bring a support person, please advise me directly not less than 24 hours prior to the meeting.

At this point in time, the above are allegations only and no conclusions have been reached. The purpose of this meeting is to provide you with the opportunity to respond to the allegations. This information will be vital in enabling us to assess whether the allegations are substantiated or not. Should you fail to attend the meeting without an acceptable reason, it will be assumed that you accept the validity of the allegations made against you and any disciplinary action that may result.

If not substantiated, there will be no further action. If substantiated, it could lead to one or more of the following outcomes:

1. Counselling or Mediation

2. Training

3. Performance Improvement Plan

4. Written Warning

5. Summary dismissal

You are formally directed not to discuss the nature of the investigation with any other staff, residents, their families or any other parties associated with Arcare; failure to adhere to confidentiality, if substantiated, may result in disciplinary action up to and including termination of employment.

Please also be aware that subjecting, or threatening to subject, any person who has been involved in this matter to any form of disadvantage or victimisation will not be tolerated.

Grace, it is appreciated that being the subject of an allegation and involvement in the subsequent investigation can be difficult for you. Please do not hesitate to use the Employee Assistance program on (redacted), which is a completely confidential counselling service provided at no cost to you.

Any queries you have should be directed to myself.

Yours sincerely,

Dominic Calabro
Group Manager - Human Resources”

[10] The Applicant was suspended on pay from this date.

[11] At the hearing in this matter the Respondent conveyed that the resident, (unrelated to current matters) had since passed away and that the parties agreed that her name be redacted and that she should be referred to as a resident, in the proceedings, in order to deidentify her from the record.

[12] Subsequently, the Applicant received a second letter from the Respondent including further allegations (the Second Allegations Letter), namely that while she was suspended:

•  the Applicant entered the Facility, accessed the IT system, printed off personal information, and removed property from the facility;

•  her conduct breached the Respondent’s Policy and Procedure – Suspending an Employee, Respondent’s Values and Conduct, and the Applicant’s Position Description; and

•  the Applicant would be given an opportunity to respond to these allegations at the meeting.

[13] Further correspondence, being the outcome of the investigation, was sent by the Respondent, to the Applicant as set out below.

[14] The Respondent by that correspondence, relied on those allegations for the dismissal. They stated that the allegations were substantiated and further relied on what they stated was the Applicant’s lack of cooperation throughout this performance process to terminate the Applicant’s employment effective immediately (the termination letter).

[15] The termination letter stated:

“Dear Grace

Re: Outcome of Investigation

As discussed during our meeting on 18 September, I am writing to advise you of the outcome of the investigation regarding the alleged breaches of Arcare Policy and Procedure – Suspending an Employee, Arcare Values and Code of Conduct, your Position Description and your Employment Agreement.

On 18 September 2019, you attended a scheduled disciplinary meeting with Jan Skinner, Regional Support Manager and myself. The meeting was to provide you with an opportunity to discuss the nature of the allegations in the letters issued to you dated 11 and 15 September 2019.

It is to be noted prior to you receiving these letters outlining allegations regarding your performance and behaviour, I met with you on 12 September to discuss areas of concerns previously raised by you and advised your comments were noted and have been considered.

On completion of this meeting I attempted to hand you the letter dated 11 September explaining that allegations had been made in relation to your performance and behaviour.

As you know, at the time, you refused to take the letter and you were told the letter would be emailed to you. In addition to emailing you the letter that afternoon, it was also posted and couriered to your home address the next day (13 September 2019). This letter clearly stated, ‘You may bring a support person of your choice to this meeting’. In addition to this letter, as Arcare received further allegations which occurred on Saturday 14 September, you were again forwarded a letter on 16 September where you were again invited to bring a support person to the meeting and, as you did not bring a support person to the meeting, you declined this offer.

It is appreciated you state prior to the meeting that you would not be able to answer any of the questions, however Arcare contends that you had sufficient time to prepare a response to the allegations as well as have time to organise a Support Person to attend. In addition, at the commencement of the meeting you were asked again about a Support Person and as there was no support person the meeting commenced as scheduled.

The following allegations were alleged:

On or around 26 August, 2019 –

You used unreasonable use of force when you were suctioning client (redacted) against her will;

Response: ‘No Response”

During the ‘sunctioning’ process you directed a PSW to use unreasonable force and hold down (redacted) hands indicating that (redacted) was not agreeable to being suctioned.

Response: ‘No Response”

during the 'suctioning' process you directed a PSW to use unreasonable use of force and hold down (redacted) hands indicating that (redacted) was not agreeable to being suctioned.

Response: 'No Response'

It is to be noted in relation to 1 (I), (II) and (Ill) that Arcare have received statements from two (2) team members who have stated that on four (4) separate occasions you had requested the team members to hold client (redacted) hands while you suctioned her against her will.

In consideration of your lack of response and the information to hand the allegations that you used unreasonable use of force when you suctioned client (redacted) against her will and asked team members to hold her hands down during the suctioning process is substantiated.

On 29 June, 2019 –

You were rude and abusive to HRM, Patricia Ehlers, when she phone you at 11:00pm and 11:30 pm to make you are there was an important email that had been sent to you and you were required to open your emails. During this phone call you stated you were with a ‘patient’ and would not allow Patricia to speak as you spoke over her and then hung up in her ear. It is acknowledged you asked Patricia for her phone number, however, as Patricia tried to inform you the phone call would have only taken 30 secs. It is to be noted that Patricia took the option to be transferred to the After Hours Supervisor (Grace) on the first phone call, however, as you stated you were busy Patricia waited 20 mins before making the second phone call and took the option of being transferred to the Nurses Station so she could speak to a Person Support Worker who could advise her if you were still busy and you answered the phone and again hung up in her ear;

Response: 'No Response'

It is to be noted that Patricia, in her role of HRM, had a responsibility to make you aware of the consequences of your actions if you went on unapproved unauthorised leave as of 30 July, 2019 and she wanted to ensure you received the email informing you of these consequences. On both occasions Patricia phoned you, you yelled over her and hung up in her ear. It is acknowledged during the first phone call that you asked Patricia for her telephone number, however, as the phone call would have only taken 30 seconds and it was 11:00pm Patricia wanted to ensure you received the information prior to her going to bed.

In consideration of your lack of response and the information to hand the allegation that you lodged a vexatious claim against Patricia has been substantiated on the balance of probabilities.

You phone the Residence Manager (RM) at 23:29 pm, following Patricia’s phone call, and you were rude and abusive and informed her that you were being harassed by Patricia and that you were trying to administer S8 medications. You also said that if Patricia kept repeatedly contacting you and kept harassing you the RM would have to complete the night duty shift as you would not work if Patricia constantly harassed you. It is to be noted that a review has been conducted of the S8 Medication book and the first S8 drug that you administer that night was not signed out until 11:23 pm, after Patricia’s 2 phone calls’

Response: 'No Response'

It is to be noted that during your phone call to the RM you stated that you were being harassed by Patricia and, as Patricia had only phoned twice, this would not be considered 'harassment'. In addition, you told the RM that you were administering S8 medications (refer to 3 (I) below), however, you were not truthful to the RM as, on review of the S8 Medication Sign Out Book the first S8 medication you administered on the night was 11 :23pm, after both of Patricia's phone calls to the Service.

During this phone call you also threatened the RM that if Patricia did not cease phoning you, you would leave the Service and she would have to go to the Service to complete your rostered shift. You also would not let the RM speak as you talked over her in a raised and abusive tone.

In consideration of your lack of response and the information to hand the allegation that you were rude and abusive and threatened the RM has been substantiated on the balance of probabilities.

On 30 June 2019 –

During a phone call at 4:40 am you were rude and abusive to the RM when she asked you if you had opened your email and you responded ‘No’. The RM tried to explain to you that an important email had been forwarded to you and you were to open your emails and you became argumentative, abusive would not listen to what she was saying and over talking her. You continued this abusive, argumentative manner throughout the phone call as the RM was trying to explain to you about the email and you were required to open it. You also started to 'rant' about Patricia harassing you and that the residents could not get their S8 medication because of Patricia. Due to your inappropriate behaviour the RM told you that she had to disconnect the call. It is to be noted as previously identified on a review of the S8 Medication book and the first S8 drug that you administered that night was not signed out until 11 :23pm, after Patricia's 2 phone calls;

Response: 'No Response'

It is to be noted that during this phone call the RM tried to explain to you that you were to ensure you opened your emails as there was a letter that you needed to read prior to going home regarding you potentially going on unapproved unauthorised leave. You yelled over the top of the RM and were 'ranting' about Patricia harassing you when Patricia had only made two (2) phone calls to you the first one at 11 :00pm and the second phone call at 11 :20pm. You also told the RM that you were busy administering S8 medications, however, as indicated above the first S8 medication you administered on the night was at 11 :23pm, after Patricia's phone calls.

In consideration of your lack of response and the information to hand the allegation that you were argumentative, abusive would not listen to what the RM was saying and over talking her has been substantiated on the balance of probabilities.

you lodged a vexatious claim against Patricia Ehlers, Human Resources Manager Qld, when you completed an Incident Report claiming that Patricia had bullied and harassed you during two (2) phone calls to you at 11 :00pm and 11 :20pm. It is to be noted in her role of HRM Patricia had a responsibility to inform you of the consequences of you taking unapproved leave and that was the purpose of the phone calls. It is also to be noted that during their working hours, it is the responsibility of After Hour Supervisors e.g. Grace that they answer and respond to any phone calls during their shifts;

Response: 'No Response'

It is to be noted that Patricia made two (2) phone calls to the Service to inform you that you needed to open your emails. In Patricia's role of HRM it is part of her responsibility to advise you in HR matters and the two (2) phone calls have not been considered 'excessive' resulting in an harassment claim.

In consideration of your lack of response and the information to hand the allegation that you made a vexatious claim against HRM Patricia Ehlers has been substantiated

you were belligerent and defiant in your manner when you informed the Registered Nurses by Message Board that 'Admin' had made an error as follows: 'Just to let you know I am on leave from 30.6.2019 to 23.7.2019. Admin must have forgotten to take me off the roster. Please liaise with Glenice about replacement- Thanks';

Response: 'No Response'

It is to be noted during the month of July you were regularly informed that your application for leave had not been approved and the sending of the Message Board knowing the leave was not approved was not an 'error' from Admin.

In consideration of your lack of response and the information to hand the allegation that you were belligerent in your manner when you informed the Registered Nurses that Admin had made an 'error' was substantiated.

On 8 September, 2019 –

when you were informed that client Pat, Room 18, said she had a sore throat and couldn't swallow you gave her 50mg Tramedol medication (note Medman indicates that this medication is for abdominal pain) and Pat did not wake up until 0500 expressing concerns regarding the medication you gave her saying words to the effect, 'what happened? ... / can remember the nurse giving me the tablet, but I can't remember anything else after that, was I unconscious’.

Response: 'No Response'

It is to be noted that client Pat was regularly prescribed Tramedol for abdominal pain, however, in this instance Pat had informed team members that he was experiencing a sore throat and you administered a medication for abdominal pain.

In consideration of your lack of response and the information to hand the allegation that you administered Pat an abdominal medication for a sore throat has been substantiated.

you thought it was funny when you were made aware that Room 7 had buzzed for pain relief for her sore foot around 1 :30am and you forgot to give it to her until you were reminded again around 05:14am;

Response: 'No Response'

It is to be noted that this incident was reported by a team member on shift.

In consideration of your lack of response and the information to hand the allegation that you thought it was funny when you forgot to give client in Room 7 pain relief for a sore foot was not able to be substantiated. When the client in Room 3 had buzzed for a third time to go to the toilet you answered the buzzer and told client Yvonne she had already been to the toilet and that she had to wait;

Response: 'No Response'

It is to be noted that this incident was reported by a team member on shift.

In consideration of your lack of response and the information to hand the allegation that you told client Yvonne she had already been to the toilet and had to wait was not able to be substantiated. When the client in Room 2 had been up to the toilet quite a few times around 2:00am you asked the PSW if the client had any pain and the client said that he had no pain whatsoever. You stated if the client gets up again that you would just give him something although he had not requested any medication;

Response: 'No Response'

It is to be noted that this incident was reported by a team member on shift.

In consideration of your lack of response and the information to hand the allegation that you said that you would give client in Room 2 'something' if he got up again was not able to be substantiated.

During the night shift on 8 & 9 September, 2019 it has been alleged as follows:

You left client Betty's room in a dirty state following her cares as you left her in sheets that had faeces on them as well as leaving her used pad with faeces in it on the toilet seat;

Response: 'No Response'

It is to be noted that this incident was reported by a team member on shift and pictures of the state of the room were provided.

In consideration of your lack of response and the information to hand the allegation that you left the room in a dirty state has been substantiated on the balance of probabilities (please refer to allegation 5 II below re you being in the room around the time of the incident).

You falsified documentation and did not follow Policy as you documented that you administered Resource to Betty at 6:00am as a full glass of Resource was found in Betty's room indicating that you did not sight Betty taking the Resource and Betty not receiving the Resource;

Response: 'No Response'

It is to be noted that this incident was reported by a team member on shift.

In consideration of your lack of response and the information to hand the allegation that you falsified documentation and did not follow Policy as you documented that you administered Resource to Betty and the full glass of Resource was found in Betty's room indicating that you did not sight Betty take the Resource has been substantiated.

Although you had been directed to ensure client (redacted) was showered during the night shift as she was going to hospital in the morning to have an operation you did not shower (redacted). The PSW on duty asked you to assist her to shower (redacted) as she was a two person assist and you told her you would not assist her;

Response: 'No Response'

It is to be noted that a team member working on the night shift with you requested that you assist her with manual handling (redacted) to enable her to be showered and you refused to assist. It is also noted that you stated that if both the PSW and yourself showered (redacted) you would both be taken off the floor and unable to assist other clients. It is further noted, however, that (redacted) only requires two assist for manual handling and the PSW stated she could shower her by herself.

In consideration of your lack of response and the information to hand the allegation that, although you had been informed that (redacted) required a shower as she was being taken to hospital the next morning for an early morning operation, has been substantiated.

On a number of occasions, you have encouraged the PSWs who have been rostered to work with you to work outside of their scope by telling them to administer medications and they have informed you they are not able to administer medications.

Response: 'No Response'

It is to be noted that this incident was reported by a number of team members who have been rostered to work with you on your shift.

In consideration of your lack of response and the information to hand the allegation that you encouraged PSWs to work outside of their scope by telling them to administer medications when they are only able to assist with medications has been substantiated.

In letter dated 16 September you were advised of further allegations that occurred on 14 September 2019, while suspended from duty, you breached Arcare Policy and Procedure -Suspending an Employee, Arcare Values and Code of Conduct, your Position Description and your Employment Agreement

Although, when you were suspended, you were informed you could not enter Arcare premises, you disregarded this lawful managerial directive when you entered Arcare Sanctuary Manors without authority around 5:00pm;

Response: 'No Response'

It is to be noted that Arcare has CCTV footage of you arriving at the Service around 5:00pm and you stayed at the Service for approximately 2 hours.

In consideration of your lack of response and the information to hand the allegation that when you were suspended you ignored a lawful managerial directive and entered Arcare Sanctuary Manors without authority has been substantiated.

You accessed Arcare IT systems without approval or authority while you were on the Sanctuary Manors premises;

Response: 'No Response'

It is to be noted that Arcare has CCTV footage of you sitting at the computer at the Nurses' Station for approximately 2 hours.

In consideration of your lack of response and the information to hand the allegation that you accessed Arcare IT systems without approval or authority has been substantiated.

You printed off personal information regarding Arcare clients without the approval of the clients or authority from Arcare;

Response: 'No Response'

It is to be noted that Arcare has a copy of a list of 25 items printed from the Arcare printer over the two (2) hour period you were in the Service and sitting at the computer. It is also to be noted that you did not use your sign in you used the sign in of an Agency staff member which is against Arcare Policy and there was no Agency staff member on duty at the time.

In consideration of your lack of response and the information to hand the allegation that you printed off personal information regarding Arcare clients without their approval or authority from Arcare has been substantiated.

You removed Arcare property from Arcare Sanctuary Manors, namely the personal and clinical information of Arcare clients, without the clients' approval and Arcare authority;

Response: 'No Response'

It is to be noted that Arcare has CCTV footage of you placing large amounts of paper in your handbag which you took with you when you left the Service. It is also to be noted that team members rostered at the time also advised that you printed off large amounts of paper and the paper was not found at the Service after you left.

In consideration of your lack of response and the information to hand the allegation that you removed personal and clinical information about Arcare clients without the clients' approval or authority from Arcare has been substantiated.

Although the letter dated 12 September, 2019 stated, 'You are formally directed not to discuss the nature of the investigation with any other employees, residents, their families or any other patties associated with Arcare; failure to adhere to confidentiality, if substantiated, may result in disciplinary action up to and including termination of employment', you disregarded this lawful managerial directive as you approached and questioned team members on duty at the time you entered Arcare Sanctuary Manors without Arcare authority.

Response: 'No Response'

It is to be noted that team members who working at the time you entered the premises have provided a statement stating that you asked them about PSWs administering medications.

In consideration of your lack of response and the information to hand the allegation that you breached confidentiality and spoke to team members regarding the allegations listed in your letter dated 11 September, has been substantiated.

As you did not provide a response to any of the allegations above, indicating that you have not participated or cooperated with the process I inform you that you have breached Arcare's Enterprise Agreement as Arcare considers your responses unsatisfactory.

You are advised, in respect of the substantiated allegations above and your lack of cooperation throughout this performance process Arcare has decided to terminate your employment effective immediately. Your last day of employment is today, 20 September, 2019.

You are further advised, as Arcare considers the breaches are significant, you are summarily dismissed for serious misconduct and no notice period will be paid.

It is a requirement for all Arcare staff to return all of Arcare property and you are required to return your fob, keys, ID badge or any other property you may have in your possession to the Residence Manager, Arcare Sanctuary Manors, by close of business Monday 23 September, 2019.

I trust that this finalises the matter and expect that confidentiality will be maintained with respect to the nature and outcome of this investigation.

Yours sincerely,

Dominic Calabro

Group Manager - Human Resources”

[16] Both legal representatives were given permission to appear. The Applicant was represented by Ms Polina Kinchina, of Counsel, instructed by Mr Alexander Williams of Hall Payne Lawyers. The Respondent was represented by Mr Vince Rogers, Partner of Ashurst Australia (and then Landers and Rogers) instructed by Ms Patricia Ehlers, Human Resources Manager of the Respondent. Both parties were granted permission to appear pursuant to s.596 of the Act, due to the matters having some complexity and the dismissal having significant implications (with regard to the reporting of alleged elder abuse) and the potential repercussions of a finding of such, for the Applicant’s continuation as a registered nurse.

[17] It should be noted that the Respondent had legal representation at the Hearing, who had advised that he had been briefed, in the week before the Hearing, at a time when the Respondent participated in a Member Assisted Conciliation (MAC), before another Member. The Respondent’s legal representative sought to halt the proceedings (at the commencement of the Hearing) and sought fresh Directions to be set then, to allow for the filing of further evidence and submissions. This application was not foreshadowed at any time prior to the Hearing by the legal representative or the Respondent’s Senior Human Resources Officers. The Respondent’s senior personnel involved in this matter, had previously been put on notice by the Commission and the Applicant’s legal counsel, regarding the limited nature of the evidence they had filed. This matter was brought to the Respondent’s attention prior to the Hearing, in circumstances where the Applicant’s representatives had raised written concerns regarding imposing further costs on the Applicant. Further, the Applicant’s representative prior to the Hearing, when a MAC was under consideration, set out that delaying the matter and further costs would cause significant prejudice to the Applicant.

[18] There was a range of email correspondence between the parties prior to the Hearing dealing with this issue, in which the Applicant’s legal representative set out their objections to further evidence and objecting to the Respondent calling several witnesses who had not provided witness statements in the proceedings.

[19] At the commencement of the Hearing, both parties made lengthy submissions regarding the request on behalf of the Respondent for the late provision of new material and witnesses. I put the Respondent on notice that my provisional view was that there would be significant prejudice, to the Applicant, in allowing further material to be filed so late. The following is an extract of the exchange that occurred on this matter at the outset of the Hearing:

“MR ROGERS:  Commissioner, there's a couple of things I would like to raise and foreshadow and I'm conscious very much of the various communications that have been exchanged - - -

THE COMMISSIONER:  Yes, I'm in receipt of those.

MR ROGERS:  - - - in relation to those matters.  There are a couple of things that we would like to press.  The orders that were made yesterday we did not have an opportunity to be heard in relation to those matters.

THE COMMISSIONER:  Sorry, the orders?

MR ROGERS:  The orders that witness evidence could not be led by either Dominic Calabro, who is the general manager - - -

THE COMMISSIONER:  When you say orders there was no application, Mr Rogers.

MR ROGERS:  No, but it was that evidence would not be accepted from those witnesses, and that would certainly be something that we were wishing to seek this morning in relation to those particular witnesses.

THE COMMISSIONER:  It's just it's very late.  At this stage I see considerable prejudice to - and for the record I'm well aware, Mr Rogers, you have come into this matter significantly late and I think were instructed last Friday, as I understand.

MR ROGERS:  I can clarify certain aspects.  We were - received initial instructions during the course of Tuesday afternoon in a limited - - -

THE COMMISSIONER:  Still late.

MR ROGERS:  Yes, agree.  In a limited context more to comment in advance of a conference that was before Asbury DP on Friday.

THE COMMISSIONER:  I don't want any - - -

MR ROGERS:  Yes.

THE COMMISSIONER:  Yes.

MR ROGERS:  And to give certain advice, and then it was only in the afternoon of Friday that I was then instructed to then go - seek to go on the record and seek to represent the company in relation to these proceedings, and that's when the notice was then lodged, and thankfully you granted leave on Tuesday of this week.

That has meant that, and fully cognisant of the fact that the company had not complied with provisional statements in accordance with the directions and that they should've been provided on 13 January, and it's a case where people internally within the organisation, for whatever reason, weren't fully cognisant of what was required of them, notwithstanding the directions had been issued.  The fact is that they did seek some guidance from in-house counsel.  Unfortunately that in-house counsel within the company do not have experience in this area of the law and hence weren't able to sort of give direction as to what approach Ms Ehlers, who was the person who was preparing that material, had to address.

You will have noted that the submissions are detailed in terms of putting out factually aspects of the company's case, and certainly one of the things I would wish to propose is that if evidence was able to be granted on the basis that the company's witnesses were simply addressed factually what has already been put in the submissions it's one aspect we would ask the Commission to consider.

A further aspect is that, as I said as you were aware, the first time that we were able to meet with key witnesses was unfortunately Wednesday of this week.  That was also in relation to the provision of key documentation which I fully acknowledge is completely late when it's been delivered and served after 5 pm yesterday, but that was the material that we had received, had to digest, consider, work through and then work out what is pertinent and relevant in terms of this case, and that was the material that was then provided late yesterday.

THE COMMISSIONER:  But, Mr Rogers, as of Friday, as I understand it, of last week, 24 January, I am assuming on moving through the respondent's documents that it would've been evident that there were only two statements from the complainants.

MR ROGERS:  I did know that, yes.  But I also didn't know factually the company's position on a whole range of other matters apart from what was in those two statutory declarations.

THE COMMISSIONER:  But the submissions are, as you say, relatively detailed.

MR ROGERS:  Detailed.

THE COMMISSIONER:  And point out what the employer's allegations are and the date of meetings and other allegations, so on reading those submissions that is the case, as I understand, that the employer is adopting against the applicant, but there is - whilst they put those in the submissions there is no other witness evidence in relation to those matters, so that would've been evident at that time.” 1

[20] Taking into account all matters, after adjourning to consider the submissions, I decided (on the transcript) not to allow further material to be filed in relation to the matter (and not to allow new witnesses to be introduced, who had not provided statements of evidence). The Respondent had been on notice of these matters for a significant period of time and had made submissions in relation to the application. I did open the possibility for the Respondent to put particular documents to the Applicant, while allowing the Applicant to be recalled to give further evidence in relation to these documents, if required, after they had been put to the Respondent’s witnesses. However, I expressed concern about the introduction of the documents, as follows:

“THE COMMISSIONER:  That's the concern I have, Mr Rogers, is that information contained in these emails do elaborate and do extend the nature of the allegations and the detail around those, detail which was not conveyed to the applicant prior to the termination, detail which she has not had since the termination as I understand, and I put the caveat, because I'm looking at these documents quite quickly, but also that they have not been a feature of the case which she has responded to in relation to this matter.

So my clear preference is for the applicant to provide her evidence.  If in fact when we move to the evidence that, as prepared, the evidence has been provided for the two respondent witnesses, if there are matters that you are seeking to elaborate there by that time at least counsel would've had more ability to look at those particular documents, but if they are documents that provide new allegations that's going to provide the difficulty.

MR ROGERS:  Right.  Well, obviously documents are one thing.  When the witnesses talk about the concerns they had for resident (Name redacted) the manner in which they felt that that resident was being treated why they had a concern that it constituted assault it's that evidence which they will be giving, and, as I said, it's that evidence which is I think only fair that the applicant hears from them.

THE COMMISSIONER:  You're at liberty to re-examine, and the applicant's representative will be cross-examining them on those matters too.  If things fall from those particular matters then you can re-examine them on those matters, Mr Rogers.

MR ROGERS:  Yes.  No, absolutely, but I'm saying that I would've thought it's better for us to go first so the applicant hears that evidence.

THE COMMISSIONER:  The respondent was on notice of the case that they had to defend.  They referred the applicant to the police on the basis of the particular concerns, so they were well aware in relation to all of these matters.  I'm not pre-determining the matter.

MR ROGERS:  No.

THE COMMISSIONER:  I'm trying to provide procedural fairness.  So we have an applicant that's coming to answer a particular case, and the case has been on all fours.  It's been back and forth between the parties for some time, so at this late stage to start to introduce new material of extended allegations, now, I don't think that you are - you can refrain from - or I'm not asking you to refrain from asking further questions if it falls from cross-examination.  And if I ask a question and you think new material is provided you will be at liberty to re-examine in relation to that matter as well.

MR ROGERS:  These are the two witnesses that were present on these occasions.

THE COMMISSIONER:  Yes, and they've provided statements.

MR ROGERS:  Yes.

THE COMMISSIONER:  Those statements were given to the employer and if the employer did not think that they were satisfactory in establishing the grounds for the termination they were at liberty to ask them some further questions or in fact to bring further evidence in relation to the matter.  I mean, that's the - - -

MR ROGERS:  Yes.  But I would certainly still be entitled to ask them questions as to why they felt it - - -

THE COMMISSIONER:  You're making your application - - -

MR ROGERS:  - - - was a concern.

THE COMMISSIONER:  - - - to provide additional evidence-in-chief, because you're well-versed in the procedures of these hearings that both parties come to the Commission answering the case that they are well aware of.

MR ROGERS:  Yes.

THE COMMISSIONER:  And on this being costs expended for the applicant in answering a particular case.  The employer is coming and endeavouring to extend the case or provide additional material in relation to the matters on which they base their decision.  Now - - -

MR ROGERS:  But it's not uncommon that you might have a witness statement and you might want them to then elaborate further what did they mean by this.

THE COMMISSIONER:  Both parties are legally represented.

MR ROGERS:  Yes.

THE COMMISSIONER:  If we open the evidence for the applicant, if a question is asked the counsel for the other party is well-versed to be able to object and I can caution the witness not to answer the question if there is an objection until we've dealt with that particular matter.

MR ROGERS:  Okay.

THE COMMISSIONER:  Can we proceed on that basis?

MR ROGERS:  Yes.  Thank you.

MS KINCHINA:  Absolutely.  And I should say that I really appreciate that the strict rules of evidence don't apply here, but this is not necessarily the usual termination of employment case.  It's a very serious one and as the complainant - - -

THE COMMISSIONER:  I treat them all as serious, and I'm not strictly bound by the rules of evidence, but certainly we do have directions that set out an orderly way to approach a hearing, and I have to be mindful that both parties have been on notice of the orderly way in which documents will be filed.  And I think there has been in relation to this particular matter notice to both parties along the way.” 2

[21] As was stated on the transcript, to allow the Respondent to provide a significant additional bundle of documents and witness statements at the commencement of the proceedings and or to adjourn the proceedings would have provided significant prejudice to the conduct of the case by the Applicant’s representatives. The Applicant would have been subject to further costs in the matter, as was set out in the correspondence and exchanges on the transcript. It was considered inappropriate to allow the Respondent, who had been on notice of the limited nature of the evidence that they had provided and the serious basis for the dismissal, to provide additional material at the commencement of the Hearing. The Respondent had senior in house Human Resources personnel, managing the matter.

[22] The Respondent was afforded the opportunity to provide whatever information they required on the issue of remedy. The matter was able to be addressed when further directions were set after the Hearing. In addition, a further Direction was afforded specifically to provide any other submission or evidence in this regard. At this further time, they did provide an additional statement of Ms Ehlers. The further statement outlined Ms Ehlers’ view (on behalf of the Respondent) that reinstatement was not an appropriate remedy on the basis of the alleged conduct of the Applicant and the irreparable breakdown of the relationship between the Respondent and the Applicant. This statement has been considered and is laid out in greater detail below.

RELEVANT LEGISLATION

[23] Section s.394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under

Division 4 granting a remedy.

Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2:For application fees, see section 395.

Note 3:Part 6 1 may prevent an application being made under this Part in relation to a

dismissal if an application or complaint has been made in relation to the dismissal

other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[24] Further, ss.385, 386 and 387 of the Act relevantly provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[25] As to any remedy to be ordered, s.390 of the Act provides:

“390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

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

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

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

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

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

SUMMARY OF THE APPLICANT’S MATERIAL

[26] The Applicant submitted that on 12 September 2019, the Respondent provided the Applicant with the First Letter of Allegations (as set out above) which stated that:

(a) on 26 August 2019, the Applicant used unreasonable force when suctioning the Resident and that she directed a personal support worker to use unreasonable force to hold down the Resident’s hands;

(b) this incident had been reported to the Queensland Police Service and the Department of Health; and

(c) the Applicant was required to attend an investigation meeting at the Facility on 18 September 2019. 3

[27] At a meeting on 12 September, the Applicant was advised she was suspended from duty. The Applicant submitted that the effect of the suspension, was not explained to her and she was not provided with the suspension policy. The Applicant submitted that she was on notice that she was to answer various serious allegations, that could end her nursing career. The Applicant submitted it was not explained to her that she couldn’t enter the Aged Care facility or access electronic files, and because she had never been suspended before, she did not realise that she was not permitted to do these things. The Applicant also considered that without access to the relevant documents she could not properly assess the allegations. A number of the allegations referred to daily nursing management matters that occurred 3 months prior.

[28] On 13 September, the Applicant applied for assistance from the Queensland Nurses and Midwives Union (QNMU) in the hope of obtaining a representative and legal advice to assist with responding to the allegations.

[29] On 14 September, the Applicant attended the facility and accessed the IT system, printed and allegedly removed some documents from the facility. The Applicant submitted that this was for the purpose of informing and preparing her response to the allegations. She argued that the response was critical to her on-going work as a nurse, given the significant repercussions of the findings in relation to the allegations of elder abuse and the referral of such matters.

[30] On 16 September, the Respondent provided the Second Letter of Allegations, which stated that on 14 September 2019, the Applicant entered the Facility, accessed the IT system, printed off personal information, and removed property from the Facility; her conduct allegedly breached the Respondent’s Policy and Procedure – Suspending an Employee, Respondent’s Values and Conduct, and the Applicant’s Position Description; and the Applicant would be given an opportunity to respond to these allegations at the meeting on 18 September.

[31] On 17 September, the Applicant emailed the Respondent seeking permission to access records necessary to respond to the allegations. This was denied by the Respondent.

[32] On 18 September, the QNMU notified the Applicant due to the employer making criminal allegations against her in conjunction with the dismissal allegations before the Commission, given the reporting of the elder abuse allegations (and the implication of such for her), they would not be able to represent her and recommended that she obtain legal representation, given the associated criminal allegations and the repercussions of such for her nursing career. The QNMU informed the Applicant of her right of privilege against self-incrimination in responding to questions at this time.

[33] The Applicant submitted she became concerned about attending the meeting by herself and informed the Respondent via email that due to the criminal allegations, she wanted to obtain legal advice, and asked for the meeting to be adjourned for six days to allow her to obtain legal advice and representation. The Respondent refused to adjourn the meeting, and the Applicant advised that she would attend the meeting as required, but that for the reasons she previously stated she would not be able to respond to the allegations. The Respondent was clearly on notice of the Applicant’s position in this regard.

[34] At the meeting, the Applicant reiterated that she would not be able to answer any questions regarding the criminal allegations. She did not answer any questions, given her concerns of self-incrimination and the Applicant submitted that she was claiming privilege against self-incrimination in all instances.

[35] The Applicant attended the meeting and as per her communicated position, did not respond for fear of the effect on her nursing registration. On 20 September, the Applicant was provided with the Termination Letter.

Opportunity to respond

[36] The Applicant submitted that prior to the dismissal, she was only informed of one allegation in relation to the suctioning procedure, namely the allegation in respect of the procedure conducted on 26 August 2019. The Applicant submitted that she was then dismissed on the basis of the presentation of four alleged incidents involving the suctioning procedure. She stated that she was not informed of the three additional allegations relating to the suctioning procedure or given an opportunity to respond to the allegations. The Applicant also submitted that no documents or evidence in support of the allegations were provided, other than those set out in the allegation letters.

[37] The Applicant submitted that there were only three business days between the receipt of the First Allegations Letter and the meeting, and only one clear business day between receipt of the Second Allegations Letter and the meeting in which she was expected to respond. Further, that there were numerous allegations and ‘sub-allegations,’ which were serious in nature and could have had significant professional and personal consequences and some capable of constituting criminal offences.

[38] The Applicant submitted that the dismissal was procedurally and substantively unfair because the Applicant was denied an opportunity to properly consider; nor have the ability to respond to the three additional allegations. The Applicant contended, the Respondent knew some of the additional allegations were unclear and unfounded.

[39] The Applicant also pointed to the critical fact that the Respondent had reported the Applicant to the Queensland Police Service and Department of Health, and had made the decision to suspend the Applicant, ahead of the 12 September meeting. The Applicant further submitted that the statement of Ms Julie Ann Clark, prepared and presented to the Respondent on 15 September 2019, was substantially in the same terms as her statutory declaration in the matter before the Commission.

[40] The Applicant submitted that the refusal of an adjournment by the Respondent was also of note, as the Applicant made the Respondent aware she was seeking legal advice and would have known the Applicant, was not fairly aware of all the allegations against her.

[41] The Applicant further submitted that it was reasonable and necessary for an adjournment of the 18 September meeting to be granted. The Applicant cited a number of factors as to why the adjournment was reasonable and necessary:

(a) the sheer number of the allegations in First Letter of Allegations and the Second Letter of Allegations;

(b) the seriousness of some the allegations;

(c) the timing of provision of these letters by reference to the meeting of 18 September 2019 (only three clear business days after receipt of the First Letter of Allegations, and only one clear business day after receipt of the Second Letter of Allegations);

(d) the lack of information and evidence that had been provided by the Respondent to respond to these allegations;

(e) the steps taken by the Applicant to obtain support/advice/representation;

(f) the fact that the Applicant notified the Respondent that the reason she was seeking an adjournment was that she wanted to obtain legal advice and representation, and that she would not be able to respond to questions in the meeting for that reason;

(g) the short period of adjournment the Applicant was seeking, namely six days; and

(h) the fact that there was little to no prejudice to the Respondent in adjourning the meeting - particularly compared to the prejudice that could be (and has been) suffered by the Applicant. 4

[42] The Applicant further submitted that the Respondent, despite the above:

(a) required the Applicant to attend and respond to the allegations at the meeting of 18 September 2019;

(b) relied on the Applicant’s lack of response at the meeting to arrive at the conclusion that the evidence supporting the allegations was uncontradicted by the Applicant, and/or drawing adverse inferences against the Applicant as a result of her not responding to the allegations; and

(c) on that basis, terminated the Applicant’s employment on 20 September 2019.

[43] The Applicant submitted that the Respondent’s refusal to adjourn the meeting meant that the Applicant was not provided with a proper opportunity to consider and respond to the allegations.

Unsatisfactory performance

[44] The Applicant submitted that prior to the dismissal, she was not warned about any unsatisfactory performance, and the Respondent presented a large number of allegations left to accumulate against the Applicant, putting the majority of them to her simultaneously, without forewarning and then using the aggregate of these as the basis for terminating her employment.

Lack of response at 18 September meeting

[45] It was emphasised on behalf of the Applicant, that as the Respondent had contended that as the 26 August 2019 incident, was capable of constituting a criminal offence, answering the questions posed in relation to these allegations at the meeting of 18 September 2019, had real consequences. The Applicant was concerned that the answers could be relied on to prove her guilt of criminal conduct, and therefore the Applicant was entitled to claim privilege against self-incrimination.

[46] The Applicant submitted that as a result of her refusal to respond, by way of exercising privilege, (given she did not have appropriate representation) the Respondent drew substantial adverse inferences against the Applicant for this. The Respondent stated that the Applicant’s conduct was unsatisfactory and that it breached the Respondent’s enterprise agreement. The Applicant submitted the Respondent characterised the Applicant’s conduct as lack of participation and cooperation and unfairly considered it a factor favouring termination of the Applicant’s employment.

Valid reason

[47] The Applicant gave evidence that she has been registered as an RN since 2004; and has been nursing for over 26 years. The Applicant said she has been in continual employment, had not had any complaints of her work or disciplinary action taken in relation to her registration, and has not had any disciplinary history with employers prior to the Respondent. 5The Applicant said, she has extensive experience in nursing and the provision of care to patients with acute and high care needs.6 She stated she had been trained to perform the suctioning procedure by previous employers in acute settings,7 and had frequently undertaken the procedure without issue.

[48] The Applicant said she had provided occasional care to the Resident since 2015 and regular care since August 2016, and had a detailed understanding of the Resident’s health condition and care needs. The Applicant said the Resident had significant health issues and complex care needs, including being bedridden and having a cognitive impairment, which prevented her being able to call out or operate the buzzer if requiring help. This meant she required hourly check ups for safety and comfort. The Resident also had severe dysphagia and could not eat or drink by mouth or swallow her own saliva, placing her at risk of choking and aspiration, and the need for suctioning.

[49] The Applicant said that, the Resident’s room was opposite the nurses station to mitigate risks and so that staff could hear any signs of aspiration and saliva build up, and that when she was treated for incidences of choking and aspiration, it was because she was monitored or staff found her in those states and not because she called out or operated the buzzer.

[50] The Applicant submitted that the Resident’s care plan required regular check-ups on the Resident, to check for excessive saliva build up and stated that the Resident was at high risk of choking and aspiration if not properly responded to. The Resident’s care plan, required the staff to check saliva build up and monitor her for signs of aspiration, and when necessary to report to it to an RN so that this oropharyngeal suctioning could be performed. The care plan was reviewed every three months by another RN and was not reviewed by the Applicant. The care plan also said that the resident was not to participate in any risk-taking behaviour, which referred to ensuring necessary suctioning occurred and not attempting to get out of bed without assistance. 8

[51] The Applicant said The Resident’s Complex Health Care Procedure Chart importantly shows that in August the Procedure was performed 57 times, 16 of which were by the Applicant.⁹ The Applicant was not cross-examined on the application of the procedure, as shown in the chart.

Conduct during the suctioning procedure

[52] The Applicant submitted that as the RN, she was the only witness, to the suctioning procedure, qualified to make a determination, as to whether the Resident required the suctioning procedure to be performed, and whether it was a medical necessity. The Applicant submitted she was also the only witness, who was qualified to perform the Procedure.

[53] The Applicant said that on any occasions, where the Resident may have shown any signs, that could be interpreted as the Resident not consenting, such as pulling out the suction catheter, the Applicant only performed the Procedure when she correctly assessed it, as a medical necessity. The Applicant acknowledged the procedure was intrusive and was not performed unnecessarily.

[54] There is a significant factual dispute between the parties regarding how the suctioning procedure was carried out by Ms Mazi and what the witnesses say they observed. The evidence and reliability of the witnesses is later dealt with. However, it is relevant to note, the Applicant’s evidence of the procedure, the alleged incident and her nursing knowledge was detailed and credible. For reasons I later deal with, ulterior motives for the provision of the Respondent’s witnesses’ versions of the suctioning incident, were evident in their testimony.

Entry to the facility and accessing of documents

[55] The Applicant submitted that after her suspension, she did not know that she was not permitted to enter the facility or access the IT system. She said she also did not realize that there was a prohibition on removing documents, and that it extended to her taking documents, to inform her response to the workplace allegations.

SUMMARY OF THE RESPONDENT’S MATERIAL

[56] In summary terms, the Respondent submitted that it accepted the following facts as uncontroversial:

(a) the Applicant provided occasional care to the resident since 2015 and regular care since August 2016;

(b) the resident suffered from severe dysphagia which placed her at risk of choking and aspiration;

(c) the resident was placed opposite the nurses' station to mitigate the risks, and so that staff could hear any signs of aspiration or saliva build-up;

(d) the resident required two hourly check-ups under her Care Plan and Complex Health Care Procedure Chart, and in the event of saliva build-up, it may have been necessary for an RN to perform oral cavity suctioning or oropharyngeal suctioning to clear her airways; and

(e) the resident's Complex Health Care Procedure Chart showed that in August 2019 the procedure was performed 57 times, including 16 times by the Applicant.

[57] The Respondent submitted that they also generally accepted the Applicant's description of the oral cavity suctioning and oropharyngeal suctioning procedure.

[58] The Respondent submitted however that they took issue with the manner in which the Applicant, attended to the health care needs of the resident, in regard to the incident of suctioning, and that the conduct identified, amounted to elder abuse justifying dismissal.

[59] The Respondent referred to compulsory reporting requirements Aged Care Act 1997 (the Aged Care Act), specifically relating to unreasonable use of force. The Respondent submitted that unreasonable use of force as as defined under the Aged Care Act is unlawful sexual contact, unreasonable use of force, or an assault that constitutes an offence against a law of the Commonwealth or a State or Territory, that is inflicted on a person receiving residential aged care, and ranges from deliberate and violet physical attacks on care recipients to the use of unwarranted physical force. 10

[60] The Respondent submitted that it had legal responsibilities to undertake a ‘mandatory report’ under the Aged Care Act, when the allegations of such were received, the Respondent adhered to these responsibilities.

[61] The Respondent argued that the Applicant breached the Aged Care Act as she did not make a mandatory report when she held down or directed another staff member to hold down the resident’s hands when she suctioned her against her will. The Respondent submitted that the Applicant had also breached her mandatory reporting obligations in relation to her registration as a Registered Nurse in accordance with the Nursing and Midwifery Board of Australia Code of conduct for nurses.

[62] The Respondent further argued that the Applicant’s failure to report using unreasonable use of force placed the Respondent in a position of not adhering to their legislative obligations which could have had detrimental consequences to the Respondent's reputation.

Opportunity to respond

[63] The Respondent submitted that irrespective of whether or not Ms Mazi was entitled to claim privilege against self-incrimination, Ms Mazi was provided with an opportunity to respond at the meeting of 18 September 2019 and declined to take up that opportunity. The Respondent submitted that Ms Mazi’s decision not to respond to the allegations cannot be considered to be a denial of procedural fairness by the Respondent.

[64] The Respondent submitted that although it may have been a better process to have afforded Ms Mazi with additional time or an adjournment noting the implications for her professional career as an RN, the seriousness of her misconduct and the risk to the safety of residents, justified timely action and summary dismissal. The Respondent further submitted that at the meeting of 18 September, the Respondent was confronted with an employee refraining from responding at all. 11

Entry to the facility and accessing of documents

[65] The Respondent submitted that the Applicant admitted she entered the facility while on suspension, accessed the Respondent's IT system, and printed and removed medical records including the resident’s care plan from the facility. The Respondent submitted the Applicant said she was unable to use her personal login to access the Respondent's IT system, and that instead she used the agency login details. 12

[66] The Respondent submitted that this admitted conduct constituted a fundamental and serious breach of the Applicant’s professional obligations as an RN and in particular the Nursing and Midwifery Code of Conduct, and the Applicant’s employee confidentiality obligations, and that this was a valid reason justifying termination. These alleged breaches of the particular provisions of the Nursing and Midwifery Code of Conduct were not clearly put to the Applicant for response.

[67] The Respondent submitted that the Applicant’s contention, that she was not aware that while on suspension, she was not permitted to enter the facility or to access the Respondent's IT system, (and that, that the prohibition on removing documents extended to her taking documents to inform her response to the allegations) should be rejected.

[68] The Respondent argued this on the basis that the Applicant’s professional and confidentiality obligations as an RN continued to apply, irrespective of whether or not she was suspended from duty. Further that the Applicant was aware of her professional, ethical and confidentiality obligations and knowingly acted inconsistently with those obligations where there was no exemption which would allow her, without authorisation, to access and remove confidential medical records as she did.

CONSIDERATION OF THE EVIDENCE

[69] At the Hearing, the Applicant gave evidence on her own behalf, and the Respondent called two witnesses, who provided short statements in relation to the suctioning procedure carried out on the Resident. Ms Julie Ann Clark and Ms Leena Kadel, (the Respondent’s witnesses) both of whom are personal support workers employed by the Respondent.

[70] Ms Julie Ann Clark’s witness statement provided the following:

“To whom it may concern,

Approximately 17 weeks ago (just before the suctioning machine broke down between the weeks 4/8/19-18/8/19) (redacted) needed to be suctioned, I was sitting at the nurses station and Grace attended to (redacted) and was suctioning her, Grace was trying to talk (redacted) into letting her suction her but I could hear (redacted) telling her ‘no, get out you bitch, go away’.

Grace called out to me and said that she needed help, when I attended, Grace had the suction tube in (redacted) mouth, with one hand and was holding (redacted) hands down with the other hand. Grace asked me to hold (redacted) hand down as (redacted) was trying to push the suction tube away that grace had in her mouth. I told Grace ‘no’ that I would not do that as (redacted) had a right to refuse, it was not the first time that Grace had asked me to hold (redacted) hands and I had told her no every time she had asked.

Every time Grace had gone in to try and suction (redacted), I heard (redacted) refuse and tell Grace to get out of her room, and when Grace did manage to suction her, (redacted) always had her mouth clammed shut and Grace was trying to push the tubing into (redacted) mouth and (redacted) was always trying to push her hands away.

I understand that I should of reported this sooner and don’t really have any excuses but I was worried about the repercussions I would have, having to work with Grace four nights a week.

Regards,

Julie Ann Clark”

[71] Ms Leena Kadel also submitted a brief witness statement in the proceedings. Ms Kadel’s statement provided in part, as follows:

“Grace asked me to hold (redacted) hand tight while she is doing suctioning and I told her that it might get bruised if I hold her hands and she said that I had gloves on so no need to worry. It is quite difficult to give you the exact date of the incident as it had happened long time ago. The recent date she asked me to hold her hand was on 31st August while she was suctioning (redacted).

Conduct during the suctioning procedure

[72] As previously noted, the Applicant submitted that as the RN, she was the only witness in the proceedings qualified to make a determination as to whether the Resident required the suctioning procedure to be performed, and whether it was a medical necessity. The Applicant submitted she was also the only witness who was qualified to perform the procedure. The Patient Charts relevant to the suctioning process formed part of the evidence.

[73] The Applicant said that on any occasion where the Resident may have shown any signs that could be interpreted as the Resident not consenting, (such as pulling out the suction catheter) she did not proceed. The Applicant only performed the procedure, when she considered that she correctly assessed it as a medical necessity, as set out in the charts.

[74] In her witness statement, Ms Mazi gave evidence, in relation to when she would perform the suctioning procedure. Ms Mazi’s evidence included the following:

“48. Where indicated, oral cavity suctioning and oral swabbing are initially offered to reduce the buildup of secretions. To obtain consent, I would normally go in and speak with (redacted) and ensure that she understands that suctioning needed to be performed. Sometimes (redacted) will agree to treatment and sometimes she will not. When she refuses and is not in immediate danger of a compromised airway, I accept it and try again later.

48. When oropharyngeal suctioning is indicated (i.e. when choking or aspiration is imminent or there is risk of aspiration), it becomes a matter of medical necessity. If the Procedure was required as a medical necessity, I proceeded to perform the Procedure and say to her words to the effect of 'sorry (redacted), we really need to do this' and I would ask for one of the AINs to assist. The AIN's role was to hold (redacted) hands and distract her from pulling out a suction catheter. There were no other restraints required, and there was never any need to use excessive force. I also note that during those occasions it is difficult for (redacted) to verbalize when her airway is compromised, and the Procedure is also inherently uncomfortable, and as such (redacted) may be in suffering from discomfort her concerns might then be translated into her attempts to yank out the suction catheter mid-procedure.

49. On the occasions that I used the assistance of the AINs, I performed the suctioning procedure because I understood that (redacted) consent to this was provided in accordance with her Care Plan, and I considered it to be a medical necessity and believed that (redacted) was at risk of choking or aspiration. I never performed the Procedure on (redacted) in circumstances where consent was ambiguous, unless it was a medical necessity.

50. A person with severe dysphagia can choke in seconds. Whilst (redacted) is regularly checked, she is not able to call out for assistance (due to dysphagia) and cannot operate the resident call bell. If I had of taken the time to go to the telephone and request directions from her family, she could have suffered from aspiration and required hospitalization or died. The regular doctors are never on call at night and it is therefore not possible to get timely advice from a doctor. The alternative would be to call emergency services, but because of the nature of the emergency they would not be able to prevent the issue of choking or aspiration in time because it can occur in a matter of seconds.” 13

[75] At the hearing, Ms Mazi gave the following evidence under cross examination by Mr Rogers, the Respondent’s representative:

“MR ROGERS:  So in relation to this statement if you thought suctioning was necessary in terms of addressing the saliva build up you would do that irrespective of whether the resident was consenting to the procedure?---Yes, if I was - if there was an issue of imminent choking or aspiration I would necessarily conduct the procedure, and let her know that, "Sorry, we had to do the suctioning".” 14

So even though the resident was quite clearly indicating they didn't want it to happen you would do it?---In that scenario she wouldn't be able to articulate her concerns because of the status of how she would be in, so basically probably she would try and grab the suctioning and that's because the procedure itself is quite uncomfortable, so if you are saying her grabbing the suction is an indication that she doesn't want the procedure, but I wouldn't say she would be in a state to articulate she wanted the procedure if she's imminently at the risk of choking.

If - - -?---Someone in a status of choking would not be able to articulate whether they wanted something done or not.

If someone is grabbing at the hose and trying to pull it away, would that be an indication they're not consenting to the procedure?---Yes, it would be in a way that they are not wanting that to happen.

But you would still do it?---Yes, under the circumstance that it was a medical necessity at that time to do it.” 15

[76] Ms Mazi’s further evidence was that the care plan referred to oral cavity suctioning that was to be conducted with consent, and oropharyngeal suctioning. Ms Mazi’s evidence was that oropharyngeal suction was to be conducted by the registered nurse in the event that there were indications for that to prevent choking, asphyxiation, and death, and that this was a medically necessary procedure. Ms Mazi said that in the event of medical necessary procedures like cardiopulmonary resuscitation (CPR), a document must be in place where someone was objecting to a medically necessary procedure, such as being resuscitated when someone was sick and was consenting that they did not want that to be performed and doing so would be a medical necessity.  Ms Mazi said that the resident did not have that document in place that said that intervention was optional, in the event of a medical necessity. 16

[77] In relation to the holding of the resident’s hands, Ms Mazi gave the following evidence:

“MR ROGERS: In circumstances where you're then having to restrain their hands whilst the procedure happens doesn't that indicate they're not consenting to the procedure?---I wouldn't call it restraining but it was a sort of a measure to make sure (Name redacted) was not - (Name redacted) hands were kept away from the suction catheter in order to perform the procedure, so hands were never restrained as such but just a gentle holding of the hands and talking to the resident reassuringly and comfortingly while the necessary procedure was being performed.

But I'd put it to you that it wasn't a case of comforting them, it was a case where the resident was clearly distressed and agitated, and you were, either yourself restraining the resident in order to do the suctioning procedure, or asked one of the personal support workers to assist in restraining them in relation to it?---Well, I doubt any professional worker or person who works with other people would be necessarily concerned to restrain somebody forcibly because they also have a responsibility for themselves to act in a proper way, so I wouldn't say that they were restraining as such, but it was just a matter of just holding her hands gently, no excessive force is required in doing that.” 17

[78] During cross examination, Ms Mazi was asked what she would say if personal support workers say that their observations in how she restrained the resident caused them concern. Ms Mazi said she would be very concerned, if whatever she was instructing them to do, caused them concern, but they did not discuss their concerns with her and she was not aware that they were concerned. Ms Mazi said that if the personal support workers had brought their concerns to her, then they would have had a chance to address each other. Ms Mazi said that they didn't articulate that they were concerned and they continued to assist her with the procedure, so she had no idea that there were concerns of that nature. 18

[79] Ms Mazi was asked a number of questions, regarding how she would assess whether performing a suction was a medical necessity. Ms Mazi gave evidence as follows:

“MR ROGERS:  So Ms Mazi, on the issue of medical necessity, how would you assess that that was necessary to occur to suction (name redacted)?---So you are saying on the issue when there was a medical necessity, how I determined that it was a medical necessity?

Correct?---Okay.  On the occasion after my assessment, so usually according to the required - the one that's attached there, the month care plan we did regular checks on her and as well as described before she's quite near to the nurses station so you can hear if her breathing is becoming different, different (indistinct) and then - - -

THE COMMISSIONER:  If you can speak up a little bit, Ms Mazi?---Sorry.  So I would determine after an assessment, my assessment whether there was any indications of a compromised airway that that would be like if she was gurgling, she was drawling and her saturation numbers would be lower than normal, and she was having laboured breathing, difficulties breathing and she had a lot of saliva build up which she would have been unable to clear even after trying for a little while.

MR ROGERS:  To do and to treat it as a medical necessity, would you conduct the procedure even if the resident was resisting to it?---Look, a medical necessity's like a lifesaving procedure.  It's either you are there conducting a necessary medical procedure.  So in the instance that she required that, I would - I would explain to her that look, I am really sorry we have to do this, because there's going to - you're going to choke or aspirate or something is going to happen.  So in that - in those circumstances.

THE COMMISSIONER:  Is that explanation before or after?---Sorry?

So you're saying that you've made an assessment and you think that (name redacted) was going to choke or aspirate and you are explaining to her about the procedure.  Are you doing that before you suction or after?---Before.  Before I would, because you really have to do it very quickly because choking takes just a matter of seconds.

That's the reason I ask?---Yes, so I would just quickly explain look, (name redacted), we really have to do this now and conduct the procedure.” 19

[80] Ms Mazi was also questioned about whether she would notify the contact person for the resident, or escalate or report instances of suctioning, that she considered were a medical necessity:

“MR ROGERS: Right.  If you thought it was a medical necessity were you required to notify the relevant contact person which I understand for (name redacted) was her daughter or were you required to notify the GP?  Were you meant to record it in the company's progress notes?---No, it was not required to be notified because this is the intervention, like the directions that have already been put in place by the doctor, by the resident, by her next of kin, it's in her care plan, so this is like a doctor's order or saying if this happens do this.  So only in the instance when you do that intervention and it doesn't work or something has happened actually like she's aspirated, she's had to go to hospital, then you would necessarily then need to document that.  So actually you are carrying out an order that's already been there so you don't necessarily need to go in and document she was possibly going to have a medical - because you have already done the order that's put in place for that intervention.” 20

[81] Ms Mazi was asked about the witness statements of Ms Clark, and in particular whether she asked Ms Clark to hold the resident’s hands tight. Ms Mazi gave the following evidence:

“MR ROGERS: So do you say Ms Clark has held (name redacted) hands down when you've asked her to do that?---I am not saying Ms Clark has used unreasonable force.  I am saying on the occasion that I have asked Ms Clark to assist me she's always complied with that request.

What does that assistance entail?---The assistance entails helping me with (name redacted) to distract her from pulling out a suction catheter when necessary suctioning is required.

But never to hold down her hand?---Yes, well that's part of it. She just holds them gently while she's talking to her and distracting her so that she does not pull out the suction catheter, otherwise no suction would be able to be performed.” 21

[82] Ms Mazi was also asked whether she recalled the resident ever asking her to leave the resident’s room. Ms Mazi’s evidence was that she didn’t recall this but did recall there were occasions when the resident would refuse suctioning and when it was not necessary Ms Mazi would always find other ways to reduce the amount of secretions that were going on. Ms Mazi’s evidence was that on those occasions the resident did not want suctioning done, the fact that the resident could express that means it wasn't necessary to perform the suctioning. 22

[83] Ms Mazi was asked questions in relation to Ms Kadel’s witness statement and regarding the allegation Ms Mazi directed Ms Kadel to use unreasonable force and hold down (redacted) hands. Ms Mazi’s evidence was that she did not ask Ms Kadel to use unreasonable force:

“MR ROGERS:  Yes.  So certainly what Ms Kadel says that you had asked her to hold (name redacted)'s hand tight whilst you were performing suctioning, and that Leena had said to you that (name redacted) might get bruised if she held her hands, and you said that Leena had gloves on, so no need to worry?---What was the question again?

Did you ever say that to Leena?  Can you recall, first of all, that you asked Leena to hold (name redacted)'s hand tight whilst you were performing suctioning - sorry, start again.  Can you ever recall asking Leena to hold (name redacted)'s hands tight whilst you were performing suctioning?---No, I don't recall her asking.  The only occasion that I asked Leena to assist with the procedure is, I explained before, it is just to hold (name redacted)'s hands very gently and talk to her and distract her and prevent her pulling out the suction catheter during the procedure, not to use any tight or unreasonable force.  So I think probably we are dealing with the English interpretation of the way she interpreted the force used to hold the hands.

But what Leena says is that you asked her to hold (name redacted)'s hands tight?---Yes, like, I said I never asked anyone to use any force on (name redacted).

THE COMMISSIONER:  Did you ask her to hold those hands tight though, hold (name redacted)'s hands tight?  I mean, are you saying it's a matter of whether you ask someone to hold them with force?  But as I understand what Mr Rogers is putting to you is that this is the statutory declaration that he has received, and did you ask Ms Kadel to hold (name redacted)'s hands; either hold her hands or hold them tight?---I did not ask Ms Kadel to hold (name redacted)'s hands tight.  On the occasion I have asked her to assist; I've just asked her to hold (name redacted)'s hands gently in a way to prevent her pulling out the tube and it didn't require any tightness.  So I have not asked her to hold (name redacted)'s hands tight.” 23

[84] At the hearing, Ms Clark, a personal support worker who worked with Ms Mazi, said that she had been asked on one other occasion to hold the resident’s hands and that this was not long after Ms Clark started working for the Respondent. Ms Clark said she did not assist on that occasion because the resident had a right to refuse.

[85] When asked whether she was asked to hold the resident down or to hold the resident’s hands, Ms Clark said that she was asked to hold the resident’s hands so that the suctioning could be done, because the resident wouldn't open her mouth.

[86] Ms Clark was asked about how she felt after this incident and said:

“MR ROGERS: That incident you saw, how did that leave you?---I felt horrible for (name redacted) because everybody has a right to refuse anything.  Anything.  We all do, so I felt Grace should have just walked away and maybe went back and tried again or, if not, if (name redacted) still refused, then tried other options.

Have you seen other registered nurses act differently in a similar situation?---Yes, yes.

How would that happen?---Well, when (name redacted) has said no, then they have accepted it and they've either gone and sat her bed up higher or given her her medication; injection of Buscopan.  (Name redacted) may sometimes have let them suction a little bit, but never beyond her teeth.  Maybe come away from around her mouth with the swab just inside the gums, but never in behind the teeth.” 24

[87] Ms Clark said at the hearing that she first raised her concerns in September, some time after the alleged incidents. 25 Ms Clark’s evidence was as follows:

“THE COMMISSIONER:  Can I ask you what prompted you at that time to notify the employer or provide this statement given the lapse of time?---I just - I had had enough.  I had had enough of basically feeling like I was useless, criticised about my work and the guilt of not reporting it earlier, so I just - I reported it, yes.  It was wrong, yes.  The consequences of having to work with Grace and her knowing that it would have been me that reported stuff, so - - -

MR ROGERS:  So why hadn't you reported it earlier?---Why?  No excuse, I don't know.  I just - having to work with Grace once she found out what had been reported and who had reported it; me having to work with her every week.” 26

[88] During cross examination, Ms Clark said she was aware the resident was at high risk of choking and aspiration due to a weakness in her mouth and throat and had impaired speaking, swallowing and eating. Ms Clark said she was aware of the resident’s care plan.

[89] Ms Clark said that she had spoken to Ms Glenice Kluver prior to raising her concerns in writing. Ms Clark said that she felt it was necessary to talk to someone about Ms Mazi’s alleged conduct because it was wrong and Ms Clark felt it was wrong. 27

[90] During reexamination, Ms Clark gave the following evidence:

“MR ROGERS: You were asked whether you had raised any concerns with Ms Mazi?---Yes.

You said you hadn't?---No.

Why didn't you want to speak to Ms Mazi?---Because, to be honest with you, I found Grace really condescending, unapproachable and I just felt that if I had have said something I would have been picked on, meaning - I don't know, criticised about things.  That's just how I felt.

Did you feel comfortable working with Ms Mazi?---Sometimes, yes.  Yes, sometimes, yes.

And sometimes - other times - - -?---It depends on, I guess, what type of mood she was in.  Yes, just - yes.” 28

[91] During re-examination I asked Ms Clark further about the issues raised by her and the below exchange followed:

“THE COMMISSIONER:  When I previously asked you, Ms Clark, why you hadn't raised the issue earlier, you indicated because you had felt bullied - you had been made to feel bullied and useless?---Mm-hm.

Are you suggesting that was by Ms Mazi?---Yes.

It had taken a long time for you to raise this issue and is your evidence to me that it was an accumulation of other issues - - -?---Yes.

- - - that then made you raise - - -?---I had had enough, yes.  The last picking that she had done at me, I had had enough, unfortunately.  I know that sounds horrible and wrong towards the resident about reporting, but I had had enough, yes.

So there was some retribution - - -?---Yes.

- - - towards Ms Mazi - - -?---I suppose it could sound like I was being spiteful and nasty to get back at her, but that's not the case.  I had been thinking a long time - I don't know how long - to go to Glenice and report (name redacted) and stuff, but, once again, the consequences, the repercussions I would have of working with Grace when she had found out that and she would have known - she wouldn't have had to ask the question who reported it - that I had to work with her those three nights a week.  I would have felt uncomfortable and then I would have had to - I would have felt that I would have had to have left my job and I didn't want to leave my job.  Does that makes sense?” 29

[92] Ms Leena Kadel, another personal support worker, also gave evidence in the matter.

[93] Ms Kadel’s evidence was in relation to two incidents. In the first incident, Ms Mazi allegedly asked her to hold the resident’s hands down and when Ms Kadel objected on the basis the resident might get bruised, Ms Mazi said not to worry as Ms Kadel had gloves on. The second incident was on 31 August 2019 and Ms Kadel said that Ms Mazi asked Ms Kadel to hold the resident’s hand while Ms Mazi performed the suctioning.

[94] In relation to the first event, Ms Kadel admitted that it happened a long time ago and she did not remember when. 30 She also admitted she did not have a detailed recollection of the incident.31

[95] It was put to Ms Kadel that Ms Mazi did not ask her to hold the resident’s hands tight. Ms Kadel said:

“MS KINCHINA: In terms of Ms Mazi asking you to hold her hands, I put it to you that she didn't ask you to hold them tight, but she just asked you to hold them?---No, she asked me to hold them tight, because I'm holding that and she just pull that out, and she ask me just to hold that tight.  That's the second time, so - - -” 32

[96] Ms Kadel was asked about the gloves she wore and said that they were latex gloves and agreed that they didn’t protect anyone from getting bruised. It was put to Ms Kadel that Ms Mazi’s alleged response didn’t really make sense. Ms Kadel said “I don't have proof for those, but she said that.” 33

[97] Ms Kadel admitted that it was not part of her role to perform any procedure if there was a medical necessity.

[98] It was put to Ms Kadel that the resident wore arm protectors. Ms Kadel denied this. 34

[99] In relation to the second incident, Ms Kadel gave the following evidence:

“MR ROGERS: Now, in that statutory declaration you say:

Grace asked me to hold (name redacted)'s hand tight.

What can you recall about that incident?---(Name redacted) was trying to pull out the suctioning pipe and then she wants me - the registered nurse wants me to hold her hands, so I hold the hands and she was still pulling the pipe and she wants me to hold that tight - like hands tight, so I hold it.

Right.  Did Ms Mazi expressly say to you, "Hold (name redacted)'s hand tight"?---Yes.

This was whilst Ms Mazi was suctioning (name redacted)?---Yes.” 35

[100] Ms Kadel said she recalled the date this took place and the events because it was her birthday.

[101] Ms Kadel agreed that it was not her role to carry out the suctioning procedure and that she was not qualified or trained to do so.

Entry to the facility and accessing of documents

[102] Ms Mazi admitted at the hearing to entering the facility, accessing documents – some of which were confidential medical records – and then printing and removing a number of those documents from the facility. Ms Mazi’s evidence was that she didn’t keep count of how many documents she printed and removed.

[103] Ms Mazi was asked about why she thought she could print and take the documents away. Ms Mazi said:

“MR ROGERS: Why did you think that you could print that and take that away?---All I could say is in 69 that I went in there to inform the first letter of allegations, because I had not been provided with any information or evidence.  So this information would be able to help me make my defence of the allegations that were put to me.  So surely they were actually going to go back to the respondent.  So it was - they were not printed for any personal information for myself, but just to inform my response to the resident.” 36

[104] It was put to Ms Mazi that by printing the medical records and taking them off site, she contravened the “Information guide and confidentiality acknowledgement” document she had signed on 4 September 2018. The document was provided as an exhibit and put to Ms Mazi. The document reads:

“I, Grace D Mazi, the undersigned, acknowledge that I have read and understand the Arcare Employee Information Guide and agree to follow the information and guidelines in my employment.

I agree to abide by the Arcare Privacy Policy and understand that all information pertaining to residents and staff in particular their medical or social information is protected by the Privacy Policy.

I undertake not to discuss or use this information in any way other than for the purpose of fulfilling clinical and personal care needs.

I agree not to share confidential Information regarding my colleagues.

I agree to not remove from the facility, nor to provide any person Arcare documentation or copies thereof without the written permission from the CEO, State Operations Manager or Quality Manager.

I am aware that a breach of this confidentiality policy may result in instant dismissal and/or prosecution under the law.”

[105] When it was put to Ms Mazi that printing the medical records and taking them off site was in contravention of the document, Ms Mazi explained that it was not explained to her that the “Information guide and confidentiality acknowledgement” related to gathering information to inform her response. The exchange follows:

“MR ROGERS: So what you did by printing those medical records and taking them off site is in complete contravention of that document, isn't it?---This document was made in relation to the general prohibition or in my employment, so when I got suspended, that was not articulated to me that it extended to the document that related to getting - to me informing my response.  Additionally, I was not provided with a suspension policy that would have articulated that - that would have sort of articulated that even in relation to informing my workplace allegations I was still prohibited from doing that.  But once I became aware, when Mr Calabro wrote to me, I did ask for permission to go back and get more information, but I was denied that.” 37

[106] Ms Mazi’s evidence was that she was not told that she could not go on site or view and remove documents from the facility. Ms Mazi gave evidence in her statement and at the hearing she was not told what the suspension meant or told that she could not go into the facility and inform her response with the documents:

“MR ROGERS: But to go in, print and take away medical records is entirely inappropriate.  Why wouldn't that be a breach of 3.5(d) of the code of conduct?  "Nurses must access records only when professionally involved in the care of the person and authorised to do so?"---Yes.  So generally that is what I understand, but in relation to informing your response, which your employer has put to you, I didn't understand that that extended to the issue of informing my response.  I thought that it was quite - under the circumstances I thought it was appropriate to be able to inform my allegations intelligently and show that what is being said is not what is the correct fix(?).  So I needed that information to be able to show that.

You could do what you wanted.  I put it to you that you've blatantly breached the code of conduct?---I do disagree, because in having that, it was not articulated to me as well when I was told of the suspension that I could not go into the facility and inform my response with the documents.” 38

CONSIDERATION

Section 387 of the Act

[107] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:

s.387(a) - whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[108] In assessing whether there was a valid reason for the Applicant’s dismissal, the reason must be ‘sound, defensible or well founded.’ 39 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.40 Furthermore, ‘[T]he reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.’41

[109] The onus is on the Respondent, in the current matter, to discharge the conduct that there was a valid reason for dismissal, on the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’314 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ …” 42

[110] On the balance of probabilities, the allegations of elder abuse were not made out. This allegation was the primary and most serious allegation. The other allegations related to nursing matters that would regularly be dealt with in daily notifications, ward handover matters and not raised in an aggregate form sometime later. Whilst not in any way diminishing the importance care of patient duties, these allegations would not form the basis for dismissal, where the allegations had not previously been raised in a timely manner, and had formed the basis of discussions. Further allegations of insubordinate conduct towards Ms Ehlers regarding these issues form the category of alleged rudeness and not immediately responding to her emails whilst on night duty, do not support a valid reason for the termination.

[111] The employer reported the allegation of elder abuse, on a premature basis. No proper investigation was conducted. The onus is on the Respondent, in establishing the basis for the criminal referral of ‘elder abuse’. The Respondent should be able to prove, to meet those tests, the basis of proving the conduct ‘beyond a reasonable doubt’. The witness evidence relied on by the Respondent in this matter in regard to the two employees that were working on the night shift with the Applicant was not cogent or credible. Their evidence demonstrated that they did not have a sound understanding of the procedure. One witness had an ulterior motive for complaining about the Applicant, rather than a genuine consideration that the Applicant had engaged in elder abuse. The other witness was not confident in her evidence about the alleged incident or her complaint.

[112] Every accredited provider of aged care services is compelled under the Aged Care Act 1997 (Cth) (the Aged Care Act) to have an internal complaints process for aggrieved persons through which complaints may be initially dealt with. The requirements for an internal complaints process are set out in the Aged Care Act at s.56.4.

[113] Under the Aged Care Act, approved residential aged care providers are obliged to report alleged or suspected assaults in aged care facilities funded by the Commonwealth to the police and to the Commonwealth Department of Health and Ageing. There is no regulation of assaults which occur within aged care facilities which do not receive Federal Government funding.

[114] Section 63.1AA of the Aged Care Act defines a reportable assault for the purposes of mandatory reporting. It provides that a reportable assault means unlawful sexual contact, unreasonable use of force, or assault and constituting an offence against a law of the Commonwealth or a State or Territory, that is inflicted on a person when the person is receiving residential care in respect of which the provider is approved; and either subsidy is payable for provision of the care to the person; or the person is approved as the recipient of that type of residential care.

[115] Under s.63.1AA, the approved provider is responsible for taking reasonable measures to require each of its staff members who provides a service connected with the approved provider's residential care service and who suspects on reasonable grounds that a reportable assault has occurred to report the suspicion as soon as reasonably practicable to one or more of the following chosen by the member:

•  approved provider;

•  •one of the approved provider's key personnel;

•  another person authorised by the approved provider to receive reports of suspected reportable assaults;

•  a police officer with responsibility relating to an area including the place where the assault is suspected to have occurred; and/or

•  the Quality and Safety Commissioner.

[116] There is currently no statutory requirement for the mandatory reporting of suspected cases of elder abuse in Queensland, with the exception of the reporting requirements in the Aged Care Act. Health professionals and community care organisations are not required to report suspicions of elder abuse.

[117] In her evidence, the Applicant presented a sound understanding of caring for patients in an aged care facility, particularly when she was the primary registered nursing staff member responsible for their care, in a multiple bed ward. It is fair to characterise her demeanour as being business-like and having a particular standard that she required of the staff for assisting with the nursing of the residents.

[118] In relation to the incidents of alleged and required suctioning, where it was suggested that force was used; the evidence of the Respondent’s witnesses is not consistent or reliable. The Applicant’ evidence indicated her clear understanding of her duty to the resident, based on the physiological symptoms as presented and the degrees of patient responses, in relation to these.

[119] The Applicant was well aware of her duty of care to the resident and balancing this with the required nursing responses. She was able to provide a detailed assessment of the patient and a detailed knowledge of the required procedures and why required assistance was needed, at that time and that the holding of the patient’s hands was necessary to assist with the patient and the procedure. The Applicant was also able to state in clear terms, why the suctioning procedure was required at that time and the implications if the suctioning was not undertaken. None of the conduct that the Applicant engaged in, taking into account her evidence and that of the others present, demonstrated elder abuse. Furthermore, none of the material that was provided by the employer prior to the termination demonstrated the considerations of the conduct and why the conclusion was so quickly made to categorize it as elder abuse and to hastily terminate the Applicant’s employment. This was particularly so where the employer was quick to activate the reporting of the alleged elder abuse, without any real prior clinical assessment of the matter or an appropriate investigation or testing of the evidence. Given the significant limitations such a finding would have on the Applicant’s ability to undertake future nursing work, and the making of criminal allegations, a thorough and fair process was required.

[120] Further in relation to the other allegations, whereby it was suggested that the Applicant was insubordinate to the manager, in circumstances where the manager repeatedly contacted her, whilst on duty on the night shift, to check her emails, the response to these matters does not adequately form a basis for the dismissal. There were reasonable alternatives to these demands to the Applicant, whilst she was on duty. The repeated contact of the primary registered nurse, responsible for the care of the residents on the night shift, cannot be considered appropriate or contribute to a valid reason for the dismissal. Whilst the Respondent stated that the Applicant’s involvement in dispensing medications at particular times during the shift did not match with those times that the Respondent called for her, the provision of medications were not the only necessary duties undertaken on shift by the Applicant.

[121] However, the employer did make a serious allegation against the Applicant, in relation to the Applicant’s accessing and removal of patient information and records, after being suspended. The Respondent considered the Applicant has engaged in a significant contravention of her general obligations to patients in relation to this matter. It is inconsistent with her evidence of her experience and knowledge as a registered nurse, that she was not aware of the strict required custody and privacy requirements of patient records. However, this must be balanced with the pressure the employer placed on the Applicant, in refusing an adjournment of the meeting, which required specific responses to defend herself, in relation to the allegations related to patient care. The allegations, had the potential to end her career as a registered nurse and to expose her to criminal investigation, by referring the elder abuse allegations without an appropriate investigation and without receiving an appropriate response from the Applicant.

[122] The allegations of the conduct of the Applicant in returning to the workplace and accessing patient records has been carefully considered in the context. It was submitted that the conduct was undertaken in the mitigating circumstances, in that the Applicant stated, she was not clear on the specific details of the allegations involving patients and therefore the need to check patent records to verify such. The Applicant said she was unclear on the parameters of the suspension from the workplace and that she was not advised, that she was not able to return to the workplace, while suspended. Further that she was directed to respond to a series of serious allegations, that directly affected her ongoing registration, in her long-term vocation. The real concern regarding criminal charges being laid, in the circumstances, provided significant pressure to be able to have the relevant documentation to address and defend the allegations. The decision to access the records was taken in circumstances, where it can be considered that the Applicant was under real duress given, she did not have any representation at that time and the timeframes in which she was being required to respond were short. She was also without representation.

[123] The Applicant’s decision to consult patient records, as stated, was made in the absence of a direction to her, as to the required conduct during the period of suspension. The employer considered that the Applicant should have known, that whilst suspended she should not have returned to the workplace, and that this conduct was improper and may contribute to dismissal. In addition the employer considered, whilst it was not set out to the Applicant, that access to the patient records and copying of such was clearly a breach of the code of conduct for which the Applicant, should have been aware or should have first made prior inquiries of her employer, prior to accessing the records.

[124] In the circumstances of the employer’s referral of the ‘elder abuse’ matter, there was a lack of clear direction whilst suspended, to the Applicant, as to how she was to access the relevant information to respond to the allegations. The circumstances also included that the Applicant considered the employer, had acted improperly and was continuing to endeavour to contact her to refuse her application for annual leave in circumstances where she believed that this was unreasonable and she was being harassed whilst on duty. In the context of these matters, it was reasonable for the Applicant to be agitated and unsettled, where she was referred for engaging in criminal conduct. On balancing these matters the access and copying of patient records remains a serious breach of conduct for a registered nurse. However, in circumstances where the allegations of elder abuse required the Applicant to inform her responses to defend the allegations. The allegations have not been made out, this matter of itself does not constitute a valid reason for dismissal. Notwithstanding this, the breach of conduct in accessing and copying patient records, forms a serious matter.

Conduct during the suctioning procedure

[125] The suctioning procedure as described, presents as intrusive to the patient. Ms Mazi said during her evidence, that the procedure itself, is quite uncomfortable. 43

[126] The evidence did not demonstrate that the procedure was done unnecessarily, incorrectly, or wrongfully. Ms Mazi’s evidence was that the suctioning procedure with the resident, was imperative on the presentation of the resident’s physiological symptoms. The evidence of Ms Mazi, was at all times respectful of the resident’s condition and care.

[127] Ms Clark referred in her evidence to the fact that one of the duties, she was required to perform, was changing the resident’s pad, and that the resident would on occasion decline to have the pad changed, by forcefully holding her knees together. Where the resident did not consent, they would not carry out the pad change at that time. Further, Ms Clark referred to other RNs, not performing suctioning where the resident said they did not want the suctioning performed, and that an oral swab might be taken or an injection of Buscopan given or a suctioning of only the mouth area.

[128] I do not consider on the basis of the evidence that these alternative patient responses, in comparison with the required suctioning, were adequate to deal with the circumstances of the resident as presented to the Applicant and upon which she based her decision to undertake the suctioning procedure. In this regard I accept the Applicant’s evidence that in her professional opinion the suctioning was necessary. I also accept that it was not inconsistent with the resident’s care plan which did not indicate that the suctioning should not be carried out, if it was necessary to prevent choking. In addition, whilst it is recognised that changing a sanitary pad was a necessary hygiene duty, it can be deferred for a short time and it cannot be considered to the same physical necessity level, as the requirement for the suctioning, in the circumstances of the patient, as confirmed. I prefer Ms Mazi’s evidence, that suctioning was only performed where there was a medical necessity and the resident was at serious risk of choking, asphyxiation, and possibly death, if the procedure was not performed. Ms Mazi’s uncontested evidence was that choking could begin in a matter of seconds. The patient’s chart demonstrated that suctioning had been performed and required in the past.

[129] Ms Mazi is an experienced nurse and the documented evidence demonstrated that is was necessary to perform the procedure regularly. Ms Mazi was the only RN on night shifts and the only one qualified to determine whether the suctioning was necessary. In making the assessment, Ms Mazi was required to act quickly and without delay.

[130] Further, the Applicant’s uncontested evidence was that the resident’s care plan allowed for, and required oropharyngeal suctioning and stated to avoid taking unnecessary risks, with the patient. As noted, there was no document in place confirming the resident did not want any medically necessary procedures to be carried out.

[131] Ms Mazi was required to carry out the oropharyngeal suctioning when medically necessary. To not do so would carry grave circumstances. Likewise, waiting to obtain positive, unambiguous consent from the resident or the resident’s next of kin would have on the evidence, resulted in a dangerous and life-threatening delay. The other staff called to assist did not have the nursing training to assess the situation. Further, it is recognised for those not qualified as a Registered Nurse, they did not share her responsibility for the care.

[132] The evidence of Ms Clark and Ms Kadel demonstrates that the basis for their complaints was not genuinely related to the actions with the resident. Both Ms Clark and Ms Kadel referred to their frustration with Ms Mazi’s directions for duties to them. Their evidence at the Hearing referred to feeling bullied by Ms Mazi, given her work requirements. Ms Clark admitted that the issue was raised due to an accumulation of other issues. Ms Clark and Ms Kadel, both conceded they had not raised their concerns with Ms Mazi at any time.

[133] It is considered that raising the allegations regarding Ms Mazi’s conduct after some time had lapsed was questionable. Raising the concerns directly with the Respondent some 13 weeks or longer after the alleged incidents occurred deprived Ms Mazi of any opportunity to address the incidents at the time and resulted in a considerable prejudice towards Ms Mazi, given the lack of proximity to the actual events. In addition, their alleged issues with Ms Mazi were in reality unrelated, to the matter currently under consideration. Ms Mazi required these employees to undertake their duties diligently. She was direct in her dealings with the two employees, in line with the required responsibility for overall patient care.

[134] In terms of the evidence as to whether Ms Mazi asked the support workers to hold the resident’s hands tightly, I prefer Ms Mazi’s evidence, that she asked the personal support workers to hold the resident’s hands (on the occasion) and did not say to do it tightly. No particular evidence was led regarding any bruising or harm suffered by the resident, as a result of her hands being held or held tightly. It was not challenged that the procedure was at all times effectively undertaken.

[135] Even if Ms Mazi did instruct the personal support workers to hold Ms Mazi’s hands tightly or firmly, in the context of her performing a medically required procedure, in the circumstances as described with this patient. I consider that such an instruction would not constitute elder abuse or excessive force. The procedure is uncomfortable and to be effective, involves precisely inserting a tube into the resident’s mouth and throat. Allowing the resident to pull at the tube, would hamper administering the procedure which, was time sensitive and necessary and if not done safely, could result in injury to the resident.

[136] In relation to Ms Kadel’s evidence regarding the first suctioning incident she was involved in, I consider that Ms Mazi did mention gloves but was likely referring to the resident’s arm protectors. Ms Kadel denied that the resident wore arm protectors. Ms Mazi’s evidence was that the resident did wear arm protectors and that these were intended to prevent tears in her skin and bruising. I consider Ms Mazi’s evidence on this point reliable and detailed. There was no persuasive evidence that Ms Mazi would undertake the procedure, if not required or engage in force.

[137] Ms Kadel gave evidence that she asked the Applicant about the Resident sustaining bruising from her hands being held, and the Applicant told her not to worry as she had gloves on. It was submitted that this conversation was an instance of miscommunication. The Applicant did not recall this exchange. Objectively it does not make sense that latex gloves would provide any level of protection from bruising, and both of them accepted that it did not make sense.

[138] Ms Kadel gave evidence about a particular incident on 31 August 2019. Her recollection of the specific incident was explained by the fact that it was her birthday. Relevantly, Ms Kadel gave evidence that the Applicant called her to assist, the Resident was aspirating, and that the Resident’s condition was generally dealt with by an RN because she ‘aspirated very quick’. This evidence was consistent with the general evidence of the Applicant outlined above.

[139] There was no suggestion that the Procedure on that occasion was not a medical necessity; nor, as mentioned above, was the Applicant’s evidence challenged that she would only perform the Procedure when it was necessary. Rather, the Resident’s symptoms were sufficiently acute for Ms Kadel to be able to identify that the Resident was aspirating because she could hear the Resident “gurgle, like how she react with the saliva”.

[140] Ms Kadel gave evidence that the Applicant asked her to hold the Resident’s hands ‘tight’. The Applicant denied that she used the word ‘tight’. She gave evidence that she generally, and in case of Ms Kadel, asked PSWs to hold the hands gently and to distract the Resident. Irrespective of this discrepancy in recollections:

A. it was clearly intended and understood by both witnesses that the only purpose of holding hands was to permit the Procedure to occur;

B. this would have required some pressure exerted on the Resident’s hands for a relatively short period of time; and

C. the Resident did not sustain any bruising.

[141] Ms Kadel’s evidence, and conduct afterwards, indicates that she did not otherwise consider the Procedure that occurred on that date to be particularly memorable, let alone reportable.

[142] I do not consider that on the evidence, the alleged conduct of Ms Mazi (considered separately and collectively), (set out in the allegation letters) constituted a valid reason for the dismissal.

(b) whether the person was notified of that reason

[143] Ms Mazi was notified of the allegations against her by way of the First Allegations Letter, and further allegations were put to her five days later, by way of the Second Allegations Letter. These allegations were repeated in the dismissal letter and it was recorded that she had not responded to the allegations at the meeting.

[144] The submissions on this point were limited. I am satisfied Ms Mazi was notified of the reason for dismissal prior to her dismissal via the two allegation letters. However, these were provided without opportunity to query them and given in quick succession. The alleged breaches of the Respondent documents were not explained. As was observed by a Full Bench of the Commission in Crozier v Palazzo Corporation Pty Ltd, the purpose of notification is to provide an opportunity to respond. 44 The notification of the reasons was compromised by the manner in which the allegations were provided and the haste of the process.

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

[145] I consider that Ms Mazi was not afforded a complete understanding by the employer of the allegations against her. The allegations covered a period of months and lacked some specific particulars to enable appropriate responses.

[146] These were very serious and allegations of criminal conduct which could have significantly impacted Ms Mazi’s career and livelihood. The right to not self-incriminate was not raised with her prior to the sought explanations. It appears it was unclear to Ms Mazi, the full extent of allegations or the potential for a related criminal process, until generally advised of such by her union. Further the adjournment requested for her to provide a response was (relatively) brief, being only six days. This was a limited period to endeavour to find representation and be prepared to respond. Further, no consideration was given to the fact that the allegations were criminal in nature and had been reported to the Police and that Ms Mazi was exposed to potential self-incrimination.

[147] These were serious allegations involving elder abuse in an industry under increasing scrutiny. Ms Mazi was the regular RN with residents, and it is understood that the risk to her professional standing was high. Ms Mazi was given 1 week to seek advice and to provide a response to the Respondent; this was not a reasonable time for this. Ms Mazi as previously notified to the employer, attended the meeting and chose not to respond; this should not be construed as an admission of guilt. Her union advised, understandably, in the circumstances of potential criminal findings that they could not appropriately represent her. Whilst the employer has provided an opportunity to respond as required, Ms Mazi could not avail herself of it, due to her entirely justified concerns, regarding a response and at the time not being able to gauge the impact on her career.

[148] Whilst she was given an opportunity to respond, the criteria is not satisfied, as the notification of the allegations to her was rapid and the notification deficient and therefore her response was not based on a full explanation of the circumstances put against her. Nor an ample opportunity to respond.

[149] I am not satisfied that Ms Mazi was given an opportunity to respond to the allegations as to her conduct, in a procedurally appropriate manner.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[150] Where an employee is protected from unfair dismissal and has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[151] The First Allegations Letter specifically invited Ms Mazi to bring a support person to the meeting. Ms Mazi was reminded at the meeting that she could bring a support person if she wished. Ms Mazi did not do so. The Union had indicated they were not able to represent her given the allegations contained criminal allegations. The Applicant had sought an adjournment to seek representation.

[152] Whilst, I am satisfied there was no unreasonable refusal to allow Ms Mazi to have a support person present, however in the circumstances, the employers required timing of the meeting responses and the gravity of the allegations prevented a procedurally fair meeting for the Applicant. She was not able to have a relevant support person, that is she sought to obtain a representative, to assist in the serious discussions. She was unable in the time provided, to do this. She advised the Respondent of this, and on that basis would not be able to respond to the questions at the meeting.

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

[153] No prior warnings had been afforded to the Applicant and the allegations covered a period of some months. The accumulated series of allegations were dealt with in an aggregate manner. The Respondent has dedicated Human Resources personnel. The Respondent did not challenge these submissions or make submissions challenging this point.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[154] The Respondent is a large well-resourced corporation employing approximately 3,500 employees. The Respondent did not challenge this submission or make submissions on this point.

[155] Given the size and resources of the employer and that the reason for dismissal related to a critical issue, relevant to the work of this employee (and could have resulted in a criminal charge and the withdrawal of her registration), the process was quickly undertaken and lacked fairness.

[156] The termination procedures were deficient in the context of the large employer with a dedicated Human Resources department. The nature of the employee statements provided, indicated that the allegations were not tested, nor was a proper investigation undertaken.

[157] Further, in terms of the process before the Commission, two senior Officers were involved in relation to the application, and in all procedural matters prior to the Hearing.

[158] It was brought to their attention, after the materials were filed in response to the application, that there were significantly limited materials, to defend the serious allegations, made with regard to the Applicant’s conduct. Only two, very short statutory declarations were provided, (on one of the allegations) with very brief detail, considering the range of allegations and the significant implications for the allegation against the Applicant’s nursing career.

(h) any other matters that the FWC considers relevant

[159] The allegations of elder abuse as set out, had the potential to end the Applicant’s nursing career. This was a significant element of this case. An elevated standard of procedure, commensurate with the size, resources and the repercussions of the dismissal was required.

CONCLUSION

[160] The Applicant’s evidence was given in a measured manner. Her responses indicated her clear, clinical, nursing knowledge and experience. Her demeanour was authoritative. Her evidence on the medical process was detailed and demonstrated her knowledge of patient care. She presented as being informed, capable and experienced and appropriate to be in the position of authority and responsibility in the care of elderly patients on the night shift. Her skill, ability and approach, were in clear contrast to those reporting to her, on the night shift, and those that made the allegations. Cross-examination of these witnesses revealed their allegations of elder abuse were not genuine and were casually made with no recognition of the implications for the Applicant’s job.

[161] During cross examination the Applicant’s frustration was evident, with the standard of work, and lack of attention discharged by her subordinates. It was clear from their evidence that the Applicant had raised her work issues, with these employees. The evidence of the support workers revealed, there was a linkage between the complaints, they had made about the Applicant, and their displeasure at being required to work to the Applicant’s standard.

[162] As previously noted, the complaints against the Applicant were initiated in retribution for the Applicant, previously critiquing the work of the subordinates, that gave evidence.

[163] There was significant reliance on the evidence of the two employees (this was a flaw in the Respondent’s case). Their evidence was not credible and in the circumstances where their qualifications and knowledge of the procedure was lesser, and their evidence on the patient’s response unreliable.

REMEDY

[164] Having determined that there was no valid reason and that the Applicant’s dismissal was procedurally and substantively unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that the Applicant should receive a remedy for her unfair dismissal.

[165] Reinstatement is the primary remedy for unfair dismissal, and compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case the Applicant is seeking reinstatement as the remedy. The Respondent submitted that reinstatement was not an appropriate remedy, given the further conduct of interference with patient records. The parties were, further to the Hearing and the subsequent Directions, were afforded a further opportunity to address remedy and to make submissions in relation to remedy as requested. The Respondent provided an additional more recent statement in relation to remedy. This evidence did not indicate any impediment (bar the issue of trust and confidence addressed later) to the Applicant’s reinstatement.

Applicants submissions on remedy

[166] The Applicant’s representative submitted that that the Respondent, as a large corporation with approximately 3,500 employees, could absorb the financial impact of any orders for compensation without suffering any appreciable effect on the viability of its enterprise.

[167] It was submitted that had the Applicant not been dismissed, she would have received $1,486.94 for each subsequent week.

[168] The Applicant submitted further, that she had attempted to mitigate her loss but that her ability to find alternative employment, was severely constrained by the repercussions of the dismissal and reporting of the allegations to the Australian Health Practitioner Regulation Agency, Queensland Police Service and Department of Health, and that she faced extreme difficulty in finding employment in the aged care sector (where she has been dismissed in the employment circumstances), as a result of allegations of elder abuse.

[169] The Applicant submitted that, prior to her dismissal, she expected to continue as an RN in the employ of the Respondent for the foreseeable future.

[170] The Applicant submitted that in the alternative, in the event that procedural fairness had been observed and the Respondent made the substantive decision to terminate the Applicant, the length of the continuing employment relationship would have been two weeks.

Respondent’s submissions on remedy

[171] Ms Patricia Ehlers provided an additional witness statement on behalf of the Respondent, addressing the reinstatement as remedy.

[172] Ms Ehlers submitted that, from the Company's perspective, it would be inappropriate for the Applicant to be reinstated, because she has breached numerous legal requirements, policies and procedures. She stated that due to the Applicant’s behaviour, the necessary relationship of trust and confidence, required to maintain the employment relationship, had broken down.

[173] Ms Ehlers further stated that the Respondent does not have trust in the Applicant as, in addition to her breaching the Quality of Care Principles 2014, the Nursing and Midwifery Board of Australia Code of Conduct, the Aged Care Act 2007 Accountability Principles (and placing Arcare in the position of breaching the Aged Care Act 2007 by Ms Mazi not making the mandatory report to Arcare), she also breached the Charter of Aged Care Rights and Arcare's Oxygen Policy. None of these documents were placed before the Applicant, to explain the alleged breaches. Further, given the allegations of abuse were not made out, the Applicant was not in breach as set out and therefore the impediment to reinstatement on this basis is not made out.

[174] In her further witness statement, Ms Ehlers referred to the incident where the Applicant had admitted that she entered Arcare Sanctuary Manors after hours while suspended and accessed, printed and removed client's confidential clinical records and personal information without their knowledge or consent or authority from the Respondent. The Respondent considered that this breach was intentionally deceptive, as the Applicant knowingly went to the Service on a Saturday afternoon around 5:00PM and left the Service around 7:00PM.

[175] The Respondent submitted that the Applicant’s role of AHS commenced around 11:00PM and finished around 7:00AM. The Applicant was solely responsible for providing necessary leadership to ensure effective and efficient management of the Service and Staff after hours. The Applicant was also responsible for efficiently and effectively addressing the concerns raised by elders and/or their representatives, plan and organise clinical care activities for elders/residents and provide safe provision of clinical care and support in a residential setting.

[176] The AHS is a trusted role requiring good clinical decision making, dedication, honesty and a person who operates with integrity. The Respondent submitted that they do not have trust in the Applicant to be able to perform this role, as evidenced by her behaviour. The Respondent submitted that in their view, the working relationship with the Applicant, had irreparably broken down. The Respondent opposed the reinstatement of the Applicant to her previous position, or any other position in the Respondent business.

[177] The Respondent submitted that they had irreparably lost trust and confidence in the Applicant’s capacity to care for vulnerable residents in a position with minimal supervision, and that orders for continuity of service and lost pay are also inappropriate.

[178] The Respondent submitted that if the Commission finds that Ms Mazi was unfairly dismissed, and that re-instatement is inappropriate, an appropriate award of compensation is limited to one week's compensation.

[179] The Respondent accepted that the Applicant took steps to mitigate her loss and did not dispute that an award of compensation would not have any appreciable effect on its business. The Respondent contended any compensation awarded should be substantially reduced if the Commission finds that there was a valid reason for termination relating to Ms Mazi's serious misconduct, but the termination was nevertheless unfair.

[180] The Respondent submitted that prior to her dismissal, Ms Mazi was contracted to work 66 hours per fortnight, at an hourly rate of $37.80, in accordance with the Arcare Pty Ltd – Aged Care Services, Queensland – Enterprise Agreement 2017. One week's compensation, calculated on the basis of a 33-hour working week, at an hourly rate of $39.13 (before tax and not inclusive of any superannuation or other allowances, such as overtime) is $1,291.29. The Respondent submitted that this represents an appropriate amount of compensation, having regard to the seriousness of the Applicant's misconduct.

[181] The Respondent submitted that there would be no continuing employment relationship with the Applicant in the circumstances where she was summarily dismissed for serious misconduct. It is necessary for the Respondent to discharge the onus of proof particularly in the circumstances of this case. The Respondent alleged the conduct was commensurate with summary dismissal, for serious misconduct. The Briginshaw test is relevant to this assessment.

[182] However, the elevated criminal test would be relevant if the matter was considered in circumstances beyond the Commission findings, that provided for the Applicant losing her certificate to practice nursing.

Remedy Consideration

[183] In terms of the consideration of remedy, the Applicant sought reinstatement. The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392 of the Act. Relevant references were recorded in the Directions. In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence raised by the Respondent must be considered. The following observations regarding the issue of loss of trust and confidence in Australia Meat Holdings Pty Ltd v McLauchlan, 45 are relevant:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability…

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Relations Court said:

“...We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.” 46

[184] In considering reinstatement, the issues relevant to the disciplinary action and the process used must be considered against the practicalities of reinstatement at the workplace.

[185] The process leading to the termination was procedurally flawed.

[186] In conclusion, based on the evidence there was no valid reason for the dismissal, the process was initiated improperly and was procedurally and substantively unfair. The loss of the Applicant’s employment was harsh and unjust. It is necessary to consider the question of remedy. As required by sections 390, 391, 392 and 393 of the Act, I am satisfied that the Applicant’s employment was protected from unfair dismissal and that she has been unfairly dismissed. The remedy sought is reinstatement. Compensation can only be awarded in circumstances where it is not considered appropriate to award the primary remedy of reinstatement.

[187] In assessing the evidence, there were no impediments to reinstatement made out on the evidence.

[188] The further submissions of the parties on remedy have been considered. On the basis of the evidence, Ms Mazi did not commit the primary alleged misconduct of patient abuse, in carrying out of her duties. Ms Mazi carried out a difficult and uncomfortable procedure, as she was trained and qualified to do. I have already found that this was not misconduct or a valid reason for dismissal and I do not consider it is a bar to her reinstatement. Nor did the evidence of the other allegations support the dismissal. It is also noted that the Applicant was not taken in the termination letter to the specific provisions of the documents that she was alleged to have breached.

[189] Further in consideration of the matter of the records, I have considered the Respondent’s loss of trust and confidence in Ms Mazi. I do not consider it is soundly based in the circumstances and that it should not be an impediment to reinstatement. There was no finding of any wrongdoing or poor performance or breach by Ms Mazi outside of the alleged breaches, with patient records. However, but for the false allegations of elder abuse, Ms Mazi would not have been placed in a position to rapidly gather the records to defend her registration. This led to her accessing and copy the documents. In that regard, I consider the situation arose only because Ms Mazi was faced with serious, potentially criminal, allegations on an invalid and procedurally unfair basis.

[190] I have already found that the circumstances in which Ms Mazi accessed and copied confidential documentation, including patient records, was one in which she was under real duress. Ms Mazi did not deny accessing or copying the documents. It was not argued that Ms Mazi accessed the documents for any reason but to inform her response to her employer’s allegations as part of the investigation and the required response. Ms Mazi took the steps she did in accessing and copying the documentation solely to assist in preparing a response to the allegations put to her in circumstances where the specific allegations were not clearly identified and where Ms Mazi was under considerable pressure. Nonetheless, I consider this conduct a serious breach, in circumstances where the respect for the custody of the patient documents was known to her. I am confident that the employer would have denied her access to the documents, but she required access to respond. It does not in balancing those matters create an impediment to reinstatement. Accordingly, the breach will be dealt with in considering compensation.

[191] There is no evidence before me that the Respondent could not afford to reinstate Ms Mazi, nor is there any evidence that there is no role for her. Accordingly, I am satisfied that an Order should be made requiring that the Respondent reinstate Ms Mazi by appointing her to, the position in which she was employed immediately before the dismissal.

[192] In making an order for Ms Mazi’s reinstatement, I consider it appropriate that Ms Mazi should not receive the full amount of her lost remuneration. I note that the Commission has discretion to order the payment of “an amount” for lost remuneration and such an order may be for the full amount or part of it. 47 Notwithstanding my finding that Ms Mazi was unfairly dismissed, Ms Mazi did not deny that she accessed and copied documents including confidential records and patient information. I have found this is a serious breach of her employment.

[193] The Applicant, after receiving the further allegations, accepted she should not have entered the facility, accessed the IT system, and removed any property, but submitted the gravity of the conduct was mitigated by the circumstances of the case, in terms of being suspended, as a result of serious allegations made against her, and it was an unfamiliar and very stressful situation with her employment in jeopardy. The Applicant said she did not yet have any support and representation, and did not properly understand her rights and obligations at that time. The Applicant’s actions were clearly driven by her real concern for her career, however, given her experience, the privacy of patient documents should have been known to her.

[194] While I accept Ms Mazi’s evidence that she considered that the restriction on accessing confidential records, especially patient information, did not apply to her when the purposes of doing so was to inform her response, I consider that she should have known, consistent with her practice as an RN. Ms Mazi is a qualified registered nurse and AHS, with significant responsibility and training as well as industry experience. The Respondent has its own policies regarding protection of patient information, and there are additional industry standards and legislative safeguards around data privacy, particularly in the medical and care industries.

[195] The amount by which I intend to reduce the order for lost remuneration is an amount of 75% which reflects the seriousness of Ms Mazi’s conduct subsequent to being stood down and investigated, for the allegation.

[196] I therefore award an amount for lost remuneration to Ms Mazi for her unfair dismissal in the amount of $23,047.57, (which is also less than the capped amount but also accounts for the reduction of the interim earnings).

CONCLUSION

[197] For all of the aforementioned reasons, it is determined that the Applicant was unfairly dismissed, accordingly the application pursuant to s.394 of the Act is upheld. I consider the Respondent’s reasons for dismissal, in that it considered that the Applicant had engaged in the alleged misconduct of elder abuse is not substantiated. The other allegations also were not made out and would not equate to a valid reason, as set out. No loss of trust and confidence in returning to undertake her duties has been made out. It is appropriate, based on the evidence and submissions, to make an order pursuant to s.391(1)(a) for reinstatement to the position in which the Applicant was employed, immediately before the dismissal. In addition, an Order is made pursuant to s.391(2) of the Act, to maintain the continuity of the Applicant’s employment and to ensure the period of continuous service.

[198] In the circumstances, where it is considered that there is no valid reason for the termination, but a breach due to the accessing of patient records and it is considered that the termination was harsh, unjust and unreasonable. It is therefore considered appropriate to make an Order for compensation, as set out, this does not restore the Applicant’s lost remuneration in terms of ordinary time wages for the period between the dismissal and the reinstatement. The Order, as explained reduces the amount in recognition of the conduct of accessing the records.

[199] I have determined that in the circumstances of this case, it is appropriate to make a 75% deduction, from the amount awarded for lost renumeration, on the basis of the Applicant’s conduct in accessing and removing confidential patient records from her workplace without authorisation. This conduct was inconsistent with her employee obligations; however, I do not consider this conduct alone amounted to a reason for the dismissal, although it is considered sufficiently serious, as to warrant a significant reduction in interim renumeration.

[200] An Order requiring the Respondent to reinstate the Applicant to the position that she held immediately prior to her dismissal will issue with this Decision. The reinstatement is to occur in 14 days from the date of the decision, and to be implemented with continuity of service and employment. The payment of the amount of $23,047.57 plus $2,189.51 in superannuation as set out, is also to occur within 14 days from the date of this Decision.

[201] An Order to that effect will issue with this Decision.

[202] If the Respondent faces operational difficulty in paying this amount, or returning the Applicant to the roster in the timeframe provided, or there are associated issues with such, they are at liberty to apply to my Chambers to seek to vary the Order. If they intend to do so, they must do so within seven (7) days of this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR724639>

 1   Transcript PN10-PN32

 2   Transcript PN295-PN321

 3   Exhibit 1, Applicant’s statement dated 16 December 2019, annexure GM4

 4   Applicant’s Closing Submissions dated 17 February 2020 at [38]

 5   Exhibit 2, Applicant’s witness statement dated 20 January 2020, [4] to [7], [15]

 6   Ibid, [2] to [7]; Exhibit 1, Applicant’s witness statement dated 16 December 2019, annexure GM2

 7   Exhibit 2, Applicant’s witness statement dated 20 January 2020, [42]

 8   Further Witness Statement of Grace Mazi dated 20 January 2020 at [26]

9 Exhibit 2, annexure GM11.

 10   Respondent’s Outline of Submissions at [64]

 11   Respondent’s Closing Submissions dated 21 February 2020 at [79]

 12   Transcript, [PN809] – [PN811]

 13   Applicant’s witness statement dated 20 January 2020 at [48]-[50]

 14   Transcript at PN444

 15   Transcript at PN444-448

 16   Transcript at PN491

 17   Ibid at PN450-451

 18   Ibid at PN455

 19   Ibid at PN585-591

 20   Ibid at PN597

 21   Ibid at PN620-622

 22   Ibid at PN630

 23   Ibid at PN700-703

 24   Ibid at PN1093

 25   Ibid at PN1113

 26   Ibid at PN1130-1131

 27   Ibid at PN1208-1209

 28   Ibid at PN1217-1221

 29   Ibid at PN1234-1239

 30   Ibid at PN1350

 31   Ibid at PN 1351

 32   Ibid at PN1353

 33   Ibid at PN1366

 34   Ibid at PN1367

 35   Ibid at PN1281-1285

 36   Ibid at PN780

 37   Ibid at PN847

 38   Ibid at PN817-818

 39   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]

 40   Ibid

 41   Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) at para. 19

 42   (1930) 60 CLR 336

 43   Ibid at PN445

 44   (2000) 98 IR 137 at 151.

 45   (1998) 84 IR 1

 46   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192

 47   Symes v Linfox Armaguard Pty Ltd t/a Linfox Armaguard [2018] FWC 7142; upheld on appeal in Linfox Armaguard Pty Ltd T/A Linfox Armaguard v Craig Symes [2019] FWCFB 556