D'Antuono v Minister for Health
[1996] IRCA 430
•17 September 1996
DECISION NO: 430/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - allegation of UNLAWFUL TERMINATION - mental health nurse - whether VALID REASON FOR TERMINATION - whether conspiracy to terminate applicant because of UNIONI ACTIVITIES - application dismissed.
Industrial Relations Act 1988 (C'th) ss 170DB, 170DE, 170EA
Criminal Code (WA)
Evidence Act 1995 (C'th) ss 102,108(3)
Inquiry Agents Act of Western Australia
Security Agents Act of Western Australia
Termination of Employment Convention
Blyth Chemicals v Bushnell (1933) 49 CLR 66.
Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20.
DPP v P [1991] 2 AC 447.
Garbutt v Stothers, IRCA 2452/95, Ritter JR, 27 August 1996, unreported.
Gibson v Bosmac (1995) 60 IR 1.
Kenefick v Australian Submarine Corporation Pty Ltd (1995) 131 ALR 197.
DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 100 ALR 468.
Martin v Osborne (1936) 55 CLR 367.
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50.
Peet & Co Ltd v Rocci [1985] WAR 164.
Pfennig v R (1995) 182 CLR 461.
Sheldon v Sun Alliance Australia Ltd (1990) 53 SASR 97.
State of Victoria v Commonwealth of Australia, High Court of Australia, 4 September 1996, unreported.
Turner v Carpet Call(Victoria) Pty Ltd (1994) 59 IR 78, 84-85.
Report of an Inquiry into the Treatment of Psychiatric Patients at Graylands Hospital and Other Psychiatric Hospitals in Western Australia, CL Zelestis, 14 July 1989ANTONIO D'ANTUONO v MINISTER FOR HEALTH, WI 2574 OF 1995.
Before: RITTER JR
Place: PERTH
Date: 17 September 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 2574 OF 1995
B E T W E E N:
ANTONIO D'ANTUONO
Applicant
A N D:
MINISTER FOR HEALTH
Respondent
MINUTE OF ORDERS
17 SEPTEMBER 1996 RITTER JR
THE COURT ORDERS THAT:
1. The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI95/2574
B E T W E E N:
ANTONIO D'ANTUONO
Applicant
A N D:
MINISTER FOR HEALTH
Respondent
REASONS FOR JUDGMENT
17 SEPTEMBER 1996 RITTER JR
INTRODUCTION
This application was a claim by Mr D'Antuono for a remedy in relation to the termination of his employment by the respondent, pursuant to section 170EA of the Industrial Relations Act 1988 (C'th) ("the Act"). The respondent operates the Armadale Kelmscott Health Service, including Armadale Lodge. Armadale Lodge is a psychogeriatric centre. Employed by the respondent at Armadale Lodge are a Director of Nursing and mental health nurses of various levels. Mr D'Antuono was a Registered Mental Health Nurse, Level 1. He was first employed by the respondent on 19 April 1988 at Armadale Lodge. His employment was probationary until 24 August 1988, when he became a permanent employee. Mr D'Antuono remained an employee of the respondent at Armadale Lodge until 15 December 1995. On that date, his employment was terminated by Mr Paul Howard, the Director of Nursing at Armadale Lodge (Level 5).
Mr Howard terminated the employment of Mr D'Antuono because of an incident involving Mr D'Antuono and a patient, Mr Kenneth Griffin, which took place on 13 November 1995. The termination of employment followed an investigation into the incident.
At the time of the termination, Mr D'Antuono was given a letter by Mr Howard. This stated that Mr Howard had taken into account the documented work record of Mr D'Antuono in determining the penalty for his misconduct. Mr Howard stated that this record included instances of poor professional competence; matters relating to poor standards of interaction with staff, patients, carers and the public; and instances of previous disciplinary action taken against Mr D'Antuono.
The letter also referred to an allegation of inappropriate conduct concerning a patient called Mrs Mabel Forbes on 19 November 1995. A complaint about Mr D'Antuono's conduct with Mrs Forbes was made by Ms Susan Maier, who was an enrolled mental health nurse. The letter of Mr Howard dated 15 December 1995 indicated that he determined that the allegation was substantiated and constituted unprofessional and inappropriate conduct. However, the letter noted that as Mr D'Antuono had been dismissed in relation to the Ken Griffin incident, a penalty would have no actual force, so he did not determine one.
Mr D'Antuono alleged that there was no valid reason for the termination of his employment and/or the termination of his employment was harsh, unjust or unreasonable, thereby constituting a contravention of section 170DE(1) and/or section 170DE(2) of the Act.
The respondent contended that there was a valid reason for termination, as set out in the letter of Mr Howard dated 15 December 1995. The respondent therefore contended that it had discharged its onus of proof under section 170EDA(1).
As will be detailed later in this judgment, this case was very keenly contested. The applicant was represented by his solicitor, Mr Carija, and the respondent, by Mr Hooker, an employed solicitor at the Crown Solicitor's Office.
Evidence was given at the trial over 10 days, these being 16 April 1996, 29 April, 1996, 30 April 1996, 1 May 1996, 2 May 1996, 3 May 1996 and 14 to 17 May 1996. The cross-examination of the final witness called on behalf of the respondent concluded at after 5 pm on 17 May 1996. That day was a Friday. There was no capacity for the Court to continue to hear the case on the following Monday. Therefore, with the agreement of both parties, it was ordered that written closing submissions be provided. The closing submissions on behalf of the respondent were filed at the Court on 28 May 1996 and on behalf of the applicant on 4 June 1996. I had, at the conclusion of proceedings on 17 May 1996, formally reserved my decision. The evidence comprised some 1,136 pages of transcript and there was a large number of exhibits that were tendered (over 100).
The witnesses who gave evidence for the applicant were :
1.Mr Antonio ("Tony") D'Antuono, the applicant
2.Mr Michael Zegulewski, a Mental Health Nurse-Clinician, at Armadale Lodge, Level 2
3.Mr Adam Dzieciol, a Legal Practitioner, currently employed as an Industrial Officer with the Australian Nursing Federation
4.Mr Roland Sharples, an Enrolled Mental Health Nurse at Armadale Lodge
The witnesses called by the respondent were :
1.Ms Maria Van Hugten, a Mental Health Nurse-clinician, Level 2, at Armadale Lodge
2.Mr Geoffrey Miller, a Mental Health Nurse-clinician, Level 2, at Armadale Lodge
3.Mr Garry Colley, a Clinical Nurse-Specialist, Level 3, at Armadale Lodge
4.Mr Kenneth Griffin, the patient at Armadale Lodge who was the subject of to the alleged incident on 13 November 1995
5.Ms Susan Maier, an Enrolled Mental Health Nurse at Armadale Lodge
6.Mr David Walter ("Wally") Gibbens, a Health Department Investigator who investigated the Kenneth Griffin incident, amongst other matters, for Mr Howard
7.Dr Sharon Cullen, a Medical Practitioner, practising in part at Armadale Lodge
8.Mr James Thomson, the Director of Nursing at Graylands Hospital
9.Mr Ian Burns, a Clinical Nurse Specialist, Level 3, at Armadale Lodge
10.Ms Cecille Wainwright, a Supervisor at the WA School of Nursing who observed an alleged incident involving a Mr Hank Ellis, a patient, on 15 March 1989 at Armadale Lodge.
11.Mr Melvyn Jones, a then-Student Mental Health Nurse who observed an alleged incident involving Mr D'Antuono and a patient, Ms Edith Hodgson, on 18 February 1992
12.Mr Paul Lambourne, a then-Student Mental Health Nurse, who observed alleged incidents involving Mr D'Antuono and a patient, Mr William Mouat, in 1992; and
13.Mr Paul Howard, the Director of Nursing at Armadale Lodge (Level 5)
THE ISSUES AND ORDERS SOUGHT
In the closing written submissions, the applicant sought orders that :
1.The applicant be reinstated by the respondent to a similar position at the Fremantle Hospital Health Service (Moss Street Lodge or Fremantle Hospital Psychogeriatric Unit)
2.The Respondent treat the applicant as having been continuously employed by it from the date of termination to the date of reinstatement
3.The applicant receive all arrears of wages up to the date of the order
4.Pursuant to section 179A of the Act, interest be deemed payable on the amounts to be ordered to be paid.
5.Under section 356, payment of any penalties pursuant to sections 170EF, 178 or 301 should be paid to the applicant.
I state at the outset that in relation to proposed order number 5, there was no application before me pursuant to section 170EF, 178 or 311 of the Act. Therefore, these are not matters which I need to consider.
The respondent submitted :
1.There was a valid reason for the termination of employment, as outlined above
2.In the alternative, the termination of employment was not harsh, unjust or unreasonable
3.If the Court made a finding that the termination of employment was contrary to the Act, then reinstatement was impracticable in all of the circumstances, and the Court ought to consider the remedy of compensation.
THE STATE OF VICTORIA v COMMONWEALTH OF AUSTRALIA AND OTHERS, UNREPORTED, HIGH COURT OF AUSTRALIA, 4 SEPTEMBER 1996
In the above decision, the High Court considered the constitutional validity of parts of the Act, including sections 170DE and 170EDA. The Court found (at page 57 of the judgment of the majority) that section 170DE(2) went beyond the requirements of the Termination of Employment Convention (Schedule 10 to the Act) "to a constitutionally impermissible degree". The Court also found that part of section 170EDA, which stated the onus of proof in relation to an alleged contravention of section 170DE(2), to be similarly invalid.
However, the Court found that "they are structurally severable from the remainder of the Division. The operation of the remainder of the provisions of the Division will not be affected by their severance. Section 170DE(1), which accords with the Convention, can operate unaffected by the invalidity of section 170DE(2), which does not. Similarly, section 170EDA(1)(a), read down to exclude references to section 170DE(2), will implement the terms of Article 9 of the Convention, despite the invalidity of paragraph (b) in that sub-section. Hence, the stated purpose of the Parliament, in enacting the Division (Division 3 Part VIA of the Act) will not be affected."
Due to the decision of the High Court, section 170DE(2) is invalid and therefore I need not consider the application in so far as it related to that section of the Act.
THE VALID REASON FOR TERMINATION AND THE SUBMISSIONS OF THE RESPONDENT GENERALLY
As stated, the respondent's primary submission was that there was a valid reason for the termination of the employment of the applicant, relating to the applicant's performance and conduct as a registered mental health nurse. The respondent submitted that the chief stated reason for the dismissal of the applicant was his conduct towards Mr Griffin on 13 November 1995. The penalty imposed for that conduct, viewed in light of the employment history of the applicant, was one of termination. Therefore, no distinct penalty was imposed for the conduct of the applicant towards Mrs Forbes on 19 November 1995. The respondent submitted that the treatment by the respondent of the Mabel Forbes incident "can be seen as analogous to the imposition of a concurrent sentence in the Criminal Law. The Court is at liberty to regard the conduct comprising the Mabel Forbes' incident, as itself (when seen against a background of the applicant's employment history) constituting a valid reason for the termination of employment."
The "employment history" of the applicant, as relied on by the respondent, was set out in an appendix to the respondent's submissions headed "Submissions Concerning Admissibility of Events Prior to 9 November 1995". Part A of this document was a list of events occurring prior to 9 November 1995. These will be set out below.
The respondent submitted that the evidence of these events was admissible on the basis that the evidence constituted part of the employment record on which the respondent explicitly placed partial reliance in its letter of termination of the respondent's employment dated 15 December 1995 (Exhibit 77). I ruled that this evidence was admissible for this purpose early on in the trial (see transcript pp16-17). The context of this was during the evidence of Ms Van Hugten. Although a respondent witness, she was interposed as the first witness and prior to the opening of the applicant because she was due to travel overseas. In the course of her evidence, as will be considered in detail later, she related an earlier incident involving the professional conduct of Mr D'Antuono. Over an objection, I ruled that the evidence was admissible for the reason stated.
The respondent also submitted in closing, in summary, that :
1.The employment record of Mr D'Antuono was relevant in determining the appropriate penalty for an employee who had been involved in misconduct
2.If, as here, the employer has in fact placed reliance on the employee's employment record, there is additional and specific relevance in the evidence to the establishing of a valid reason for termination, pursuant to section 170EDA
3.The evidence is sufficiently probative of the occurrences in November 1995 and further, or in the alternative,
4.It is evidence of the matters to which Mr Howard had regard in his implementation of the disciplinary process in November - December 1995
5.Because of the way in which the applicant ran its case, it was submitted that "in respect of every witness for the respondent, it was suggested at least by implication, if not expressly, that evidence given by the witness was fabricated, reconstructed (deliberately or otherwise), or was the result of a suggestion". Therefore, the respondent submitted that earlier written statements by each of the witnesses could be taken into account in "buttressing" the credibility of the witnesses. Reliance was placed on sections 102 and 108(3) of the Evidence Act 1995 (C'th).
With respect to point 4 above, the respondent presented, in its closing submissions, an analysis of the "present law, concerning propensity, or similar fact evidence, particularly in light of relevant provisions of the Evidence Act 1995".
During the course of the trial, I indicated that I would, as part of the reasons for decision, consider these various alternative bases for the relevance of the evidence, in addition to that on which I made the ruling referred to above.
THE PREVIOUS INCIDENTS - THE ISSUES
The previous events upon which the respondent relied, prior to November 1995, as set out in a schedule to the Respondent's Closing Written Submissions, were the following :
(i)the performance of the applicant in his employment at Graylands Hospital
(ii)the fact that the applicant was terminated from his employment at Graylands Hospital and the reasons therefor
(iii)a misleading or inaccurate statement made by the applicant on his application to the Western Australian Industrial Relations Commission (Exhibit 29) concerning the first of his six weeks' appraisals at Graylands Hospital.
(iv)a knowingly false statement made by the applicant on his application for employment with the Armadale Kelmscott Health Service (Exhibit 41) as to the reasons for leaving his previous employment
(v)the use of incorrect nursing procedure on 1 March 1989 in moving a patient, Mr Hank Ellis, who had fractured his femur
(vi)the administration of medication on 24 December 1991 in an incorrect method with an incorrect dosage to a patient, Mr Bill Alexander
(vii)the use of incorrect nursing procedure on 11 January 1992 in moving Mr Alexander, who was at that time injured
(viii)an inaccurate report of matter (vii) above
(ix)an ongoing denial that action taken by the Clinical Nurse Specialist, Mr Ian Burns, regarding matters (vi), (vii) and (viii) above constituted counselling
(x)the removal of the special diet meal of a patient, Mrs Edith Hodgson, on 18 February 1992 and replacement of that meal with a jam sandwich
(xi)the aggressive and inappropriate transfer of a patient, Mr Finn Melsom, from a lounge chair to a dining chair on 28 February 1992
(xii)the conduct towards a patient, Mr William Mouat on 28 February 1992, involving striking him on the head and verbally abusing him on three separate occasions.
Prior to the hearing, the applicant's solicitor prepared, for my use during the hearing, a summary of the respondent's allegations.
This document sets out the following:
"NO.PATIENT DATE COMPLAINANT ALLEGED INCIDENT
1.Hank Ellis 15/3/91 Cecille Wainwright Moved fallen patient 4 times Result: No action taken
2.Bill Alexander 24/12/91 Ian Burns Incorrect dosage IM not orally and incorrectly recorded
Result: counselling & file note
3.Bill Alexander 11/1/92 Ian Burns Moved injured patient and inaccurate reporting to I Burns
Result: counselling & file note
4.Edith Hodgson 18/2/92 Melvin Jones Removed special diet and replaced with jam sandwich
Result: reprimand (warning), restriction of duties and special appraisal performed by I Burns
5.Finn Melsom 28/2/92 Paul Lambourne Aggressively moved patient
Result: reprimand (warning), restriction of duties and special appraisal performed by I Burns
6.William Mouat 28/2/92 Paul Lambourne Striking resident and verbal abusing on 3 occasions
Result: reprimand (same as in 5 above), restriction of duties and appraisals required
7.Elvie Robinson 13/3/92 Maria Van Hugten Punched back & pulled hair on several occasions
Result: no action taken
8.Mary Elliot 1995 Dr S Cullen Raised voice, forced inhaler/nebuliser
Result: no penalty
9.Kenneth Griffin 13/11/95 Miller See 17a-f of respondent's summary of facts
Result: serious misconduct, suspension then dismissal
10.Mabel Forbes 19/11/95 Susan Maier Entering bathroom of patient
Result: because dismissed, of 'no force'"
There was no evidence given about the occurrence of incidents 7 and 8.
The reference in incident number 9 (the incident involving Mr Griffin) to section 17(a) - (f) of the Respondent's Summary of Facts, is a reference to the following :
"17.On or about 13 November 1995, the applicant used unnecessary force and acted in an unprofessional manner in relation to an elderly resident of the Armadale Lodge (Mr Kenneth Griffin). Specifically:
(a) the applicant showed no compassion or respect for Mr Griffin
(b) employee used force in transferring Mr Griffin from his bed to the shower
(c) did not permit Mr Griffin to undress in private
(d) forced Mr Griffin into the shower without testing the temperature
(e) alternated the temperature of the water from hot to cold whilst Mr Griffin was under the water, and
(f) verbally abused Mr Griffin."
Apart from Mr Griffin, none of the patients gave evidence. Death Certificates were tendered for Mrs Hodgson, Mr Mouat and Mr Melsom.
THE CONSPIRACY THEORY
A central thrust of the applicant's case was that there was a deliberate attempt by Mr Howard to terminate the employment of Mr D'Antuono, because of his activities as the Australian Nursing Federation ("ANF") job representative at Armadale Lodge. Prior to the hearing, the applicant's solicitor filed a chronology of union activities of the applicant, numbering 1 - 11 and comprising dates from 13 December 1993 to 3 November 1995. These are Appendix A to this judgment. The applicant strongly submitted that Mr Howard was motivated by ill will and bad faith towards Mr D'Antuono, and engineered the termination of Mr D'Antuono's employment for his own purposes. The applicant submitted that Mr Howard was powerful enough to involve others in such a conspiracy.
However, whilst this central thrust of the applicant's case was always present, it needs to be said that the "conspiracy theory" of the applicant was somewhat malleable. It was not always a consistently stated theory. I accept that an applicant alleging conspiracy may be confronted with the practical difficulty of proving who was involved, especially if the conspiracy as well orchestrated. However, there is a difference between this and a "scattergun" approach, where everyone who may say something adverse to an applicant is, ipso facto, a co-conspirator.
The applicant's Summary of Facts, filed prior to trial, contained (on page 21) allegations that Mr Howard, Mr Thomson and others were vindictive and hostile to the applicant on a personal level "from the time they first met the applicant". It was also alleged that the respondent, through Mr Howard, showed vindictiveness and hostility in outbursts to the applicant in three incidents between November and December 1995, including the meeting at which Mr D'Antuono's employment was terminated.
At page 22 of the Summary of Facts, it was alleged that a union grievance notice against Mr Howard, dated 30 January 1995, "more likely than not . . . had the likely effect of raising in the mind of Paul Howard an atmosphere of negative and hostile feelings towards the applicant. This, in association with the record of the applicant as an active job representative, the likelihood of recurring trouble if the applicant continued in employment and continued to hold the office of job representative, and the probability of the respondent being of a mind to dismiss the applicant on any plausible ground, was very strong".
On page 14 of the Summary of Facts, the applicant submitted "on a minimum basis" the following persons were involved in the decision-making process of Mr Howard to dismiss the applicant. These people were :
1.Garry Colley
2.Wally Gibbens
3.Susan Maier
4.Geoffrey Miller
5.Colleen Claydon
6.Dr Sharon Cullen
7.James Thomson
8.Maria Van Hugten
9.Ian Burns
10.Pamela Billett
In addition to these 11 people (10 plus Mr Howard), in his evidence, Mr D'Antuono also made negative comments about Ms Wainwright, Mr Jones and Mr Lambourne, each of whom also gave evidence for the respondent.
In the applicant's opening, Mr Carija stated that, since Mr D'Antuono had been appointed as job representative for the ANF at Armadale Lodge on 20 June 1994, he had been subject to continuous victimisation "emanating from the various staffing echelons at Armadale Lodge, leading up to and including Mr Paul Howard". Mr Carija also submitted that "it will be alleged that a conspiracy of sorts was directed towards the applicant by divers staff at Armadale Lodge and that, to avoid further active involvement as job representative by the applicant, he was suspended and then dismissed, ostensibly, for misconduct".
The applicant's closing written submissions contained numerous criticisms of Mr Howard and the other witnesses of the respondent. For example, it was submitted that "a large number of the witnesses who appeared on behalf of the respondent showed some vindictiveness or spite towards the applicant. The applicant came to the only reasonable conclusion available to him at the time, that these people in senior nursing management, together with Mr Gibbens, were actuated by malice and illwill towards the applicant, hence the allegation of a 'conspiracy of sorts'. There was so much involvement by senior nursing staff (including by Colleen Claydon, who did not appear to give evidence) that the 'poisoned tree doctrine' applied; that is, the illwill grew until all those persons who came in contact with it were tainted by a feeling of hostility towards the applicant."
The applicant's closing written submissions were littered with criticisms of Mr Howard. For example, it was alleged that he was "desperate and determined" to have Mr D'Antuono removed; that he "put together as much adverse findings as possible" to the Nurses Board about Mr D'Antuono's behaviour; that he had "ulterior purposes"; that Mr Howard went to great lengths to discredit Mr D'Antuono; that Mr Howard was biased; that Mr Howard was guilty of male fides; that "Mr Griffin's testimony was contaminated and embellished to achieve Mr Howard's objective of removing the applicant from employment", and so on.
It was also specifically submitted at page 10 of the closing submissions that Mr Burns was hostile to the applicant.
When he gave evidence, Mr D'Antuono imputed bad faith to a number of people. When cross-examined, Mr D'Antuono confirmed that the 11 people referred to above, in the statement of facts, were involved in a conspiracy.
With respect to Mr Colley, he said that he had an improper motivation for making reports against Mr D'Antuono because he had a lot to gain through promotion and positive reinforcement by Mr Howard. Mr D'Antuono said the same with respect to Ms Maier and Mr Miller. He also put Mr Burns in the same category. With respect to Ms Van Hugten, he said that there was some personal animosity between herself and Mr D'Antuono. However, like the last three people mentioned, she was also "out to get loyalty to the boss at any expense, and to gain their own selfish interests ahead". With respect to each of these people, Mr D'Antuono said that there was "blind loyalty to the boss".
Regarding Dr Cullen's alleged involvement in the conspiracy, Mr D'Antuono said that "she obviously will get benefit [sic] the fact that she has helped the people she socialises with achieve a certain goal. Now that goal was to remove me from the work site. Full stop". I interpolate here that there was no evidence of Dr Cullen socialising with Mr Howard.
It was next suggested in cross-examination that Mr Thomson was in a separate category because he was Director of Nursing at Graylands. Mr D'Antuono replied that was true, but the community of mental health nurses was small, and they would be a phone call away. "They would offer each other advice, comfort; they would socialise." With respect to Mr Thomson giving evidence, Mr D'Antuono said, "he comes here because - to say negative things about me."
Mr D'Antuono was critical of Mr Gibbens being involved in investigations of him in 1995, having previously been involved in investigations concerning Mr D'Antuono's conduct in 1992.
Further, as will be detailed below when the specific incidents are discussed, Mr D'Antuono was also critical of Ms Wainwright, Mr Jones and Mr Lambourne.
Mr D'Antuono agreed with the suggestion that the allegations he was making against nurses were grave allegations and, if proved, would constitute highly unprofessional conduct. There is no doubt that this description is right.
In its closing submissions, the respondent said that the conspiracy theory was amorphous and evolved as the case for the applicant was presented, but was unsupported by the evidence. I agree with the first observation, and will need to determine the latter submission, as part of this decision.
In determining the application, the first place to commence is the consideration of the incident involving Mr Griffin. This is because this was the reason given for the termination of employment by Mr Howard, on behalf of the respondent.
THE KEN GRIFFIN INCIDENT
The incident involving Mr Griffin allegedly occurred on 13 November 1995. When he gave evidence, Mr Griffin was 74 years old. He was not then on any medication. In November 1995, he was a resident at Armadale Lodge. He was mainly there to be treated for depression. Whilst there was some suspicion, because of erratic behaviour that he may have some other mental difficulties, these were found to be without substance. In November 1995, he was taking prozac for his depression.
Mr Griffin said that on the date in question, Mr D'Antuono came to his room in the early morning and said it was time to get up. He promptly removed the bed clothes from his bed. Mr Griffin said that he was a bit embarrassed because, for the first time, he had been incontinent of urine. He said that Mr D'Antuono went away and then came back and grabbed Mr Griffin by the feet, swung him over the side of the bed, grabbed him by the shoulders, and stood him up on his feet.
Mr Griffin said he was a bit unsteady at the time and thought he was going to fall over, but did not. Mr D'Antuono then said to him, "Down to the bathroom" or words to that effect, and he marched Mr Griffin out and into the passageway, down to the bathroom, and pushed him in the back on the way. Mr Griffin said he thought this was quite unnecessary. There were two bathrooms, which were described as bathroom 1 and bathroom 2 in the evidence. Another nurse, Mr Zegulewski, was with a patient in bathroom 1. Mr D'Antuono and Mr Griffin went to bathroom 2. Mr D'Antuono told Mr Griffin to get undressed, which he did. Mr D'Antuono then told Mr Griffin to get under the shower. The water was cold. Mr D'Antuono had the shower handpiece and "shoved it" on Mr Griffin's head. Mr Griffin said that he said to Mr D'Antuono, "Hey, it's a bit bloody cold." The hot water was then turned on and the shower was too hot. Eventually, the shower was cool enough to get under, and Mr Griffin showered himself. Mr D'Antuono then left.
Mr Griffin said that Mr D'Antuono acted like he was the boss, and that was not a very nice attitude for a nurse to be adopting. He said either at that time or on an earlier occasion, Mr D'Antuono had referred to himself as "an attendant" or "a gaoler".
In his cross-examination, Mr Griffin conceded that his memory was not the best. However, his version of events did not change to any marked effect, during the course of his cross-examination. When cross-examined, he confirmed that when he was walked to the bathroom by Mr D'Antuono, he was pushed with Mr D'Antuono's hands on his shoulders from behind. Mr Griffin confirmed that the first water that came out of the shower was directed at his head and face. He confirmed that he then yelled, "What the bloody hell's going on?" He conceded, however, that he could not say whether Mr D'Antuono deliberately turned the hot water tap on without regard to the temperature of the water.
Mr Griffin said he did not recall Mr Colley being in the vicinity and he did not have any recollection of speaking to Mr Zegulewski. He said that Mr Zegulewski did not come into the second bathroom but was only by bathroom 1, showering a patient.
After his complaint about the matter, which will be detailed below, Mr Griffin was spoken to by a number of people, including Mr Gibbens. Mr Gibbens prepared a statement for Mr Griffin, which was signed on 5 December 1995. The contents of the statement and Mr Griffin's evidence are substantially the same. One exception was that the statement seemed to indicate that Mr Griffin had gone into bathroom 1 and then into bathroom 2. However, Mr Griffin said in his evidence that he realised that the statement was incorrect in this way (transcript 559) but the statement was "near enough" correct to be signed by him (transcript 566).
Mr Griffin said that he complained about the incident to Mr Miller. In his evidence, Mr Miller confirmed that he received a complaint from Mr Griffin on 17 November 1995, when he was on the afternoon shift; 3 pm to 11.45 pm. He said that Dr Cullen was about 2 metres away from himself and Mr Griffin when Mr Griffin first made the complaint to him. However, Dr Cullen, in her evidence, said that she had no recollection of this. Although Mr Miller did not detail the contents of the complaint to him at this point of his evidence, because of an objection, he said that he thought about the complaint overnight, thought they were serious allegations, and then spoke to Mr Pat McGill. Mr McGill was a nurse manager, level 3. Mr McGill must have conveyed the contents of the complaint to Mr Howard, because Mr Howard later telephoned Mr Miller about the matter. Mr Howard asked Mr Miller whether he was prepared to make a report, and Mr Miller decided he would.
The following day, 18 November 1995, Mr Miller again spoke to Mr Griffin and formally took down a report of what Mr Griffin told him. This document, referred to as "Report Form A", was filled out by Mr Miller and tendered as Exhibit 130.
The document described the incident as "Complaint made by Mr Kenneth Griffin (resident) against A D'Antuono, RMHN". It said that the location of the incident was in Banksia Wing at Armadale Lodge. Mr Miller's report included "that Mr Griffin had been manhandled, was bullied into getting out of bed, dragged out and pushed to the bathroom, showered with water that was too hot and too cold, made to feel as though he was a prisoner in an asylum, and did not attempt to explain things to him." The report included the quotation, "I know I was depressed, but I feel the treatment I received was unprofessional." Both Mr Miller and Mr Griffin said that the use of the word "unprofessional" was by Mr Griffin.
When cross-examined, Mr Miller said he thought Mr Griffin had been affronted by what he described to him. He thought Mr Griffin was in a fit state to give him the statement he did.
Mr Miller said he gave the report to Mr Colley on 19 November 1995. Mr Colley confirmed he received the report from Mr Miller on 19 November 1995. Mr Colley said he received the report at about 3 pm. He said he had also received, before Mr Miller's report, information from another nurse who was known as Mr Fred Lim, that Mr Griffin had made a complaint about Mr D'Antuono. Mr Colley then spoke to Mr Griffin and himself prepared a report, which was Exhibit 131. The report was signed by Mr Colley and dated 19 November 1995. This stated that an interview took place at Armadale Lodge with Mr Griffin for 35 minutes on Sunday, 19 November 1995. The substance of the complaint, as contained in Mr Colley's report, was almost the same as Mr Griffin's evidence and his earlier report to Mr Miller.
Mr Colley telephoned Mr Howard about the matter and gave him the report the next day, Monday, 20 November 1995. Mr Colley said he categorised the conduct described by Mr Griffin as serious.
Mr Colley was later advised by Ms Colleen Claydon, who was a nursing coordinator (Level 4), that is, between Mr Colley as a Level 3 and Mr Howard as a Level 5, that Mr Zegulewski had suggested that Mr Colley was present at the incident. This then "jogged" Mr Colley's memory of what he had observed on 13 November 1995.
Mr Colley said in evidence on that day whilst at a nursing station, he saw Mr Zegulewski, Mr D'Antuono and Mr Griffin standing by one of the bathrooms. He heard Mr Zegulewski say they had asked Mr Griffin politely to have a shower. He said that they were all located outside bathroom 2. Mr Zegulewski then left Mr D'Antuono and Mr Griffin, who went into bathroom 2. Mr Zegulewski then came to join Mr Colley at the nursing station. He said he had a discussion with Mr Zegulewski, when he reminded him that although it was necessary for patients to shower when they had been incontinent of urine, one ought to be careful not to assault such a patient. Mr Colley said that he remembered the occasion as it was the first time that Mr Griffin had been incontinent of urine.
Mr Colley wrote a report about this aspect of the matter on 26 November 1995. The report noted that Mr Zegulewski had told Mr Colley that Mr Griffin was resisting attempts to have a shower and that Mr Zegulewski said there was a duty of care not to leave him in the bed. Mr Colley noted in the report that he said he appreciated the duty of care but Mr Griffin "should not be assaulted, to carry this out". The report said, "I repeated this in front of Mr D'Antuono, who joined us some minutes later."
When cross-examined, Mr Colley confirmed that he thought that the incident he observed, involving Mr Griffin, Mr Zegulewski and Mr D'Antuono seemed normal, with no hostility involved. He said that Mr Zegulewski was with Mr Griffin and Mr D'Antuono for about 30 seconds before Mr Zegulewski joined him. He said that there was one minute, possibly longer, between when Mr Zegulewski left Mr D'Antuono and Mr Griffin, and when Mr D'Antuono joined them, as well.
Both Mr Miller and Mr Colley were extensively cross-examined. In the course of their cross-examination, attempts were made to discredit them. In my opinion, such attempts failed. When it was put to Mr Colley that he was "really a grave digger, trying to bring up as much dirt and muck - to throw to Mr D'Antuono", Mr Colley said he had nothing against Mr D'Antuono at all. In fact, he said, he quite liked him. This was something Mr Colley repeated again in his evidence.
I thought Mr Colley was a fair and articulate witness. His answers were considered and, in my opinion, not the product of a man actuated by bad faith or improper motive. The way in which he gave his answers, in my opinion, had a genuineness about them. He remained calm and clear, despite the suggestions that were made about his evidence in cross-examination.
I was also impressed by Mr Miller when he gave evidence. He came across as a nurse of integrity and concern about Mr Griffin. He also presented as a fair-minded person; for example, he said that whilst he had negative views of Mr D'Antuono, he had taken some years to form these views. He conceded that Mr D'Antuono had done a good job as the ANF job representative. When asked in cross-examination about his personal feelings towards Mr D'Antuono, he said, "He's a fool." He elaborated, when pressed, that he thought that Mr D'Antuono had lots of chances while working at Armadale Lodge but intimated that he had not taken advantage of them. Mr Miller said that his view of Mr D'Antuono had taken some years to form, and he had tried to give him a fair go. Mr Miller denied that he involved himself in a meeting or discussion with Mr Griffin to put together a statement, and that this was his opportunity to get rid of Mr D'Antuono. I accept Mr Miller's denial of this.
Mr Howard said that he first knew of an alleged incident involving Mr D'Antuono and Mr Griffin, when he received a telephone call from Mr McGill, saying that Mr Miller had made a report to him about an incident. He then confirmed Mr Miller's evidence that he spoke to Mr Miller and asked whether he was prepared to make a report. Mr Miller agreed that he would. Mr Howard later received a report from Mr Miller, via Ms Claydon. Mr Howard received this report on Monday, 20 November 1995.
Mr Howard's response was that this was a serious allegation against a professional nurse, which needed to be looked into. Mr Howard said that he thought that, given the involvement of a patient and the vulnerability of patients, Mr D'Antuono should be suspended, pending an investigation of the incident. Mr Howard then notified Ms Claydon of this course of action and asked her to notify Mr D'Antuono of that. Mr Howard then wrote a letter, setting out the suspension, which was couriered to Mr D'Antuono that day. Mr D'Antuono was suspended on full pay.
The letter, which was tendered as Exhibit 61, said that Mr D'Antuono would be suspended forthwith, pending investigations by Mr Gibbens. The letter said that "I will then determine what action, if any, should be taken". I will set out the circumstances of this investigation later in the judgment.
I turn now to the evidence given by Mr D'Antuono and Mr Zegulewski about the incident on 13 November 1995.
Mr D'Antuono said that he and Mr Zegulewski went into Mr Griffin's room at about 7.30 that morning. He said that he saw Mr Griffin in bed and could smell urine. He said that Mr Zegulewski requested him to go to the bathroom and shower because he was incontinent. Mr Griffin refused to do that. He wanted to stay in bed and did not want to cooperate. Mr Zegulewski then told him that he would leave him for 15 minutes to reconsider his decision and if he did not cooperate, they would have to assist him to the bathroom. They came back 15 minutes later and again Mr Griffin did not cooperate. Mr Zegulewski then told Mr Griffin that he and Mr D'Antuono were going to assist him to the bathroom. Mr D'Antuono said that he and Mr Zegulewski got Mr Griffin out of bed and each had one arm of Mr Griffin. They were then walking him to the bathroom, but Mr Griffin became aggressive towards them, verbally and physically. There was then a conversation at the bathroom, where Mr Zegulewski indicated to Mr Griffin that either he could shower himself or the nurses would do it. Mr D'Antuono said that Mr Zegulewski spoke to Mr Colley about the problem and that Mr Colley had said that the relatives should be notified of the difficulties with Mr Griffin. Mr D'Antuono then said that Mr Colley left the ward and "left us to our own devices". In his evidence, he criticised Mr Colley for not offering any physical assistance, nor counselling Mr Griffin.
After Mr Colley left the ward, Mr D'Antuono said that he and Mr Zegulewski approached Mr Griffin again, and Mr Zegulewski spoke to Mr Griffin and told him the "same story" - that either he should shower himself, or they would assist him. He said that Mr Zegulewski got some medication for Mr Griffin, anti-depressant medication, and was away for about a minute and a half. Mr D'Antuono said that he was watching Mr Griffin outside the shower in case he slipped on the wet floor, because someone had used the shower before him. When Mr Zegulewski came back, he "reiterated the same story to Mr Griffin" and "then Mr Griffin again lashed out verbally and physically aggressively towards both of us and we restrained him because there was a chance he would have slipped in the shower, so we moved him from the outside into the shower area and the floor was obviously wet, and so we didn't want to let the man fall. We had to restrain him again because it is - verbal abuse, and he's threatening, and he's punching us again". Mr D'Antuono said that Mr Zegulewski was counselling Mr Griffin again on this occasion. Mr Griffin then had a shower and "his aggression went away, and he cooperated, and he came out and there was no further incident".
Mr D'Antuono said that he was shocked when he found out that he had been suspended for that incident.
A full version of Mr D'Antuono's evidence of this incident was not, at first, put to Mr Griffin, in cross-examination by Mr Carija. When this ultimately occurred, after prompting by me, Mr Griffin rejected the suggestion that he had been aggressive. When pressed, Mr Griffin said that he thought Mr D'Antuono had been "definitely lying", if he said that the incident as described by him had not taken place. He denied resisting Mr D'Antuono in the bathroom or at any stage. Although Mr Griffin agreed that he was "hostile", when he was first approached in bed, he denied any physical aggression. Mr Carija put to Mr Griffin that "your manner of aggression towards Mr D'Antuono and Mr Zegulewski consisted of throwing punches at them. What do you say to that?" Mr Griffin's reply was that "Oh, I never threw a punch in my life". The way in which this answer was given had a ring of truth about it. I should also comment that Mr Griffin is a man of small stature who gave his evidence in a clear, non-demonstrative and non-aggressive fashion.
In his evidence, Mr Zegulewski said that on 13 November 1995, Mr D'Antuono had gone to Mr Griffin's room first. Mr D'Antuono called for Mr Zegulewski's assistance because Mr Griffin had been incontinent of urine. He said that he asked Mr Griffin whether he would like to get out of bed and Mr Griffin said he was not going to, and was negative about it. Mr Zegulewski said that he spoke to Mr Griffin for a minute or two, and said that he needed to attend to his personal hygiene and gave him about 15 to 20 minutes before they would come back. In that time, they attended to other patients and then returned to Mr Griffin. Mr Griffin had not got up and was asked again about the matter. He still refused to get up and "became very negative" and then, under Mr Zegulewski's instructions, Mr D'Antuono and Mr Zegulewski assisted Mr Griffin to the bathroom. Mr Griffin was left at the bathroom whilst they attended to other duties. It was at that point, to the best of Mr Zegulewski's recollection, that Mr Colley came into the room and asked if there were any problems. He agreed that there was a discussion with Mr Colley about the duty of care to shower patients, but he did not recall Mr Colley using the word "assault". He said that he went back to Mr Griffin and gave him some medication. He said that Mr Griffin "became a bit hostile at that point, brushing me aside with the medication. I picked it up, he took it, we closed the bathroom door, I said to him, as I recall, breakfast would be around shortly if he would like to shower himself and be ready for breakfast, and that was about it. The door was closed and he showered himself". Mr Zegulewski said that was the end of the matter. Mr Zegulewski said that there was nothing unusual about the incident (399).
It should be noted that Mr Zegulewski's account of what happened with Mr Griffin was different from the evidence of Mr D'Antuono. As stated, Mr D'Antuono said that the physical aggressiveness of Mr Griffin went to the extent of throwing punches at Mr D'Antuono and Mr Zegulewski. Mr Zegulewski did not suggest that this occurred in his evidence.
I did not regard Mr Zegulewski as a particularly impressive witness. I think he was very careful in his cross-examination, to try to avoid any suggestion that he was not telling the truth, to the extent that he answered that he did not recall something on a number of occasions when I would have expected recollection. I was not convinced that his lack of recollection was genuine. He presented as evasive and less than frank when cross-examined. I think his evidence was carefully given, so as to avoid a direct conflict with, for example, Mr Colley, on some issues. His version of the Ken Griffin incident was not recorded in Mr Griffin's progress patient notes, which should have occurred if there was an instance of verbal and physical aggression by a patient. There are some other unsatisfactory aspects of Mr Zegulewski's evidence which will be mentioned later.
As for Mr D'Antuono's evidence of the Ken Griffin incident, for reasons which will be set out later, I did not regard the testimony of Mr D'Antuono as impressive generally. With respect to this incident, I do not think that Mr D'Antuono's evidence can be accepted, for the following reasons:
1.In so far as Mr D'Antuono's evidence was in conflict with that of Mr Griffin, concerning the substance of the incident, I prefer the evidence of Mr Griffin. In my opinion, Mr Griffin did his best to accurately recall the incident. He was able to describe it lucidly and in detail. In his evidence, he did not seem aggressive, and gave considered answers. He acknowledged his own shortcomings, including his imperfect memory and accepted that he did not recall all events; for example, the suggestion that Mr Zegulewski came into his room that morning.
He was, however, in my opinion, a patently honest witness who was, with substantial accuracy, recalling an incident which had occurred to him when at Armadale Lodge. I accept the submission of the respondent that "Mr Ken Griffin was a witness of obvious truth. He gave his evidence in a clear, consistent, and readily understandable fashion. His evidence was consistent, not only with the content of his statement (Exhibit 114) but also with reports of Geoff Miller (Exhibit 130) and Garry Colley (Exhibit 131 and 138). Moreover, Mr Griffin was unshaken in his testimony by cross-examination".
2.Mr D'Antuono's evidence about Mr Griffin's suggested aggressiveness was inconsistent with even that of Mr Zegulewski, who did not suggest that Mr Griffin threw any punches at him or Mr D'Antuono.
3.In a written report by Mr D'Antuono to Mr Howard about the Griffin incident dated 11 December 1995, although it was suggested that Mr Griffin became aggressive, there was no suggestion that Mr Griffin had thrown punches. I regard the latter allegation as a gross exaggeration made by Mr D'Antuono in his evidence, to try to justify the physical conduct by himself against Mr Griffin. I do not accept that Mr Griffin threw any punches.
4.Mr D'Antuono's version of events was not recorded in Mr Griffin's progress patient notes.
In summary, I accept that there was an incident largely as described by Mr Griffin. There are a couple of qualifications to this, which I attribute to Mr Griffin's admittedly imperfect memory. Firstly, I think that Mr Zegulewski and Mr D'Antuono may have both attended upon Mr Griffin in his bedroom, but do not have to finally determine this. I am satisfied that, if Mr Zegulewski was there, Mr Griffin did not recall this detail because it was unimportant to him. I am satisfied that Mr D'Antuono moved Mr Griffin to the shower in the way in which Mr Griffin described. I am then satisfied that Mr Zegulewski was also involved with trying to get Mr Griffin to shower, in the manner observed by Mr Colley. Finally, I am satisfied that Mr Zegulewski then went to discuss matters with Mr Colley, and Mr Griffin and Mr D'Antuono went into bathroom 2. I am then satisfied that the incident in bathroom 2 occurred, as described by Mr Griffin. The effect of my findings with respect to the conduct of Mr D'Antuono towards Mr Griffin will be set out later in this judgment.
The applicant submitted in the closing written submissions that "Mr Griffin was affected by medications, including prozac, which recent controversy suggests that patients with this medication may become aggressive. It is submitted that Mr Griffin was aggressive on the relevant occasion or at the least certainly more prone to hostility".
I do not accept this submission. There was no evidence that because he was taking prozac, Mr Griffin was prone to hostility. There was no such record in his progress notes and no mention of this by Mr Miller, Mr Colley or Dr Cullen in their evidence.
Dr Cullen said that she had not looked into the question of prozac making people more aggressive (transcript 698). The applicant tendered an article published in the January 1992 edition of Drug and Therapeutics Bulletin, entitled "Fluoxetine, Suicide and Aggression". Fluoxetine is another name for prozac. The article said, "Fluoxetine has been banned in the United States for increasing suicidal ideation and causing violent behaviour in depressed patients. There is no convincing evidence to support this view, but whether the drug increases hostility and aggression remains an open question."
Mr Howard gave evidence about prozac to the effect that "there has been a suggestion in some of the literature that people on prozac can become aggressive and there are some studies which state that this does occur. It occurs with concommitant use in some major tranquillisers, they say . . . the nature of this aggression, as I understand it, is that the person becomes in a heightened state of stimulation . . . they become edgy, niggly . . . verbally aggressive and agitated . . . there is, equally, a body of thought - perhaps not equally, but there is a body of thought that says these things are due to something else, and not the prozac at all, so it depends where you fall, on that". This reflected Mr Howard's knowledge, based on attending seminars and reading relevant literature.
There was no other evidence relevant to this issue. There was no substance to the applicant's submission on this point.
THE MABEL FORBES INCIDENT
As set out above, this alleged incident took place on Sunday, 19 November 1995. The complaint against Mr D'Antuono was made by Ms Susan Maier. Ms Maier is a mental health enrolled nurse who works at Armadale Lodge. She has worked there for one year, and has been working as a mental health nurse for about 14 years in total. She has had breaks in her employment, due to having a child.
Ms Maier said that on 19 November 1995 at about 5.40 - 5.45 pm, she saw Mrs Forbes, who was a patient at the lodge. Mrs Forbes told her something, and then Mrs Forbes went to a bathroom. Ms Maier saw Mr D'Antuono in the wing, several minutes later. Ms Maier was then in bathroom 1, attending to another resident. Mrs Forbes was then in what was described as bathroom 2.
Ms Maier said that when she saw Mr D'Antuono, she told him that Mrs Forbes was in the other bathroom and that she would be out in a minute. She said that she did not recall Mr D'Antuono making any response to that.
Ms Maier said Mr D'Antuono moved away and then she heard the other bathroom door open and stay open for a few seconds and then close. After the door closed, Mr D'Antuono came back and stood outside the bathroom in about the same position as previously. Ms Maier then saw Mr D'Antuono outside the bathroom where she was. Ms Maier said to Mr D'Antuono that he had no need to go into the other bathroom. Ms Maier said that Mr D'Antuono said in reply that he was a registered nurse and had every right to go into the bathroom. Ms Maier replied that she had more of a right to go into the bathroom as she was a female. Ms Maier said that later in the evening, she went to Mrs Forbes and apologised for Mr D'Antuono going into the bathroom. She said that Mrs Forbes did not show any emotion or expression at that time.
Ms Maier said that she wrote a document about what had happened on 19 November 1995. She wrote this maybe two days after the event. The document described the incident that occurred consistently with the evidence given by Ms Maier. At the end of the document, Ms Maier wrote that, as she understood it, Mrs Forbes preferred female staff to attend to her as she was capable of showering independently.
Ms Maier said that she spoke to a Mr Mark Todd, a registered mental health nurse, before she wrote the document. She also said that she was asked to write the document by Ms Claydon. She said that at the time she wrote the handwritten document, she did not know that Mr D'Antuono had been suspended from work at Armadale Lodge.
In the course of the investigation of this incident by Mr Gibbens, Ms Maier made a statement to him and signed it. The statement was dated 5 December 1995 and witnessed by Mr Gibbens. This statement was consistent with the earlier statement and Ms Maier's evidence, except for one matter. In the statement, Ms Maier said that Mr D'Antuono "partially entered by standing in the doorway, holding the door open [of the bathroom]". This was different from Ms Maier's evidence and her earlier statement, in that it intimated that she had seen Mr D'Antuono enter the bathroom. In her evidence, she said that she had only heard the bathroom door open and then close, and then spoke to Mr D'Antuono about the matter after that. In her evidence in-chief, Ms Maier readily accepted the error in the statement.
Ms Maier said that she was aware that Mr D'Antuono was the ANF job representative at Armadale Lodge but that did not affect her views or observations in any way of what occurred.
In cross-examination, Ms Maier said that she would have preferred not to give evidence. However, she did not feel pressured into coming to Court, nor feel uncomfortable giving evidence before Mr Howard, who was present in Court for part of her evidence. She said that nobody had offered her an inducement to give evidence. She said that no person helped her in preparing her handwritten report.
She agreed with the proposition that both male and female nurses can shower patients at Armadale Lodge. She qualified this by saying that if there is a request by a resident to have a female shower them, then usually a female would shower them but on occasions this is a bit "impossible and males do have to shower females". More importantly, however, she said that "in Mabel's [Mrs Forbes'] case, she could do it independently. She didn't need anyone to give her a hand."
Ms Maier said that she was not aware of any feelings of hostility or illwill towards Mr D'Antuono at Armadale Lodge.
Initially, Mr Carija did not put fully to Ms Maier Mr D'Antuono's evidence about this incident. However, after I provided Mr Carija with page 136 of the transcript, he put Mr D'Antuono's version of events to her.
Mr D'Antuono said that on 19 November 1995, he was rostered on afternoon shift with Ms Maier. He said that he came into the ward at about 6.00 to 6.15 pm and Ms Maier was in the process of showering a patient in a bathroom. Mr D'Antuono said he walked in and asked whether Mrs Forbes was going to have a shower. He said that Ms Maier told him that she was going to have a shower, and Mr D'Antuono then proceeded to the second bathroom to see if it was empty or not, while Ms Maier was still in the first bathroom. Mr D'Antuono said that he went to the second bathroom and knocked on the door and asked if there was anybody there and he heard Mrs Forbes' voice, and she said it was her. Ms Maier had earlier said in her evidence that she did not hear the knock on the door but conceded that it was possible that Mr D'Antuono could have knocked and that she did not hear this. She said, though, that she did not hear Mrs Forbes' voice. Ms Maier said that she did not hear Mr D'Antuono say anything. Mr D'Antuono said he then desisted from entering. He said that he apologised, went back to approach Ms Maier and said to her that there may have been some misunderstanding because he thought Mrs Forbes had not gone to the bathroom.
In cross-examination, Ms Maier said that this did not happen. It was put to her that there was a misunderstanding. Ms Maier said there was no misunderstanding, what was put to her simply did not happen. Mr D'Antuono alleged that Ms Maier then said to him that she would have a chat with Mrs Forbes to allay any fears that Mr D'Antuono had been trying to upset her while she was showering. Ms Maier said that this did not occur but she did go to talk to Mrs Forbes later. During cross-examination, she said that she did this to apologise to Mrs Forbes, for allowing Mr D'Antuono to enter her bathroom, when Mrs Forbes had asked her not to allow this to occur. Mr D'Antuono said in his evidence that Ms Maier spoke to him after she had spoken again to Mrs Forbes. Ms Maier said that she did not remember whether she spoke to Mr D'Antuono again after speaking to Mrs Forbes.
Mr D'Antuono said that he was surprised about "the report" because Ms Maier that evening "offered him" her meal to consume with her. He said that he was
"quite surprised that she would have reported me for such an incident which, on the surface, to me - I was quite shocked to see Ms Maier reporting me". In cross-examination, Ms Maier said that Mr D'Antuono did not eat a meal with her, and she did not offer Mr D'Antuono her meal.Mrs Forbes did not give evidence at the trial.
Where there was a conflict between the evidence between Ms Maier and Mr D'Antuono, I prefer the evidence of Ms Maier. Whilst it was clear that Ms Maier was not entirely comfortable in giving evidence and some of her answers were a bit vague, I think she was doing her best to tell the truth and, in general, her evidence was reliable. I think her account of the incident that she described was credible and carefully given.
In contrast, I was not impressed overall with the evidence that Mr D'Antuono gave. The full extent of the reasons for this will be set out later in this judgment.
I therefore find that Mr Howard was correct to have found the "Mabel Forbes incident" to have occurred as Ms Maier described in her evidence. The effect of this finding will be set out later in these reasons.
THE MARY ELLIOT INCIDENT
There was a further incident which had been investigated prior to Mr D'Antuono's termination by Mr Howard in December 1995. This involved a resident called Ms Mary Elliot. However, this was not something which Mr Howard took into account in deciding to terminate Mr D'Antuono's employment. It did, however, form the basis of a complaint by Mr Howard to the Nurses Board of Western Australia, along with the incidents involving Mr Griffin and Mrs Forbes. In the closing written submissions, the applicant was highly critical of Mr Howard for this action, and submitted it showed that he was guilty of bad faith. I do not accept this criticism of Mr Howard. There is no reason why he could not refer such an incident for the determination of the Nurses Board, even though it did not form part of his decision-making process in the termination of employment of Mr D'Antuono.
THE INVESTIGATION OF THE KEN GRIFFIN INCIDENT
I set out earlier that on 20 November 1995, Mr Howard received a formal complaint about the Ken Griffin incident and suspended Mr D'Antuono from duties. He then asked Mr Gibbens to conduct an investigation into the Ken Griffin incident. At the time when he determined suspension to be the proper course of action, Mr Howard telephoned the Health Department and spoke to Ms Maxine Kaemph, the Acting Manager of Industrial Relations, to make sure he had acted correctly, in procedural terms.
In his evidence, Mr Howard referred to a document headed "Employment Practices, Disciplinary and Termination Procedures" which was taken from the Health Department's Industrial Relations Manual. Mr Howard said the manual was meant to provide guidance to anybody embarking upon disciplinary action. The document included an explanation of the principles of natural justice, the reinstatement provisions of the WA Industrial Relations Act, the need for consistency and even-handedness, disciplinary procedures, minor offences and serious offences, instant dismissal for misconduct, staff care and counselling, and examples. Interestingly, the manual does not refer to the Industrial Relations Act 1988 (C'th).
On 20 November 1995, Mr Howard notified Mr Gibbens of the allegations involving Mr Griffin. Mr Howard told Mr Gibbens briefly that an incident had been reported and that Ms Claydon had all the relevant information. Mr Gibbens was instructed to obtain the details and commence an investigation.
Prior to proceeding further with the matter, Mr Howard spoke to Mr Griffin. He did so in the presence of Mr Colley. Mr Howard was anxious to gain an impression of Mr Griffin's mental acuity and make a Mental Status Examination. Mr Howard said that he felt perfectly equipped to make a Mental Status Examination of Mr Griffin. In fact, Mr Howard pointed to the standards of practice for mental health nurses in Australia as set down by the Australian and New Zealand College of Mental Health Nurses and adopted by all Health Departments in Australia in 1995, which sets out that one of the skills of a registered mental health nurse must be the ability to conduct Mental Status Examinations.
During the course of the conversation with Mr Griffin, Mr Howard did not discuss in detail the substance of his allegations but wanted to discuss general issues to make an assessment of Mr Griffin's state of health. Mr Howard made a note of this interview. The note reflected that Mr Griffin was lucid, oriented in time, place and person, and could converse freely on a range of conversational subjects. The document reported that Mr Griffin's rate of speech was normal, and no evidence of dementia could be identified. As a result of the interview, Mr Howard was satisfied that Mr Griffin was capable of providing consistent and accurate information, should be given the opportunity to proceed with any reports he wished to make, and proceeding with the reports would not be harmful to Mr Griffin's mental state or interfere with his clinical progress.
Mr Gibbens is a security agent on contract with the Health Department of Western Australia. He has been on contract to the Health Department for 21 years. He is involved with all matters pertaining to security within the department, and carried out at their request various internal investigations. He is licensed under the Security Agents Act of Western Australia, and the Inquiry Agents Act of Western Australia. Prior to being a security agent, he was a police officer. He was a police officer for seven years. He was then attached to the Australian Staffing Assistants Group, where he trained police officers from overseas developing countries. This was a Federal Government appointment.
Mr Gibbens said that after he spoke to Mr Howard about conducting an investigation regarding Mr D'Antuono, in November 1995, he received information about the allegation from Ms Claydon. She gave him copies of incident reports, and reports made by staff members. He received the incident report signed by Mr Miller, and the confidential report of Mr Colley, concerning Mr Griffin.
During the course of his inquiry, he became aware of an allegation involving Mrs Forbes, and took the three page statement from Ms Maier, referred to earlier. Mr Gibbens did not speak to Mrs Forbes about the allegation made by Ms Maier because Mrs Forbes was not well enough for him to do so.
With respect to the Ken Griffin incident, Mr Gibbens said that he spoke to Mr Griffin, and interviewed him in the presence of Ms Claydon. This was on 21 November 1995. He did not at that stage note what Mr Griffin said, but interviewed him again in the presence of his primary carer. He then recorded what Mr Griffin told him and committed it to a statement.
Mr Gibbens also spoke to Mr Zegulewski on 21 November 1995. He advised Mr Zegulewski that Mr Griffin had made allegations concerning Mr D'Antuono's behaviour and asked him "if he was on" on the day in question. He said Mr Zegulewski said he was. Mr Gibbens asked him if he noticed anything of an unusual nature whilst he was working that involved Mr D'Antuono and Mr Griffin and he said that he had not noticed anything unusual, but that, in itself, was not unusual as he was working with other patients and not necessarily with either of the relevant persons. Mr Gibbens then began to discuss the fact that Mr Griffin had indicated that Mr Zegulewski was present when certain incidents took place, and Mr Zegulewski then said that he thought he needed legal representation before he spoke to Mr Gibbens about the matter. Mr Gibbens then terminated the interview. Mr Gibbens later received a report from Mr Zegulewski about the incident, albeit he said he had not asked him to provide such a report. He was handed the report by Ms Claydon. This document was a report dated 21 November 1995 and handwritten by Mr Zegulewski. This document was consistent with the evidence that Mr Zegulewski gave about the incident, but was not consistent with the brief answers that Mr Zegulewski gave to Mr Gibbens, as set out above.
Mr Gibbens also received from Ms Claydon a document signed by Dr Cullen. This said that Dr Cullen considered Mr Griffin to be able to give evidence regarding any matters in which he was involved, and that the statements made "would be accurate". The document said there was no evidence of dementia on admission and a Mini-Mental Status Examination scored 29½ out of 30, indicating no signs of memory difficulties of any type. In her evidence, Dr Cullen confirmed that, although she did not herself perform the Mini-Mental Status Examination, it was done by a registered mental health nurse and she had no difficulty in relying on the test.
Mr Gibbens said he asked Mr D'Antuono to speak to him concerning the Ken Griffin and Mabel Forbes incidents, but he declined to do so.
Mr Gibbens prepared a four-page report for Mr Howard, dated 5 December 1995. In the report, Mr Gibbens first considered the complaint by Mr Griffin. He detailed the history of the complaint and made the observation that there was no corroborating evidence to support Mr Griffin's allegations, but the fact that he made an early complaint and had been quite consistent should be taken into consideration.
Mr Gibbens' conclusion on this matter was that there was no evidence that would indicate that a criminal assault had taken place, and "any action taken within the limits of the Criminal Code could not be supported". However, he said the situation with respect to Mr D'Antuono's professional conduct was another matter and, should Mr Griffin's version of events be accepted without corroboration, Mr D'Antuono's alleged behaviour towards Mr Griffin could be considered inappropriate.
With respect to the complaint by Ms Maier, he said there was again no evidence of unlawful action on the part of Mr D'Antuono, although if the uncorroborated evidence of Ms Maier was accepted, bearing in mind that she did bring the matter to the attention of senior nursing management at an early opportunity, Mr D'Antuono's alleged actions may, subject to some explanation, be considered inappropriate.
The report also considered the incident involving Ms Elliot.
Attached to the report was the statement of Mr Griffin, the report by Mr Colley, a summary of the interview with Mr Zegulewski, the statement by Ms Maier, and a report by Ms Claydon. The latter was not tendered, given Ms Clayden did not give evidence.
Mr Howard confirmed that he received Mr Gibbon's report late on 5 December 1995.
Mr D'Antuono had been sent the reports of Mr Griffin and Ms Maier, the statement of Mr Griffin and Ms Maier, the report of Mr Miller and the report of Mr Colley, and was asked to provide a written response to the allegations by close of business on Monday, 11 December 1995.
On 8 December 1995, Mr Howard prepared a summary regarding Mr D'Antuono which covered his history, including as a student mental health nurse, registered mental health nurse at Graylands, and other incidents, some of which are included in the lists set out earlier.
Mr Howard received from Mr D'Antuono a letter about the November 1995 allegations on either late afternoon or early evening of Monday, 11 December 1995. The document was sent by facsimile to Mr Howard from Mr Dzieciol.
In his evidence, Mr Dzieciol said he received a draft response from Mr D'Antuono which he "enhanced" to form the document that was sent to Mr Howard. He said that his role was "basically trying to enhance the draft response that Mr D'Antuono had provided to me, and to try and have a document that reflected his response, rather than my understanding of it".
This document detailed the incidents regarding Mr Griffin and Mrs
Forbes. It set out in detail Mr D'Antuono's denial of the allegations. The document concluded that Mr D'Antuono had had 11½ years' experience in mental health nursing, including 8½ years as a registered mental health nurse. The document said that at all times he sought to act in a professional manner and in the best interests of patients. He believed that he acted in such a manner in relation to Mr Griffin and Mrs Forbes.Earlier, Mr D'Antuono had been requested to attend a meeting with Mr Howard and Ms Claydon on 12 December 1995. Mr D'Antuono attended the meeting with Mr Dzieciol as his representative.
Prior to the meeting, Mr Howard prepared for himself a list of items that he wished to cover. This included the reports that Mr Howard had received, the fact that he considered that Mr Zegulewski gave contradictory reports between his brief oral exchange with Mr Gibbens and his written report; that Mr Griffin had given a consistent account; that Mr Howard had to determine whether the allegations were substantiated, and determine this issue on the merits. The notes included Mr Howard's need to consider the integrity of Mr Griffin and Ms Maier and, on the contrary, mentioned that Mr D'Antuono had not always been truthful in the past. Mr Howard's note referred to Mr D'Antuono's application for employment to Armadale Lodge, an unfair dismissal claim made by Mr D'Antuono following his termination of employment from Graylands Hospital in 1988, the question of counselling by Mr Burns, and his contradiction in 1992 of statements made by Mr Gibbens. The note recorded that if the complaints were not substantiated, then Mr D'Antuono would be "OK". However, if they were, Mr Howard would have to take into account his record in determining the appropriate penalty. The notes said that there were a range of penalties from a reprimand to dismissal. The note indicated that he was going to inform Mr D'Antuono that he could be dismissed. The note concluded with a question mark against the following, "make decision now or reconsider all matters or any new points required, decide and tell".
Each of Mr Howard, Mr D'Antuono and Mr Dzieciol gave evidence about the meeting on 12 December 1995. Mr Howard said that at the meeting, he told Mr D'Antuono that he did not place much weight on the second report that he had received from Mr Zegulewski. This was because, he said, it became evident to him when he received Mr D'Antuono's report "that in some way and in large measure, these reports were copies of each other and it appeared to me that that didn't hold a lot of water; it was somewhat of a put up job in my mind, and comparing that with the statement made to Mr Gibbens the day before, it appeared to me that the statement made to Mr Gibbens would have been Mr Zegulewski's honest opinion of what he was asked". Mr Howard said that he had with him a copy of Mr Zegulewski's statement on which he had marked in blue those parts which were almost identical to the report of Mr D'Antuono. That document was tendered as Exhibit 133A. This graphically illustrated Mr Howard's point. There was also documentary evidence of a telephone conversation of 1 hour 50 minutes between the Banksia wing nursing station telephone number and Mr D'Antuono's telephone number on 23 November 1995, commencing at 8.58 pm. This is strongly suggestive of a lengthy telephone conversation between Mr D'Antuono and Mr Mr Zegulewski (although neither admitted such a conversation) to get their stories consistent. Mr D'Antuono suggested a number of other people from Mr Armadale Lodge who could have called him at that time for the length of time in question, but none were called to give evidence to substantiate this.
Mr Howard said that Mr Dzieciol was of the opinion that the second statement of Mr Zegulewski should be the one taken into account.
Mr Howard said that during the course of discussions about the Ken Griffin and Mabel Forbes incidents, Mr D'Antuono suggested that maybe the Ken Griffin incident had taken place on a different day with a different person, and Mr Griffin was perhaps mistaking somebody else for Mr D'Antuono; Mr Dzieciol suggested that quite a long time had elapsed before Mr Griffin made his report and maybe that was a matter for concern; and also raised by Mr D'Antuono were certain comments that he said had been made by Ms Maier to him.
At the meeting, Mr Howard followed his notes and referred to the earlier incidents regarding Mr D'Antuono's alleged untruthfulness. He read to Mr D'Antuono the summary of past incidents which he had prepared on 8 December 1995.
Mr Howard told Mr D'Antuono of the range of penalties which could be imposed. He also indicated that with respect to the Mary Elliot allegation, this was not going to be taken into account, given that she had accepted an apology that had been tendered by Mr D'Antuono to her.
At the end of the meeting, Mr Howard indicated that he was going to consider the matters which were raised which needed to be followed up and he would then reach a decision as soon as he could and let Mr D'Antuono know what was happening.
In his evidence, Mr Dzieciol said that the meeting lasted about two hours and Mr Howard did a lot of the talking during that time. He said that Mr Howard focussed on the similarity between the words and phrases used in Mr D'Antuono's response and those in Mr Zegulewski's response. Mr Howard said that there was a hint of collusion in terms of the preparation of the answers, according to Mr Dzieciol. Mr Dzieciol said that Mr Howard also spent a lot of time going through matters of Mr D'Antuono's employment history.
Mr Dzieciol said that his impression was that Mr Howard was going to some lengths to paint a picture of Mr D'Antuono as being a person who was not credible.
Mr Dzieciol said that in his mind he had no doubt about what the outcome of Mr Howard's determination of the matter would be termination, and he spoke to Mr D'Antuono after the meeting and told him that.
Mr D'Antuono said in evidence that he felt that Mr Howard had already made up his mind "so he didn't really push him further because he knew we knew that he wasn't fairminded and we said 'we're not going to waste our time with this sort of behaviour'". Mr D'Antuono agreed with Mr Dzieciol that the termination of his employment was likely, given what had transpired at the meeting.
After the meeting on 12 December 1995, Mr Howard made further inquiries about matters that were raised during the meeting. On 14 December 1995, Mr Howard noted that he had discussed with Ms Maier an issue raised at the meeting. This included whether she apologised to Mr D'Antuono, the conversation with Mrs Forbes after the incident, and a conversation with Mr D'Antuono after that. Mr Howard noted that Ms Maier told him that she did not apologise to Mr D'Antuono, her conversation with Mrs Forbes was of her own volition, it took place in Mrs Forbes' room and Mr D'Antuono was not present; and she did not recall telling Mr D'Antuono about the conversation. An allegation by Mr D'Antuono that Ms Maier made an allegation to try and injure Mr D'Antuono's reputation was rejected by Ms Maier and noted by Mr Howard.
Mr Howard made another note dated 14 December 1995, concerning further matters for inquiry regarding the Ken Griffin incident. These involved three points raised at the meeting, being :
1.Whether the events described by Mr Griffin occurred but at a different time with a different staff member than Mr D'Antuono, and that Mr Griffin was so upset that he confused Mr D'Antuono with such events
2.When Mr Colley was talking to Mr Zegulewski in the Banksia nurses' station on the morning of 13 November 1995, Mr D'Antuono was at all times only a few steps away and heard the entire conversation between Mr Colley and Mr Zegulewski
3.Why had Mr Griffin taken four days to report the matter.
Mr Howard and Mr Gibbens visited Mr Griffin at his home in Safety Bay on the afternoon of 13 December 1995. Mr Howard noted that assertion number 1 above was put to Mr Griffin. Mr Griffin's response was that the events happened as he had described them, there was no doubt that Mr D'Antuono was the nurse involved, and that the things that happened were so upsetting that he would not forget them or Mr D'Antuono.
Mr Griffin was then noted to have gone on to describe the events in some detail. Mr Howard noted that the account given was consistent with the previous ones given to Mr Miller, Mr Colley, the interview with Mr Gibbens and the statement of Mr Griffin to Mr Gibbens.
With respect to the suggested delay in reporting, Mr Griffin said he wanted to think about what had happened before deciding what to do. He felt that Mr D'Antuono seemed to have a lot of influence and therefore he should be careful about what he was getting into. However, having thought about it, he approached Mr Miller. He thought that Mr Miller had always been friendly and was comfortable in talking to him.
Mr Howard also noted that he interviewed Mr Colley regarding assertion number 2 above. Mr Colley reiterated that when Mr Zegulewski approached him in the nurses' station, Mr D'Antuono was not present, remaining in or adjacent to the bathroom. Mr Howard noted that Mr Colley said Mr D'Antuono emerged "some minutes later".
Mr Howard said that after making these further inquiries, he considered all the material that he had. In doing so, he created two further documents, marked "Confidential note 3" and "4" relating to Mr Griffin and Mrs Forbes. These documents were tendered as Exhibits 75 and 76 respectively. In the documents, Mr Howard set out the procedures taken in each case, the complaints made, details of the complaints, the procedure taken by Mr Howard, the reasons for decision, and the fixing of penalties. He also prepared the letter of termination for Mr D'Antuono, in anticipation of his attendance on 15 December 1995.
Exhibit 75, which dealt with the complaint of Mr Griffin, listed the relevant documents, outlined the relevant procedure, and set out Mr Howard's reasons for decision.
In this document, Mr Howard concluded that Mr Griffin's allegation was substantiated. The document said that Mr Griffin was consistent in all reports to staff and Mr Gibbens, and "remained alert, oriented and relevant" at all times. The "detailed account of events" was supported by Mr Colley's note of 26 November 1995 and verbal comments made by Mr Zegulewski to Mr Gibbens on 21 November 1995. The document noted Dr Cullen's opinion of Mr Griffin's mental state. The document noted that Mr Howard did not put any credence upon Mr Zegulewski's written report because it contradicted his verbal comments to Mr Gibbens, it contradicted part of Mr Colley's note of 26 November 1995, it contradicted Mr Griffin's statement in almost every respect, it contained allegations of patient behaviour, physical aggression by Mr Griffin towards Mr D'Antuono and Mr Zegulewski, which was not recorded in Mr Griffin's integrated progress notes but which is always so recorded for any patient when it occurs. Mr Howard noted that "this suggests it did not occur".
Mr Howard also noted that Mr D'Antuono's letter replying to the allegations was, in large part, word for word with Mr Zegulewski's report and was suggestive of collusion.
Mr Howard said that in order to accept Mr D'Antuono's account, Mr Griffin's statement would have to be disbelieved, as well as Mr Colley's note and Mr Gibbin's report of Mr Zegulewski's comment on 21 November 1995. Mr Howard said there was no reason to doubt the information given by Mr Griffin, Mr Colley or Mr Gibbens. He recorded that they had no apparent motive not to tell the truth and nothing to gain by making false statements.
On the other hand, he noted that Mr D'Antuono had not always told the truth in the past, and noted documentation which reflected this.
Mr Howard said that the penalty of dismissal "was fixed, taking into account this incident and Mr D'Antuono's documented previous record since 1985", and that there were observations of a lack of professional competence in many areas; a poor standard of interaction with staff, patients, carers and members of the public; and previous disciplinary action taken against him, both formal and informal.
With respect to the confidential note concerning the Mabel Forbes incident, the document followed a similar form as the previous document referred to. Mr Howard again found Ms Maier's allegations to be substantiated. He said that her report and statement were consistent, and she had no apparent motive for providing anything other than a factual record of the events described. Again, Mr Howard detailed the fact that Mr D'Antuono had not always told the truth in the past, as supported by documentation. The document noted that no penalty was fixed as dismissal had occurred as recorded in the previous confidential note. Mr Howard noted that, "therefore, any penalty would have no actual effect".
As stated earlier in these reasons, Mr Howard met with Mr D'Antuono on 15 December 1995 and effected the termination of employment of Mr D'Antuono and gave to him a letter reflecting his decision.
In his closing written submissions, Mr Carija suggested that there had not been procedural fairness to Mr D'Antuono. There was a submission that Mr Howard had already made up his mind, prior to the meeting with Mr Dzieciol and Mr D'Antuono on 12 December 1995. It was also suggested that at the meeting on 15 December 1995, Mr Howard intimidated Mr D'Antuono. He said that Mr Howard then brought up for the first time the Mary Elliot allegations which he went on to say that he did not take into account in formulating his dismissal decision, and an earlier investigation, subsequently aborted, conducted by himself and Mr Gibbens, which was never brought to the attention of the applicant. It was suggested that this was clear evidence that Mr Howard and Mr Gibbens were conspiring to remove the applicant and were working behind the scenes to plot the applicant's downfall. It was also submitted that "it was a sinister, covert operation, clearly designed to damage the applicant".
Mr Howard was criticised for his interviews with Mr Griffin on 20 November 1995 and on 13 December 1995. The submission also criticised the choice of Mr Gibbens to investigate the matter, given that he was involved in investigations against Mr D'Antuono in 1992.
It was submitted that any determination that Mr Howard could make in relation to the 1995 allegations could be considered to be biased because he had previously judged and determined the "guilt" of the applicant in 1992 on a number of other allegations. In relation to the 1992 incidents, it was submitted that Mr Howard specifically disbelieved all three versions of the incidents as told by the applicant, and on every occasion, fully believed the versions of other staff.
As part of the conclusion to the applicant's written submissions, it was stated that in all of the circumstances, a party or the public might entertain a reasonable apprehension that Mr Howard might not bring an impartial and unprejudiced mind to the resolution of the questions inquired into by him in so far as those questions raised the potentiality of findings adverse to the reputation of the applicant.
Whilst this submission was of an apprehension of bias, it was clear from the conspiracy theory, outlined above, that the applicant submitted that Mr Howard was motivated by actual bias and bad faith in an attempt to remove Mr D'Antuono from his employment, for the ulterior purpose of making sure that Mr D'Antuono did not continue as a job representative for the ANF at Armadale Lodge.
The procedural criticisms will be considered later in this judgment.
THE EARLIER INCIDENTS - THE FACTS
I have set out above a list of the earlier incidents about which evidence was given. I have also set out some issues concerning the purposes for which the evidence could be permissably used. I think it is first necessary to consider the evidence relating to such incidents, and determine whether the incidents occurred.
The performance of Mr D'Antuono in his employment at Graylands Hospital and his dismissal from Graylands Hospital:
This evidence was given on behalf of the respondent by Mr Thomson. Mr Thomson first came into contact with Mr D'Antuono when the latter was appointed to work at Graylands Hospital after he had graduated from the Western Australian School of Nursing in 1987. After the commencement of his employment, Mr Thomson began to receive reports about Mr D'Antuono's performance. Mr Thomson was at that stage the Director of Nursing Services at Graylands Hospital.
As a result of some problems that Mr Thomson heard of about Mr D'Antuono's performance, he had an interview with him. This took place on 15 June 1987. Mr Thomson documented the interview. The document recorded that Mr D'Antuono's standard of competence had caused ward staff some concern. The document noted that Mr D'Antuono had a great deal of difficulty in accepting the criticism being levelled at him and insisted that there were clashes of personality and elements of victimisation were occurring. Mr Thomson noted a concern that Mr D'Antuono did not appear to grasp the gravity of the situation, nor demonstrate a willingness to put any effort into improving his level of functioning. He was questioned specifically on a "dangerous area" relating to the administration of an intramuscular drug.
Mr Thomson noted his opinion that at that stage Mr D'Antuono did not appear to possess the necessary qualities to function as a competent registered mental health nurse, particularly in the areas of basic nursing skills and safe practice. Mr D'Antuono was notified that his continuing employment was dependent upon improvement in performance.
Mr D'Antuono was subject to a performance appraisal by another registered mental health nurse, which culminated in an interview involving that nurse, Mr D'Antuono and Mr Thomson on 10 August 1987. In a document about the performance appraisal, Mr Thomson noted there were certain problems with Mr D'Antuono's work and that he be moved to the Wembley A Unit at Graylands Hospital for a six-week assessment. This appraisal was performed from 4 September 1987 to 13 October 1987. There was a further appraisal of Mr D'Antuono at a Graylands Hospital ward unit from 27 December 1987 to 6 February 1988. Mr Thomson said that he was concerned about the lack of progress that Mr D'Antuono was making at the time, given the effort that was being put in and the opportunities provided, in the areas of appraisal and ongoing staff development.
By letter dated 25 March 1988, Mr Thomson wrote a letter to Mrs Pinch, the Director of Psychiatric Nursing Services, recommending that Mr D'Antuono be terminated from his employment as a registered mental health nurse at Graylands Hospital. Mr Thomson's opinion, as noted in the document, was that Mr D'Antuono's major deficiencies were in the areas of initiative, professional competence and compassion towards patients. Mr Thomson said his impression was that Mr D'Antuono did not possess the necessary qualities to function as a mental health nurse and was unlikely to develop such skills. Mr Thomson said that this was in spite of being offered every opportunity to address his difficulties and improve his levels of performance.
Mr Thomson had a meeting with Mr D'Antuono and Ms Linden McLeod, the then-Secretary of the Psychiatric Nurses Union, on 29 March 1988. After a discussion, Mr D'Antuono was informed that Mr Thomson had recommended his dismissal to the Commissioner of Health, on the grounds of failing to demonstrate the competency expected or to improve his level of performance, in spite of being offered every assistance to do so, to that required of a registered mental health nurse. A letter dated 29 March 1988 indicated that, subject to approval, Mr D'Antuono's dismissal would be effective from 15 April 1988. Mr D'Antuono was dismissed.
In his evidence, Mr D'Antuono pointed to the fact that Mr Howard was at Graylands Hospital in a position of second in charge to Mr Thomson at the time of Mr D'Antuono's dismissal. Mr D'Antuono said in evidence that there were many people instrumental in his dismissal from Graylands Hospital "but I would say that Mr Howard was involved in that dismissal, because he was second in charge of Graylands Hospital. He must have known." However, whilst critical of Mr Thomson's role in the termination of his employment at Graylands Hospital, Mr D'Antuono, when pressed in cross-examination, did not suggest that there was a conspiracy to terminate his employment when at Graylands Hospital. He said that the position was different to that at Armadale Lodge, where there was a conspiracy to terminate his employment, and that Mr Thomson was then involved in such a conspiracy (249).
In his evidence, Mr Howard said that he had no direct involvement with the termination of Mr D'Antuono's employment at Graylands Hospital. Whilst he heard about the processes that led to the termination of employment through being at various meetings with Mr Thomson, he did not had an active role in the dismissal of Mr D'Antuono.
I have no reason to doubt the evidence of Mr Thomson that he was of the view that there were valid reasons for the dismissal of Mr D'Antuono's employment from Graylands Hospital. I thought that Mr Thomson gave his evidence in a careful and considered way and was well aware of the requirements of due process.
An inaccurate statement made by the applicant on his application to the Western Australian Industrial Relations Commission concerning the first of his six-week appraisals:
The relevant document was Exhibit 29, which was signed by Mr D'Antuono and filed at the Western Australian Industrial Relations Commission on 21 April 1988. In paragraph 8 of the document, where the applicant was to give a brief outline of the circumstances of the dismissal, there contained the sentence, "The first six weeks report was favourable to me" referring to the first six week appraisal at Graylands Hospital, referred to above. The respondent alleged that this was misleading or inaccurate, as the first six weeks appraisal was not altogether favourable. I accept this criticism of Mr D'Antuono's application. I do so, despite the fact that Mr D'Antuono disputed the suggested inaccuracy of the sentence in the application form.
A false statement by the applicant on his application for employment with Armadale Kelmscott Health Service:
On 18 May 1988, Mr D'Antuono made an application in writing to the Armadale Kelmscott Health Service for a position as a registered mental health nurse on a one-month contract. The document was signed by Mr D'Antuono and dated 18 May 1988. The form had a section on previous employment. In this section, Mr D'Antuono filled in his employer's name and address as "Graylands Hospital"; Position Title, "RMHN, 13 April 1987"; Dates : "13 April 1987 to 15 April 1988"; Description of Duties, "RMHN" and Reasons for Leaving, "Seeking alternative work".
The final answer was a blatantly false statement, given that Mr D'Antuono had been dismissed from his employment at Graylands Hospital for his conduct and performance.
In his evidence in-chief, Mr D'Antuono accepted that he could not give a good reason why he completed the form in this way. He said that "I, at the time, was dismissed from Graylands Hospital and I didn't put that reason down because I was afraid that I would never work again as a mental health nurse". At the time of his application to Armadale Kelmscott Health Service, Mr Howard was not involved with that service. The Director of Nursing Services was a Mr Paul Sullivan. Although Mr Sullivan was not called to give evidence, it appears to be common ground that he was not aware of the falsity in the application form. When cross-examined, Mr D'Antuono accepted that there was no valid justification for putting the misleading answer on his employment application form. He claimed, however, that "I did not put it deliberately to mislead. I was frightened of never working again; I told you". A little later, Mr D'Antuono said, "I'm not saying it's acceptable to lie. But, I'm saying this much, if you were in a similar position as me, you're being sacked and you can't work again, what would you do?"
In my opinion, this was a telling admission by Mr D'Antuono. He was prepared to concede that, faced with the prospect of never working again in his chosen profession, he was, in effect, prepared to lie to his prospective employer. This evidence, of itself, casts a doubt over the whole of the evidence that Mr D'Antuono gave before the Court. He was somebody who was quite prepared to say that, being faced with the prospect of never working again in his chosen profession, he could be dishonest. To a large degree, not working again in his chosen profession was the issue before the Court.
Hank Ellis - 15 March 1989:
In this incident, the complainant was Ms Cecille Wainwright.
Ms Wainwright is currently a nursing sister at Bentley Lodge. She is registered in Western Australia as both a mental health nurse, and general nurse. She trained in England and worked there as a registered nurse and then went to New Zealand. She there worked with the Pacific Cancer Institute for a number of years. After that, she came to Western Australia and worked at Royal Perth Hospital for about six months. She then went to Italy and worked for about a year, came back to Western Australia and worked at Heathcote Hospital for a short while. She was subsequently at the Western Australian School of Nursing for 22 years. In this capacity, she attended at Armadale Lodge to supervise students.
In March 1989, she was at Armadale Lodge and saw an incident involving Mr D'Antuono. The incident involved a patient by the name of Hank Ellis who had serious visual problems. Mr Ellis was unsteady on his feet. Ms Wainwright asked Mr D'Antuono if the patient was all right and Mr D'Antuono said that he was okay. Ms Wainwright had been showering another patient with a student. She could not let go of this patient because she and the student were holding him up. However, when they got that patient seated, they heard a bang outside. When they went and investigated, Mr Ellis was lying on the floor with what appeared to be a fractured femur. Ms Wainwright asked Mr D'Antuono if the patient could be left where he was, and the student went to get a trolley. Ms Wainwright went to get a doctor. Ms Wainwright told Mr D'Antuono not to move the patient. She said that the correct procedure was to move the patient as infrequently as possible, and that when the student came back with the trolley, they would lift the patient on to the trolley. She said that would have been the correct procedure, according to the Western Australian School of Nursing Manual. When Ms Wainwright returned from speaking to the doctor, Mr D'Antuono and another nurse had already lifted the patient from the floor to a settee and were then lifting him from the settee to a wheelchair. She said that this ignored the requirement that a patient should not be moved so many times. She said that she told Mr D'Antuono that the patient should not have been moved.
Ms Wainwright said that she was annoyed because the patient should not have been moved so many times. As a result of this incident, Ms Wainwright wrote to Mrs Lilley, the Principal of the School of Nursing. In the letter, Ms Wainwright said that on no less than four occasions she gave Mr D'Antuono advice that the resident should not be moved except only once, from the floor to a trolley which was nearby. The letter said that this was not the first incident where Mr D'Antuono expressed disregard for nursing procedures taught by the "School of Nursing Policy and Standards". Ms Wainwright said in the letter that she felt strongly that student nurses rostered to Armadale Lodge should not work with Mr D'Antuono. A copy of the letter was sent to Mr Sullivan at Armadale Lodge.
In his evidence, Mr D'Antuono said that he only moved Mr Ellis when instructed by a doctor. Mr D'Antuono indicated that there was an investigation of sorts about the incident, but nothing come of it. When cross-examined, Mr D'Antuono did not allege that Ms Wainwright was involved in a wider conspiracy (transcript 259). However, he suggested that Ms Wainwright knew of the fact of Mr D'Antuono's dismissal from Graylands Hospital and that would have "affected her perception" (transcript 256).
When cross-examined, Ms Wainwright accepted that she knew that Mr D'Antuono had been dismissed from Graylands Hospital. She recalled Mr D'Antuono telephoning her at home and asking her about applying to Armadale Lodge. She was not sure of the date of this, however. She did not agree that Mr D'Antuono had been told by a doctor to move the patient. She said that the doctor had been busy in another room and that she was the person who asked the doctor to come and see the patient.
Ms Wainwright denied having any animosity towards Mr D'Antuono. She said that most times, he felt he was doing the right thing, even when she explained to him that he was not following the correct procedure. He would say he would comply but then would not do so. She said that she probably felt sorry for Mr D'Antuono as a result of this. She disagreed with the contention that she was watching Mr D'Antuono closely because of her knowledge of his dismissal from Graylands Hospital. She said, "I'd like to give people a fair crack of the whip. I don't prejudice people."
I thought that Ms Wainwright gave her evidence in a fair, forthright and clear manner and I have no reason to doubt her. Where there was a divergence between her evidence and Mr D'Antuono's evidence of the incident involving Mr Ellis on 15 March 1989, I accept the evidence of Ms Wainwright.
Bill Alexander - 24 December 1991:
Evidence was given for the respondent about this incident by Mr Ian Burns. Mr Burns is a level 3 registered mental health nurse. He is currently working at Whitby Falls Hospital, which is part of the Armadale Kelmscott Health Service. He has been working there for approximately 18 months. He obtained his qualification after doing a three-year, hospital based diploma through the Mental Health Services School of Nursing in Western Australia from 1978 to 1981. Mr Burns first met Mr D'Antuono at Armadale Lodge in 1991, when the former started to work there. Prior to that, he did not know anything of Mr D'Antuono. Mr Burns was Mr D'Antuono's supervisor.
Mr Burns gave evidence of an incident involving Mr Alexander and Mr D'Antuono on 24 December 1991. Mr Burns said that Mr Alexander was a psychogeriatric patient in his early 70s. Mr Burns said that Mr Alexander had been placed at Armadale Lodge because of his confusion, and that he believed that Mr Alexander's diagnosis was dementia.
Mr Burns said that he was reading through the shift reports of the previous day, and came upon an incident where Mr Alexander had been given an injection of medication. He then looked at the patient notes to find out why he had been given the injection. Mr Burns said that injections are fairly unusual, that they were "a very rare occurrence in psychiatric nursing". The notes suggested that the injection had been given for aggression. Mr Burns said that he was surprised because he could not remember any previous incident of aggression by Mr Alexander. Mr Burns said that the normal practice of managing aggressive patients was first of all to use counselling, secondly to use oral medication and thirdly to use an injection.
Mr Burns said that because older patients were more sensitive to medication than younger people, it is important to get dosages correct. Mr Burns looked at Mr Alexander's case notes and saw that the dose was 1.5 mg of Haloperidol, intramuscular. This document had been completed by a student nurse. However, Mr Burns noted a discrepancy because on the medication chart which had been signed by Mr D'Antuono, it showed him having given 3 mg of Haloperidol. Mr Burns said that he thought the discrepancy was a dangerous error. He said that on the chart prescribed by the doctor, there was 1.5 mg, not 3 mg; hence, Mr D'Antuono had given twice the prescribed dose. Mr Burns said that Haloperidol is a long-term tranquilliser which is used for sedative purposes, often with patients with schizophrenia. Mr Howard gave evidence of the dangers of increased dosages being given to elderly patients of Haloperidol.
Mr Burns left Mr D'Antuono a note, dated 25 December 1991, which asked him to explain in writing by the following day why the medication was given intramuscularly, why 3 mg was given, and why 1.5 mg was written in the nursing notes as the dosage given.
Mr Burns subsequently had a discussion with Mr D'Antuono about the issue. Mr Burns wrote down the contents of the discussion in a report which he gave to Mr Howard. Mr Howard was then Mr Burns' immediate supervisor. The document was dated 26 December 1991.
The document noted that Mr D'Antuono accepted that his management style had been aggressive, in failing to consider counselling or oral medication fully before giving the patient the injection. With respect to the dosage, the document said that Mr D'Antuono had said the dosage had previously been 3 mg. He did not realise that this had been changed to 1.5 mg, two days previously. He had not realised that the dosage had been changed, nor had he checked the chart before giving the medication. Mr Burns' document said that he had pointed out that this was a dangerous practice and counselled Mr D'Antuono to avoid such errors in the future by observing the proper procedures.
The third point on Mr Burns' document was that the nursing notes for the patient for that shift were written by student mental health nurse T Saunders. Mr D'Antuono had been unable to give an explanation of why he had told the student that the dose given was 1.5 mg. Mr Burns recorded that Mr D'Antuono initially stated to him that he had given 1.5 mg, but then admitted that he had given 3 mg.
Mr Burns concluded that no adequate reason was given for the three problems noted above, and that Mr D'Antuono was counselled to improve his performance in that area to the level expected of a registered nurse.
Mr D'Antuono claimed to have sent a written response to Mr Burns dated 25 December 1991, which was tendered as Exhibit 90. Mr Burns said that he did not see this response at the time. Further, Mr D'Antuono said that the document was not in his personal file when he inspected it in June1993. On 9 June 1993, Mr D'Antuono wrote to Mr Howard, saying that after viewing his personal file, he had not been able to find a letter he wrote to Mr Burns on 25 December 1991. Therefore, he included a copy of the letter for the record. On this letter, Mr Howard wrote that there was no copy of the letter in question on Mr D'Antuono's personal file and "Mr Burns said he did not receive a reply at the time, hence agreeing to the verbal request to discuss the matter. There is no evidence at all that the letter, as per copy overleaf, was ever submitted at that time". There is therefore some doubt as to whether Mr D'Antuono did send the letter which was dated 25 December 1991, as he alleged. However, I have do not have to finally determine this issue.
The letter differs from the explanation that Mr Burns noted above. The letter says that "the medication administered was 1.5 mg and the 3 mg written in the medication chart was an error on my behalf". The letter said that the dosage of 1.5 mg was written in the nursing notes as the dose given, since this was the actual dose given by Mr D'Antuono to the patient.
I do not accept this explanation of Mr D'Antuono, as it is in conflict with the evidence of Mr Burns about the oral explanation that he received from Mr D'Antuono at the time, and I prefer the evidence of Mr Burns to that of Mr D'Antuono generally on the issue.
In the applicant's closing submissions, Mr Carija was very critical of Mr Burns. It was submitted that Mr Burns was a hostile witness who tried to falsely establish that the applicant was guilty of some impropriety, when the events as suggested by Mr Burns simply never happened.
I do not accept this criticism of Mr Burns' evidence. Mr Burns gave his evidence in a very respectful manner and his answers were calm and rational. His demeanour was professional and I thought his evidence was convincing.
In his evidence, Mr D'Antuono made a number of allegations against Mr Burns. These were not squarely put to Mr Burns by Mr Carija in his cross-examination. Because of this, after adjourning to discuss the matter with both counsel in the absence of Mr Burns, I asked Mr Burns a series of questions based on the allegations of Mr D'Antuono. Mr Burns, in answer to my questions, said that he played no part in the decision making process of Mr Howard in dismissing Mr D'Antuono in December, 1995. He denied being part of a conspiracy directed towards the applicant by staff at Armadale Lodge to avoid his being the union job representative at the lodge. Mr Burns himself left Armadale Lodge (voluntarily) in October 1994. Mr Burns described as absolute nonsense an allegation that in making file notes and performing a later appraisal of Mr D'Antuono, he was motivated by inducements that Mr Howard held out to him, rather than a need to find the truth. He said that he only put the relevant file notes on Mr D'Antuono's file because it was routine practice. He denied having any ulterior motive in doing what he did with respect to Mr D'Antuono. He said that he was simply doing his job. In relation to a suggestion that the incidents involving Mr D'Antuono in 1992 involved a motive to try to discredit Mr D'Antuono and tarnish his reputation, Mr Burns said it was offensive nonsense.
I accept as truthful each of the answers given by Mr Burns on these issues.
I accept that there was a serious incident which happened with respect to the intramuscular injection of Mr Alexander and it was not simply a "storm in a tea cup", as was submitted by the applicant in the closing written submissions.
Bill Alexander - 11 January 1992:
This involved Mr Alexander having a fall. Mr Burns was again involved in this incident and made a note of it, which he dated 14 January 1992. The note recorded that on 11 January 1992, at 1530 hours, Mr Alexander was apparently pushed over by another patient, Mr Kidd. This occurred in Mr Alexander's room. Mr Alexander suffered from a fractured neck of femur. Mr Burns subsequently discussed the incident with Mr D'Antuono. Mr D'Antuono initially said that he had not seen Mr Alexander pushed over. However, it became clear to Mr Burns that what Mr D'Antuono actually saw was both patients in the room together, prior to Mr Alexander being found injured on the floor. Mr Burns said that he counselled Mr D'Antuono on the necessity of factual reporting. He said in his report that Mr D'Antuono seemed anxious to assert that he had acted correctly. The moving of injured patients was discussed. Mr Burns determined that Mr D'Antuono had prior experience of such incidents. In this instance, he had apparently moved the patient on to the bed. Mr D'Antuono explained that this was done prior to moving him to Armadale Hospital for medical treatment. Mr Burns explained that with suspected neck of femur injuries, minimal movement of the patient should be involved. Further, Mr Burns noted that prior to Ms Van Hugten's intervention, Mr D'Antuono had intended to transport the patient on an electric wheel chair, not horizontally. Mr D'Antuono was then counselled to be more alert to "trigger factors" and to exercise greater caution and expertise in the management of such situations. Mr Burns concluded that the incident was very preventable.
Ms Van Hugten also gave evidence about the incident. Ms Van Hugten is a mental health nurse-clinician, level 2. She is employed at Armadale Lodge. She has been employed there for five and a half years. Prior to that, she was also employed as a mental health nurse. She assumed her present title after a career restructuring for mental health nurses. As a mental health nurse, she had been employed for approximately seven years at Swanbourne Hospital and Armadale Lodge.
Ms Van Hugten said she was working in Acacia wing at Armadale Lodge on 11 January 1992 when Mr D'Antuono telephoned, saying that Mr Alexander had fallen over. Mr D'Antuono asked Ms Van Hugten to attend. She then went to Banksia wing where Mr Alexander had fallen. When she arrived at Mr Alexander's room, a short time later, Mr Alexander was on the bed and she asked Mr D'Antuono what had happened. Mr D'Antuono said that he had fallen. She was told that Mr Alexander had fallen on the floor. She asked how he got on to the bed and Mr D'Antuono replied that he had helped him on to it. Ms Van Hugten replied that he should have been left on the floor. Ms Van Hugten said in evidence that assistance should have been called for before Mr Alexander was moved. Ms Van Hugten then checked Mr Alexander for injuries. She formed the opinion that Mr Alexander had a possible fractured neck of femur. She said that the "rules" were that they were to then contact the emergency department of Armadale Hospital. Mr D'Antuono then asked whether he should get a wheelchair. Ms Van Hugten responded that Mr Alexander had to go on a stretcher. Ms Van Hugten said that it would have been hazardous for a patient, if there was a fracture and bony fragments very close to major veins, if he was transported in a wheelchair. She said that there may be bleeding which could endanger a patient's life if he was transported in an upright position. She therefore considered it totally inappropriate for the patient to be moved by a wheelchair. Mr Alexander was therefore transported by trolley to the hospital.
Mr D'Antuono's version of this event was different from that of Ms Van Hugten. He said in evidence, and in a document at the time, that he went to investigate the incident involving Mr Alexander and Mr Kidd and found Mr Alexander on the floor in pain. He then notified Ms Van Hugten to come and assist. He said that he and Ms Van Hugten together moved the patient from the floor to the bed and then she arranged for people from the hospital to come and take Mr Alexander away for X-rays. Mr D'Antuono said that Ms Van Hugten complained to Mr Burns about the incident because they did not get on. He said that he and Ms Van Hugten did not have a good personal relationship. He said that they had their arguments at times but tried to work together as professionals.
Ms Van Hugten did not accept this version of events. I accept the evidence of Ms Van Hugten as to this and as to how the incident occurred. Ms Van Hugten was very precise and careful in giving her evidence and did so without any hint of exaggeration or animosity towards Mr D'Antuono.
Edith Hodgson - 18 February 1992:
This incident was reported by Mr Melvin Jones. Mr Jones is an enrolled mental health nurse, currently working at Fremantle Hospital in the Alma Street Centre. Prior to that, he was a student mental health nurse for two years between 1991 and 1993, employed by the West Australian School of Nursing. His first placement as a student nurse was at Armadale Lodge.
Mr Jones recalled an incident involving a patient called Ms Edith Hodgson, who was on a weight reducing diet. She had as her lunch a salad. Mr Jones saw Mr D'Antuono take the lunch off the lunch trolley and put it on the nursing station bench. He said that he would have it himself. Instead of the salad, he gave Mrs Hodgson a jam sandwich. Mr Jones said that he saw Mr D'Antuono take some bread from the trolley, some jam out of the cupboard, put some jam on the bread, put it on a plate and give it to Mrs Hodgson. Mr Jones said he told Mr D'Antuono "this is not on", because Mrs Hodgson was on a weight reducing diet. He said that he did not recall any response from Mr D'Antuono. Mr Jones said he was quite angry about the incident because of a nurse's duty of care towards patients. He said that although he did not report the incident straight away, he did ultimately report it to Mr Mike Bowie, who was his clinical instructor, and also to Mr Burns. He also made a report to the Western Australian School of Nursing. His written report was dated 16 March 1992. The contents of the document were consistent with the evidence given by Mr Jones. A copy of the document was sent to Mr Howard by Mr Jones. The document said that Mr Jones did not feel that his conscience could allow him to let the matter go unreported, even though he did not want to get Mr D'Antuono into trouble.
Mr Burns made an appointment for Mr Jones to see Mr Howard about it. Mr Jones discussed the incident with Mr Howard. Subsequently, Mr Gibbens investigated the matter, and Mr Jones signed a statement prepared by Mr Gibbens.
Mr D'Antuono said that Mrs Hodgson did not want to have the meal which was allocated to her, so he made a suggestion to give her an alternative supplementary diet and instructed Mr Jones to make her a jam sandwich and something else to eat because she did not want the particular meal she was given. As a result of that, "Mr Jones must have been unhappy with whatever happened", because he reported Mr D'Antuono. Mr D'Antuono said that the food that had been allocated to the patient was put back on the trolley and taken back to the domestic services section of the Armadale Lodge.
When cross-examined, Mr D'Antuono said that if Mr Jones "had integrity, he would have told me of his concerns and not gone behind my back". Mr D'Antuono suggested that "there's another motive behind it". Mr D'Antuono said in cross-examination that he was suggesting that Mr Jones was being deliberately dishonest.
When he was cross-examined, Mr Jones said that he had no reason to lie and did not feel any pressure or compulsion to make a statement against Mr D'Antuono.
I accept Mr Jones' version of the incident involving Mrs Hodgson. Mr Jones presented as a genuine, good humoured and affable person and not someone who would go out of his way to make trouble for Mr D'Antuono. He was readily prepared to admit the limitations of his knowledge in his evidence. He also said in his evidence, and I accept, that he had no reason to lie.
Finn Melsom - 28 February 1992 :
This incident was reported by Mr Paul Lambourne. Mr Lambourne is a nurse clinician, acting level 2, at the Mill Street Centre in Bentley. He has been in that position since January 1995. Prior to that, he worked at Graylands Hospital to finish his training. He was a student mental health nurse between November 1991 and November 1994. He was attached to Armadale Lodge for a time when a student. He said that this was for about eight weeks in the early part of 1992. Mr Lambourne recalled an incident involving Mr D'Antuono and an elderly patient, Mr Melsom. Mr Lambourne said that Mr Melsom became very confused at times and would regress to earlier stages in his life. At a mealtime, Mr Melsom was told by Mr D'Antuono that the meal was ready and he did not respond. After he had been given very little time to respond, he was pulled to his feet by the elbow and pulled from where he was sitting to the dining table quite hurriedly, and given no chance to gain his balance. Mr Lambourne said that Mr Melsom seemed quite distressed. He did not know what was going on. He looked as though he was bemused. Mr Lambourne said that he felt that Mr D'Antuono's actions were not fulfilling his role as a nurse. Mr Lambourne felt that there was no reason why the man could not have been given more time to maintain his dignity and allow him to go to his meal in his own time. There was no reason for the man to be hurried at all. Mr Lambourne said that he did not say anything to Mr D'Antuono at the time but afterwards felt as though he should have done. He later regretted this because he felt that one of his responsibilities was to speak on behalf of patients if they could not speak for themselves.
Mr D'Antuono said of this incident that there were a lot of "old demented men" in the ward at the time and they were aggressive and non-compliant. Mr D'Antuono said that he assisted Mr Melsom from the lounge chair to the table to have dinner. Mr D'Antuono said that a statement made by Mr Lambourne about the incident, which was tendered as an exhibit, was untrue.
However, I consider that Mr Lambourne's evidence was given accurately and honestly. His evidence was given in a non-exaggerated fashion and was convincing. His evidence was given in a calm and considered manner, in contrast to that of Mr D'Antuono. I accept the evidence of Mr Lambourne.
William Mouat, 28 February 1992
This incident was also reported by Mr Lambourne. Mr Lambourne described Mr Mouat as a patient suffering from progressive dementia who was quite confused at times. Mr Lambourne recalled an incident when Mr Mouat was complaining about his general wellbeing, talking about his discomfort and how things were not right for him. Mr Lambourne saw Mr D'Antuono come from behind him and gave him a "glancing cuff across the top of the head and told him to stop complaining". Mr Lambourne recalled Mr Mouat saying to Mr D'Antuono, "What do you think you are doing?" and calling him a "bastard".
That evening, Mr Lambourne saw Mr Mouat muttering prayers to himself and then Mr D'Antuono said something to the effect of "shut up, you silly old fool". Mr Lambourne said that he did not notice Mr Mouat react overly to the comment but Mr Lambourne felt it was inappropriate to say such a thing when a man was praying.
Mr Lambourne said he was not sure what to do, given that he had not been in the profession very long. He spoke to Ms Van Hugten about it. She said that the normal protocol would be to report the matter to a level 3 nurse. He did this, reporting it to Mr Burns.
Mr Lambourne subsequently made a statement about the matter to Mr Gibbens. This document was tendered as Exhibit 111.
Mr D'Antuono denied that this incident occurred.
In his cross-examination, Mr D'Antuono claimed that Mr Burns had instructed Mr Lambourne to make reports about him. Mr D'Antuono said he was concerned because he used to come to work and see Mr Lambourne in Mr Burns' office on several occasions prior to the incident being reported. He said he was concerned about the amount of time Mr Lambourne was spending in Mr Burns' office. Mr D'Antuono said in evidence, "I never knew what the conversation was about but, to me, I am a little suspicious, why would someone spend the beginning of a shift talking to the clinical nurse specialist unless it's something to do with me". He said that he believed that Mr Lambourne made the complaint against him in bad faith, even though he was not a party to the conspiracy as such. Mr D'Antuono said he did nothing inappropriate to Mr Mouat. Mr Lambourne rejected the suggestion that he had acted in bad faith. I have said earlier that he was an impressive witness and I accept the reason given for the delay in reporting the incident. I accept the evidence of Mr Lambourne as to the incident involving Mr D'Antuono and Mr Mouat.
FACTUAL CONCLUSION ON EVIDENCE ON PAST INCIDENTS
I have found that the evidence of past incidents against Mr D'Antuono is proved in every instance. After the incidents in 1992, which were investigated by Mr Gibbens, Mr D'Antuono was interviewed by Mr Howard on 9 April 1992. Mr Howard reprimanded Mr D'Antuono regarding the incidents which occurred on 18 February and 28 February 1992, and was advised that the reprimands constituted official warnings and that he would be subject to disciplinary action, which included a restriction of duties and a requirement that he undergo a special performance appraisal.
Mr D'Antuono underwent the special performance appraisal from about May 1992 to about April 1993. The appraisal was conducted by Mr Burns. On or about 17 May 1993, Mr D'Antuono was advised that the appraisal was satisfactory and he was placed back on full registered mental health nurse duties.
UNION ACTIVITIES
As stated earlier, the primary thrust of the applicant's case was that Mr Howard was motivated by bad faith to have Mr D'Antuono removed from his employment because of Mr D'Antuono's activities as the job representative of the Australian Nursing Federation at Armadale Lodge.
Mr D'Antuono was acting ANF job representative at Armadale Lodge from December 1993 to January 1994. On 20 June 1994, he was elected as the job representative by ANF members at Armadale Lodge for a period of two years.
The applicant prepared, for the purpose of the hearing, a chronology of the union activities of the applicant. This chronology is set out as Appendix A to this judgment. The applicant submitted that it was as a result of these union activities that Mr Howard wanted to get rid of him. In addition to this, Mr D'Antuono referred to the fact that both Ms Claydon, by letter dated 23 December 1993, and Mr Burns, by letter of the same date, indicated that they did not want Mr D'Antuono to represent them in negotiations on their behalf.
I have carefully considered the evidence given by Mr D'Antuono about his union activities, and Mr Howard's alleged reaction to this. I have also carefully given consideration to Mr Howard's evidence on the subject of Mr D'Antuono's union involvement. Having done this, I am not satisfied in any way at all that Mr Howard was "anti-union" or "anti-Mr D'Antuono" because he was an active job representative or a "diligent" job representative, as Mr Dzieciol described him.
Mr Howard said he was aware of grievances that Mr D'Antuono had issued in his capacity as job representative, as well as representations made on behalf of certain union members, and involvements Mr D'Antuono had in proceedings in the Industrial Magistrates Court of Western Australia. He said that these matters had no bearing whatsoever on the disciplinary process that he undertook, commencing in November 1995. Mr Howard said in evidence that Mr D'Antuono's ANF activities were not mentioned by anyone at the meetings on 12 and 15 December 1995. In particular, I note that Mr Dzieciol did not say that these subjects were mentioned at the meeting of 12 December 1995. I think that if Mr Dzieciol was of the view that Mr D'Antuono's job representative status was a reason why Mr Howard was considering terminating his employment, as an experienced union officer, he would have mentioned this at the meeting and in his evidence.
Mr Howard, in his evidence, showed no animosity towards unions or job representatives generally or Mr D'Antuono in participating in such a capacity.
I therefore reject the submission that Mr D'Antuono's status as ANF job representative at Armadale Lodge was in any way connected with the termination of his employment.
MR D'ANTUONO'S EVIDENCE GENERALLY
I have set out in detail above the evidence given by Mr D'Antuono in respect of the past incidents and those involving Mr Griffin and Mrs Forbes. Where Mr D'Antuono's evidence conflicted, with respect to these incidents, with that of Mr Griffin, Ms Maier, Ms Wainwright, Mr Burns, Mr Miller, Mr Colley, Mr Jones, Mr Lambourne, Ms Van Hugten and Mr Howard, I have preferred the evidence of the respondent's witnesses. I have done this because on each occasion I considered the evidence of the other witnesses to be more convincing than that of Mr D'Antuono. In addition, I thought that there were a number of problems with the evidence of Mr D'Antuono, generally, as follows:
1.I have set out earlier some specific aspects of his evidence in relation to the incident involving Mr Griffin, which were unconvincing.
2.I do not accept Mr D'Antuono's overall submission that Mr Howard was motivated by bad faith to try to remove him from his position.
3.I reject entirely the suggestion that Mr Howard and the other people mentioned were involved in a conspiracy to remove Mr D'Antuono from his employment.
4.I think that the evidence of Mr D'Antuono in cross-examination was evasive. He was also prepared to rope a number of witnesses into his conspiracy theory when it was necessary to do so. For example, the evidence of Mr D'Antuono that I have quoted above regarding Mr Lambourne was overly suspicious and purely speculative.
5.As set out earlier, Mr D'Antuono was prepared to lie in his application to Armadale Lodge for employment because he thought, if he did not do this, he would not get another job in his chosen profession. I think that this reflects upon his evidence generally, in an application like this before the Court, to have his employment reinstated, where a key issue is whether he will work again in his chosen profession.
THE EVIDENCE OF MR HOWARD
Given the seriousness and number of allegations made against Mr Howard by Mr D'Antuono, I was very careful to observe the evidence given by Mr Howard. Having done this, I make the following observations about Mr Howard's evidence:
1.His evidence was given clearly and he was knowledgeable about the subject of mental health nursing.
2.His answers were thorough, calmly given and unexaggerated.
3.His answers indicated that he was well aware of management responsibilities and the need to delegate responsibility.
4.On some occasions, he readily acknowledged that he had made what might be considered errors. For example, he admitted that he said in a public area of Armadale Lodge to Mr Zegulewski and Mr D'Antuono that a claim made by Mr Zegulewski was "quasi-legalistic crap and un-Australian".
5.Mr Howard showed an awareness of procedural fairness, and the documents he compiled were balanced and fair.
6.Throughout, he presented as an intelligent, articulate and considered witness. He did not present as a witness who was actuated by malice, bad faith or improper purpose.
7.Mr Howard presented as a man who was receptive to advice, and not dictatorial in any way.
8.He displayed a good memory as to events, and showed that he did not rush to conclusions but made his judgment in a considered manner.
9.Despite the cross-examination of him by Mr Carija which contained a number of imputations, Mr Howard remained unruffled.
10.Mr Howard presented as an honest witness who was clear, decisive and confident of his own abilities. He did not present as the sort of person who would have been agitated by the union activities of Mr D'Antuono to such an extent as to embark on a conspiracy to remove him from his employment.
11.Throughout the course of the extensive cross-examination by Mr Carija, Mr Howard exhibited no malice or illwill.
12.His answers to questions were given fairly and directly.
I also note that none of the other witnesses indicated that they had any problems with Mr Howard's management style and practices. A number of them, when specifically asked, commented favourably upon Mr Howard's management style.
LEGAL CONCLUSIONS ON EVIDENCE OF PAST INCIDENTS
I have set out earlier the various bases upon which the respondent submitted that the evidence of past incidents was admissible.
As stated earlier, during the course of the hearing, I indicated that the evidence was at least admissible as part of the employment record upon which Mr Howard relied in deciding to terminate Mr D'Antuono's employment. In this regard, the validity of Mr Howard taking into account the past incidents was substantiated by the hearing before me. This is because the incidents upon which Mr Howard relied have been proved to have occurred as alleged, by the evidence before me.
I also accept the submission that it was appropriate for Mr Howard to take into account the employment record of Mr D'Antuono in assessing what penalty to impose upon him for the Ken Griffin incident. I accept the respondent's submission that it is fundamentally different to "punish" an employee who has a record of misbehaviour at work, as compared to an employee with no such history. I also accept that the law recognises the need for an employer, during the course of a disciplinary investigation, to ascertain whether there are any mitigating factors, either associated with the alleged ground for dismissal or arising from the employee's past record and future prospects; Bostik (Australia) Pty Ltd v Gorgevski (No. 1), (1992) 36 FCR 20 per Gray J, p 35.
The respondent also submitted that the evidence of past incidents was probative of whether the incidents in November 1995 actually occurred. As stated earlier, the respondent submitted that this submission required an analysis of the present law concerning propensity or similar fact evidence, particularly in light of the Evidence Act (C'th) 1995. In support of its submission, the respondent relied on Pfennig v R (1995) 182 CLR 461, Sheldon v Sun Alliance Australia Ltd (1990) 53 SASR 97, Martin v Osborne (1936) 55 CLR 367, DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 100 ALR 468, Peet & Co Ltd v Rocci [1985] WAR 164 and DPP v P [1991] 2 AC 447. The respondent also referred to sections 135, 97 and 98 of the Evidence Act.
Whilst the respondent's submission raises an interesting issue, I do not think that I need to determine it. This is because, having regard solely to the evidence about the November 1995 incidents, I have found them proved. I have found both incidents proved without having regard to any suggestion that Mr D'Antuono had a propensity to the sort of behaviour alleged of him, in the earlier incidents and the November 1995 incidents.
PROCEDURAL ISSUES AND SECTION 170DC
I have set out earlier the course of the investigation conducted by and on behalf of Mr Howard in November and December 1995. I consider that this was a thorough and genuine investigation. I do not think that there is any valid complaint against the investigation. I have already found that Mr Howard was not actuated by bias or malice.
I also do not think that there was any reasonable apprehension of bias in Mr Howard deciding the issue of termination of employment in 1995, albeit he had been involved in earlier disciplinary actions against Mr D'Antuono. It is to be remembered that a person in Mr Howard's position could well be involved in successive disciplinary actions against one employee. Such is the nature of a management position. The various incidents in 1992 happened some three years before the 1995 incidents. Mr D'Antuono was reprimanded and placed under a year-long performance appraisal in 1992. The result of the appraisal was satisfactory and he was returned to full duties. In the context of the employer/employee relationship, I do not accept that it is the law that a mere involvement in earlier disciplinary proceedings provides a basis for a reasonable apprehension of bias.
There would be many workplace situations where the same person will, of necessity, be judging more than one disciplinary issue involving an employee. For example, a sole trader with few employees may have to consider a number of disciplinary issues against individual employees over time. The same can be said of a person in a management position.
I have also considered the requirements of section 170DC of the Act. This provides that an employer must not terminate the employment of an employee for reasons related to the employee's conduct or performance unless they have been given an opportunity to defend themselves against the allegations made. This requirement was certainly satisfied in this case. Mr D'Antuono was certainly given the "fair go" which section 170DC requires: see the judgments of Wilcox CJ in Gibson v Bosmac (1995) 60 IR 1 at page 7, and Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at page 59.
SECTION 170DE - VALID REASON FOR TERMINATION
Section 170DE(1) of the Act provides that there must be a valid reason for the termination of employment, related to an employee's capacity or conduct or the operational requirements of the employer. The latter is not relevant in this case. The relevant point is whether Mr Howard had a valid reason for the termination of employment of Mr D'Antuono, relating to his capacity or conduct.
I accept that there was a valid reason in this case. The valid reason was, as Mr Howard said, the incident involving Mr Griffin. The extent of this misconduct of Mr D'Antuono, together with his past record, made the termination of his employment valid in all of the circumstances. There was a causal relationship between the valid reason for termination of employment and the termination itself: Kenefick v Australian Submarine Corporation Pty Ltd (1995) 131 ALR 197 at 208. The termination of employment was a logical response by Mr Howard to the conduct of Mr D'Antuono.
As stated by me in Garbutt v Stothers (unreported) IRCA 2452/95, 27 August 1996, I consider that there must be an element of misconduct of a sufficiently serious quality, to make termination of employment a valid response. In this case, I think the extent of the conduct against Mr Griffin was such that termination was appropriate. In this regard, I note the evidence of Mr Dzieciol which was to the effect that the conduct of Mr D'Antuono against Mr Griffin, if substantiated, involved "certainly very serious allegations . . . I think nobody would take issue with that". Generally, I accept the respondent's categorisation of the conduct as set out in paragraph 17 of the respondent's Summary of Facts, quoted above.
I have also taken into account, in assessing the seriousness of conduct against Mr Griffin, the July 1989 Zelestis Report into Graylands Hospital and Other Hospitals, and various nursing codes of practice which were tendered in evidence.
I also accept the respondent's submission that the actions of Mr Howard in summarily dismissing Mr D'Antuono for misconduct were appropriate in all the circumstances of the case. I think it was a case covered by section 170DB(1)(b) of the Act.
I accept the respondent's submission that summary termination is appropriate in a case where the conduct of an employee is so serious as to be inconsistent with the continuation of the employment relationship: see Turner v Carpet Call(Victoria) Pty Ltd (1994) 59 IR 78, 84-85, Blyth Chemicals v Bushnell (1933) 49 CLR 66 and Garbutt v Stothers, cited above.
The community has a responsibility to take care of its aged and psychogeriatric members. The operation of places like Armadale Lodge by the respondent is the exercise of part of this responsibility. The residents of such places are entitled to be treated with dignity, respect and courtesy and should be able to live without fear or violence from mental health nurses. It is not doubted that mental health nurses perform a difficult profession for which the community should be grateful. Generally, I am pleased to say that the evidence given by the mental health nurses at the trial reflected a sound knowledge and empathetic understanding of these basic concepts. However, the conduct of Mr D'Antuono in his treatment of Mr Griffin was so far removed from these standards to mean that termination of employment was appropriate, especially given his record of past conduct, failure to admit the allegations to Mr Howard or show any remorse. Mr Howard's decision to terminate Mr D'Antuono's employment was a valid one and necessary to ensure the dignified and safe treatment of the residents at Armadale Lodge.
THE APPLICANT'S SUBMISSIONS
The applicant's closing written submissions set out a number of other criticisms of the termination of employment of Mr D'Antuono, the evidence given by Mr Howard and the other witnesses on behalf of the respondent. I do not need to set out each of the points made in the final submissions which have not been specifically addressed earlier. It is sufficient to say that I have carefully read the submissions, considered the other points made, and do not accept that they lead to the application being upheld.
CONCLUSIONS
For the reasons outlined above, the application of Mr D'Antuono must be dismissed. Ultimately, I accept as sound Mr Howard's reasoning for the termination of employment of Mr D'Antuono when he said (transcript 988), "I found that the allegation made against [Mr D'Antuono] by Mr Kenneth Griffin was substantiated . . . having reached that conclusion, and bearing in mind his previous record, I determined that he should be dismissed".
In all the circumstances, Mr D'Antuono is not entitled to a remedy for the termination of his employment, and the application is dismissed.
I certify that this and the preceding 74 pages are a true copy of the reasons for decision of Judicial Registrar Ritter.
Associate :
Dated : 17 September 1996
APPEARANCES
Counsel for the Applicant: Mr Ivan Carija
Solicitors for the Applicant: Ivan Carija
Counsel for the Respondent: Mr Richard Hooker
Mr M Lundberg
Solicitors for the Respondent: Crown Solicitors Office (Western Australia)Dates of Hearing : 7 March, 16 April, 29 - 30 April,
1 - 3 May, 14 - 17 May, 1996Date of Judgment : 17 September 1996
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