Cecile Reader and Wyndham Lodge Nursing Home
[1995] IRCA 4
•13 Jan 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY NO. VI 837 of 1994
BETWEEN
CECILE READER
Applicant
AND
WYNDHAM LODGE NURSING HOME
Respondent
MINUTES OF ORDER
13 January 1994 Judicial Registrar Tomlinson
THE COURT ORDERS:
That the application of the Applicant Cecile Reader be dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY NO. VI 837 of 1994
BETWEEN
CECILE READER
Applicant
AND
WYNDHAM LODGE NURSING HOME
Respondent
REASON FOR DECISION
13 January 1994 Judicial Registrar Tomlinson
This is an application under s 170 EA of the Federal Industrial Relations Act of 1988. The Applicant claimed:
An order that the termination of employment on 13.6.94 contravened Division 3 of Part VIA of the Industrial Act.
Reinstatement under Section 170 EE of the Industrial Relations Act.
Compensation at the rate of $840.00 per week for week she has not worked since 13 June 1994 (but allowing for various set-offs).
Such other orders as would place her in the same position had her employment not been terminated.
The Applicant is a Registered Nurse who has been employed by the Respondent and its predecessor since 1987. The Respondent operates a geriatric nursing home for some 30 residential patients. The Applicant was employed mainly as the responsible supervisory registered nurse on the day shifts, that is from 7 am until 3.30 pm.
At the outset of these proceedings Mr Fehring of Counsel on behalf of the Applicant alleged the circumstances giving rise to the termination occurred on 12 and 13 June 1994. Further, that late in the afternoon of the previous day, that day being Tuesday 6 December 1994, his instructing attorney received a letter from the Respondent’s solicitors stating, inter alia, that matters other than those which occurred on 12 and 13 June 1994 would be relied upon by the Respondent in resisting the Applicant’s claims. Mr Fehring sought an order that on the basis of Wheeler v Phillips 97 ALR282 at p.306 that the Respondent be prevented from placing such further allegations before the Court. On behalf of his application it was argued that if the Respondent was allowed to do otherwise it would mean the the positition of the Applicant was being “abused” as she had no knowledge of any such other matters.
Further, it was argued, the Applicant had no knowledge of these other matters as they had not been raised or referred to by the Respondent’s solicitors previously. The Court ruled that in determining if a termination of employment was to be unlawful then the whole of the history of the employment together with any matters or incidents involving allegations made by the employer against the employee were relevant to the proceedings before the Court and accordingly the application was dismissed.
On behalf of the Applicant the Court heard evidence from:
Mrs Cecile Reader, Registered Nurse,
And on behalf of the Respondent the Court heard evidence from:
Mrs Hazel Edwards, Enrolled Nurse
Mrs Heather Grima, Enrolled Nurse
Mrs Michelle Sweeting, Enrolled Nurse
Mrs Carol Kinnear, Enrolled Nurse
Mrs Anne Canterbury, President of the Management Committee of the Respondent.
The Applicant Mrs Cecile Reader told the Court she was 55 years of age and that she had completed her training to become a registered nurse in 1962. As a registered nurse, Mrs Reader, in the course of her employment with the Respondent, supervised a staff of some five enrolled nurses and that Wyndham Nursing Lodge provided total care for some thirty resident patients. The Applicant stated that she alone as the registered nurse in charge of the particular shift had the responsibility of administering medication from the drug trolley.
Central to this application is the treatment accorded by the Applicant to one of the residents in the permanent care of the Respondent, Mrs Vera Bullard. It was common ground from all witnesses that Mrs Bullard was an elderly and frail resident who suffered from progressive dementia. With the exception of Mrs Canterbury all witnesses (who were employed by the Respondent) stated they had been treated aggressively by Mrs Bullard and that this treatment included hitting, biting and the pulling of hair.
It was further common ground that each resident admitted into care to Wyndam Lodge Nursing Home had especially created a personalised Nursing Programme which provided guidelines as to every aspect of the nursing and wholistic care. There were some eighteen or so residents who suffered with dementia and the Court was told that in addition to a Nursing Programme many such residents had a Behaviour Modification Management Programme. These programmes carefully outlined the medical treatment and the general care procedures to be used by the staff of the Respondent in looking after the residents. Many of these programmes used Validation Therapy as a means of dealing with bouts of aggressive conduct exhibited by dementia sufferers. Validation therapy employed techniques of Diversion Therapy and all witnesses stated these techniques were relatively successful in dealing with bouts of aggression and confusion exhibited from time to time by the residensts.
The evidence from the Applicant dealt in the main with the incidents on 12 and 13 June 1994. At that time the Applicant stated Mrs Vera Bullard had been a resident for some 12 months and her condition was such that she could not bathe and dress herself although she was ambulatory and could feed herself. Mrs Bullard’s doctor and the Director of Nursing, Sister Sargeant and with input from other staff members devised for her a specific and personalised Nursing Programme.
At 8 am on the morning of 12 June 1994 the Applicant as the Registered Nurse in charge of the shift commenced as usual dispensing medication from the drug trolley. Nurse Sweeting and Nurse Kinnear were also on duty at that time. At 8.30 am the Applicant was approached by Mrs Bullard who proceeded to slap the Applicant twice on the face. The Applicant stated that Mrs Bullard then grabbed her nurses’ apron and it tore. The Applicant spoke then to Mrs Bullard and said:
“Don’t do that.”
However the Applicant stated that Mrs Bullard marched to the breakfast trolley picked up a bowl of food and threw it on to the floor. The Applicant stated she then approached Mrs Bullard and said:
“Come to your room.”
The Applicant made a move towards her whereupon Mrs Bullard seemed to sink at the knees towards the floor.
According to the Applicant she was assisted by Enrolled Nurse Mrs Carol Kinnear, whereupon the two nurses guided Mrs Bullard to her room and sat her in a chair.
One of the domestic assistants, present in the day room at the time of breakfast cleaned up the food on the floor. The Applicant stated she completed her medication round between 9.30 am and 10 am. The Applicant then had her morning tea together with Nurse Kinneer and Nurse Sweeting at which time she mended with needle and thread her torn apron. The incident involving Mrs Bullard was not discussed. The Applicant testified that later on that morning the relatives of Mrs Bullard visited and that she spoke with them concerning the provision of more underwear as Mrs Bullard had destroyed them and apparently tore them up. The rest of the day passed without incident.
Shortly before the Applicant was due to commence work on 13 June 1994, the Applicant stated that she received a telephone call from the then Director of Nursing, Mrs Pat Sargeant who advised that the Applicant was to be suspended from duties immediately because of an incident about which two letters had been received from staff members. The Applicant stated Mrs Sargeant then requested her to provide a written report of the incident. Shortly thereafter the Applicant stated she received a second telephone call from the Director of Nursing requesting to come into the Nursing Lodge so that the incident referred to by Mrs Sargeant could be discussed in the presence of Mrs Anne Canterbury. The Applicant stated she replied that she would attend the meeting, but that as the incident was to be discussed she would not submit a report in writing.
At the meeting the Applicant stated Mrs. Canterbury asked her what happened the previous day and that the Applicant provided her account of the incident. The Applicant testified that Mrs Canterbury stated that she had two letters and a certificate from a doctor and that the employment of the Applicant was terminated. The Applicant stated that at this point Mrs Canterbury handed to her an envelope presumably containing money. The Applicant stated that she could not accept money without advice from her union. A few days later the Applicant stated she received a letter 13 June 1994 from the Respondent which stated:
“Dear Ms Reader
re: Employment at Wyndham Lodge Nursing Home Inc.
On behalf of the Committee of Management of Wyndham Lodge Nursing Home, I wish to inform you that due to your conduct resulting in instant dismissal, your services at the Wyndham Lodge Nursing Home are terminated without notice as of today, Monday 13 June, 1994.
Yours sincerely,
Anne Canterbury
President.”
Under cross examination the Applicant agreed that at all times staff were encouraged to treat the residents in a caring and understanding manner and that when shown Exhibit 3, the record of the Behaviour Management Programme prepared for Mrs Bullard, she further stated that her understanding of Validation Therapy was to be as caring as she could when Mrs Bullard showed signs of distress.
The Applicant denied the suggestion that she had been told not to deal with Mrs Bullard or that she had ever punched or hit Mrs Bullard.
The Applicant under cross-examination specifically denied that she had ever thrown a glass of water over Mrs Bullard at an earlier occasion. The Applicant specfically denied stating to Mrs Grima:
“Validation means hitting patients back.”
The Applicant agreed she attended counselling sessions in early 1994 as a result of a suggestion made by the then Director of Nursing as a result of incidents between herself and the resident Mrs Vera Bullard.
The Applicant specifically denied a further incident which occurred late in 1993 which it was put to her that she had maybe again been violent towards Mrs Bullard. The Applicant stated Mrs Bullard at the time in had an injured arm. .It seems that at the time in question the Applicant was undressing another patient for bed and in order to lead Mrs Bullard quietely from the room the Applicant had placed her hand on Mrs Bullard’s waist and gently guided her through a doorway.
Mrs Hazel Edwards gave evidence that she was employed as a State Enrolled Nurse by the Respondent and that her duties were to attend to the wholistic nursing requirements of the residents. Mrs Edwards stated that she had often been treated with physical aggression by the dementia sufferers at which point she employed diversional therapy as to meet aggression with aggression only made the situation worse. Mrs Edwards testified she believed Mrs Bullard to be in the first stage of dementia in that she was occasionally verbally and physically aggressive further that Mrs Bullard had left the nursing home some 3 or 4 months ago. Upon being shown Exhibit 3 Mrs Edwards testified it was the Management Programme for Mrs Bullard.
The main area of evidence provided by Mrs Edwards concerned an incident which she stated occurred at 6 pm on 16 February 1994. At that time she heard loud shouting and so hurried to investigate and saw the Applicant with her hands on the forearms of Mrs Bullard and forcing Mrs Bullard through a doorway. Mrs Edwards stated that at the time of the incident Mrs Bullard was crying with pain and that she was aware Mrs Bullard had a fractured forearm. In cross-examination Mrs Edwards confirmed that she had witnessed a nasty incident but that she did not fill out an Incident Report.
Mrs Edwards told the Court the incident was later discussed in a group situation in the presence of the Applicant who did not deny that it had occurred. Mrs Edwards also stated that in the Behaviour Modification Programme for Vera Bullard only one person was to be the carer for that particular shift.
It was common ground that the layout of the nursing home included a large centrally placed “Day Room” where each resident had his or her chair, nursing station at one end. From the Day Room were corridors which led to bedrooms.
Mrs Heather Grima told the court she had trained as a state Enrolled Nurse 28 years ago and that she had been employed by Wyndham Lodge for 12 years. The evidence of Mrs Grima accorded with that given previously as to the duties of the nursing staff and as to the aggressive tendencies of Mrs Bullard.
In her examination in chief Mrs Grima stated:
“I was walking past the nurses station and I could hear Vera and Mrs Bullard (sic) and Sister Reader in loud voices and I sawVera throw a cup of tea at Lee, Sister Reader, and Sister Reader retaliated by throwing a glass of water over Vera and there were a few hits
as well.”
And that after she had thrown the water the Applicant had said to Mrs Bullard:
“You don’t like it being done to you do you”.
Mrs Grima then assisted to calm Mrs Bullard down and to change her wet clothes. The witness stated she wrote a written statement two days after the incident of her own volition and that she handed it to the Director of Nursing. The Court heard evidence that Mrs Grima had a conversation with the Applicant wherein the Applicant justified her retaliatory actions towards Mrs Bullard on the basis that it was part of Validation Therapy.
Mrs Michelle Sweeting stated that she had been a state Enrolled Nurse for five and a half years and she had worked at Wyndham Lodge since August 1992 and that in nursing Mrs Bullard she took into account both the Nursing Management programme the Behavioural Programme designed specifically for her.
On 12 June 1994 Mrs Sweeting stated that at breakfast time she was sitting in the day room feeding a resident while the Applicant was standing at the drug trolley. It seems that as Mrs Bullard approached the Applicant to assist her with her dressing gown that Mrs Bullard twice motioned the Applicant away, subsequently Mrs Sweeting stated she saw the Applicant do a half turn and say to Mrs Bullard:
“That’s twice you have hit me.”
And then apparently the Applicant struck Mrs Bullard on the forearm. In cross-examination Mrs Sweeting testified she saw the Applicant hit Mrs Bullard with an open hand across her arm. Upon seeing this the witness stated she told another nurse who was seated nearby that the Applicant had struck Mrs Bullard. After that the witness stated:
“Mrs Bullard then turned to go back to her room which was down past
the nurses station. As she approached the other trolley she pulled a
breakfast bowl off the trolley and threw it on the floor and it splattered
everywhere. And Mrs Bullard kept walking.”
After the incident the witness completed an Incident Report and further stated she did not report the incident to her immediate superior at the time as at the time her superior was the Applicant Mrs Reader. The witness stated however that she reported the matter to her superior when she was on duty the following day, that day being Monday 13 June 1994. Subsequently Mrs Sweeting was called to a meeting with the director of nursing, Mrs Kinnear and Mrs Anne Canterbury where the incident was discussed.
On behalf of the Respondent Mrs Carol Kinnear told the Court that she completed her training in 1986 and that she had been employed as an Enrolled Nurse by the Respondent for some five years. Mrs Kinnear substantiated the earlier evidence as the manner in which the Respondent nursing home discharged its responsibilites towards its residents.
With regard to the incident on 12 June 1994 the witness stated:
“I was breakfast time...I’ve (sic) been feeding some of the residents.
I was behind the nurses’ station...I was...walking through..Sister
Reader was with the drug trolley...and there was a breakfast trolley..
As I walked down this - towards this way Vera walked up from the
passage way,...I couldn’t really tell you if they made contact then but
short - like a second or so after that Sister Reader hit Mrs Bullard in
the back with a closed fist... I heard a thump when she hit her...I also
heard on of the nurses say that Lee - she said “Lee’s hit her.’ Vera
then continued to walk up the passageway towards a breakfast trollery.
She threw a bowl from the - the trolley and Sister Reader proceeded to
go after her and she dragged her up the passageway into her room.”
Mrs Kinnear told the Court the incident shocked her and that it was discussed with other members of staff and that the matter was reported the following day.
Mrs Anne Canterbury gave evidence on behalf of the Respondent and stated that her full time occupation is Executive Director of Keep Australia Beautiful and in addition to that she had a number of community interests in the health field. Mrs Canterbury is the president of the Wyndham Lodge Nursing Home committee of management and among other things is on the Board of the Mercy Hospital . Mrs Canterbury stated that on 12 June 1994 - the Queens’s Birthday week-end - she was telephoned at her home by the Director of Nursing of the Respondent and advised that there had been an incident between the Applicant Mrs Reader and the resident Mrs Vera Bullard.
Mrs Canterbury told the Court she immediately sought specialist advice and was told the incident was one of grave misconduct. It is clear from the evidence of this witness that her first priority was the care and wellbeing of the residents entrusted to the care of the Respondent. Mrs Canterbury made the decision to meet with the two employees - Mesdames Sweeting and Kinnear and to hear for herself exactly what had occurred.
It is my assessment of the position that Mrs Canterbury formed the opinion in her own mind as result of her own enquiries from the members of staff that the actions of the Applicant did in fact constitute grave misconduct but that she should hear the Applicant on the matter as soon as possible.
I find the actions of Mrs Canterbury to be thoroughly responsible and in fact she had no other option but to do as she did. At the meeting of Mrs Canterbury and other staff members the written reports referred to earlier were examined and discussed. Mrs Canterbury described the state of the two witnesses at that time as being “traumatised” which in my opinion reinforces my comprehension of the position that the incident did in fact occur.
Quite properly the Applicant was then summoned and an explanation called for. In evidence of Mrs Canterbury the Applicant could not justify nor adequately explain what had happened. The Applicant was subsequently dismisssed without notice for grave misconduct. In addressing the Court counsel for the Applicant suggested that there was a statutory requirement upon the employer to put the allegations to the Applicant and in my view this was done.
Further, it is my view that the employer acted prompty in dealing with the matter and conducting appropriate investigations by examining the written reports and discussing the matter with witnesses.
Section 170 DB(i) of the Act deals with the reasons warranting termination. That section states:
An employer must not terminate an employee’s employment unless:
(b) the employee is guilty of serious misconduct, that is, misconduct
of a kind such that it would be unreasonable to require the employer
to continue the employment during the notice period.
It is my opinion that this section governs the termination of the Applicant Mrs Reader. During the course of proceedings reference was made to other incidents involving the Applicant and Mrs Vera Bullard. I have chosen not to deal with those incidents in reaching my decision and I find that in dismissing the application of the Applicant only the matters which occurred over the week-end of 12 June 1994 to be relevant.
In closing on behalf of the Applicant, Counsel was of the view that the fact that the main witnesses disagreed on certain points should have the effect of invalidating the whole of that particular evidence. I do not agree. To my mind the incident in the day room did in fact occur, an incident of such gravity that instant dismissal was warranted. Any discrepancies as to detail did not detract from the firm cconviction exhibited by all witnesses that the incident did occur. The residents and the general public must have confidence the fact that those entrusted with the care of frail and elderly people will act honourably and correctly at all times. I find that the Executive Director and the staff of the Wyndham Nursing Home Lodge to have so acted.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Decision of Judicial Registrar Tomlinson.
Associate:
Dated : 13 January 1995
APPEARANCES
Counsel for the Applicant : Mr I Fehring
Solicitors for the Applicant : Wilson Potter Nicholson
Solictors for the Respondent : Tanya Cirkovic & Associates
Dates of hearing : 7, 8 and 9 December 1994.
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