David Frederick Heales v St Bartholomew's House

[1995] IRCA 711

DECISION NO:   711/95

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - Whether termination at the initiative of the employer - Valid reason relating to conduct - misconduct - Assault on fellow employee - Whether termination harsh, unjust or unreasonable - Whether applicant given opportunity to defend himself against allegations.

INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170EE

DAVID FREDERICK HEALES -v-  ST BARTHOLOMEW’S HOUSE INC. - WI95/1841

BEFORE:                 R D FARRELL JR

PLACE:  PERTH

DATE:  21 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1841

BETWEEN:  DAVID FREDERICK HEALES
  -          Applicant

AND:  ST BARTHOLOMEW’S HOUSE   INC.
  -          Respondent

MINUTE OF ORDERS

BEFORE:                 R D FARRELL JR

PLACE:  PERTH

DATE:  21 DECEMBER 1995

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 REGISTRY  )          No. WI 95/1841

BETWEEN:  DAVID FREDERICK HEALES
  -          Applicant

AND:  ST BARTHOLOMEW’S HOUSE   INC.
  -          Respondent

BEFORE:                 R.D. FARRELL JR

PLACE:  PERTH

DATE:  21 DECEMBER 1995

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, David Frederick Heales (“Mr Heales”), by the respondent, St Bartholomew’s House Inc. (“St Bartholomew’s”). Reinstatement was not sought.

St Bartholomew’s runs a hostel for homeless men, including a recently opened wing for frail and aged men. The hostel was previously run by the Anglican Church, but St Bartholomew’s is now an incorporated body. Mr Heales is a gentleman of 54 years of age, who had been employed as a care attendant at St Bartholomew’s for a little less than 6 months, having previously worked for other organisations involved with community care, including the RSL War Veterans Home, other nursing homes and Perth City Mission.

Mr Heales employment with St Bartholomew’s came to an end on Friday 30 June 1995, following a meeting at which it was put to him that he had assaulted a fellow worker, Mrs Jennifer Hinchley (“Mrs Hinchley”), the previous day. St Bartholomew’s have at all times treated Mr Heales as having resigned at the end of that meeting. Mr Heales denies that he resigned, and denies having assaulted Mrs Hinchley.

At the conclusion of the hearing, Ms Laferla, who appeared for St Bartholomew’s, conceded that there had been a termination at the initiative of the employer. The concession was properly made, as it was clear on the evidence that if Mr Heales resigned then, viewing the circumstances as a whole, his resignation was procured by the employer. Had Mr Heales not resigned, there is no doubt that it was the employer’s intention that he would be dismissed.

The reason the employment ended was that David Kernohan (“Mr Kernohan”), the manager of St Bartholomew’s, had concluded that Mr Heales had in fact assaulted Mrs Hinchley in the manner she alleged. There was evidence of other allegations that Mr Heales had also failed to follow Mrs Hinchley’s instructions on a number of occasions prior to the alleged assault. It was confirmed by Mr Kernohan in evidence that Mr Heales’ alleged failure to follow instructions was not a reason for the termination.

An unprovoked assault by an employee upon another employee is a valid reason for dismissal. There would be few circumstances in which a termination by reason of such an assault would be harsh, unjust or unreasonable. I am satisfied it would not be harsh, unjust or unreasonable in this case. Indeed, Mr Heales accepted in evidence that such a physical assault, if it occurred would warrant dismissal.

The issues to be decided in this matter are therefore first, whether Mr Heales did in fact assault Mrs Hinchley as alleged, and secondly, whether Mr Heales was given the opportunity to defend himself against the allegation.

The Allegation and its Investigation

The investigation into the alleged assault was conducted by Mr Kernohan, St Bartholomew’s manager.

The alleged assault was first raised with him on the evening of Thursday, 29 June 1995, when Mr Kernohan received a message to call Mrs Hinchley.

Mrs Hinchley had been employed at St Bartholomew’s for over 5 years, and had recently been appointed to the position of assistant supervisor in the frail and aged section, commencing in her new position at the beginning of that week on Monday, 26 June, 1995.

Mrs Hinchley had visited Mr Kernohan in his office before leaving work that day, and had been very upset. She had told Mr Kernohan about difficulties with some other staff not accepting her new appointment, giving some examples. Mr Kernohan indicated his support to her, and by the conclusion of that meeting, she was more settled.

During their telephone conversation later on the Thursday night, Mrs Hinchley was again very upset, and told Mr Kernohan that Mr Heales had physically assaulted her that morning by punching her on the left leg. When asked by Mr Kernohan to repeat the allegation, she repeated it in detail, explaining that Mr Heales had approached her when she was sitting outside the nurses’ station between the nurses’ station and the frail aged hostel, had spoken with her briefly and then leant over and punched her on the left leg. Mrs Hinchley says she told Mr Kernohan during this conversation that the incident happened at about 11.20am.

She also raised with Mr Kernohan allegations of some earlier incidents when Mr Heales had refused to accept her instructions.

While these allegations are not important in themselves, because they were not a reason for the termination, I will set them out very briefly at this point, because they provide a context for the alleged assault, and some of the evidence relating to them is relevant in my assessment of the witnesses’ credibility.

The alleged incidents of refusal to accept instructions,  which are denied by Mr Heales, include:

·“The Jack Hayward Incident”, when Mr Heales allegedly objected to Mrs Hinchley’s insistence that he take Jack Hayward - a recently arrived aged resident with dementia - on a bus trip with other residents, until Mr Kernohan intervened to put Mr Hayward on the bus;

·“The Medication Trolley Incidents”, where Mr Heales allegedly refused to use the trolley to dispense medication, despite a general instruction from Mr Kernohan and two specific instructions from Mrs Hinchley to do so;

·“The Liquor Purchasing Incident”, where Mr Heales allegedly disputed Mrs Hinchley’s instruction that he purchase residents’ liquor and cigarettes in future from outlets cheaper than “John’s Deli”, from where they were currently purchased; and

·“The ‘Bernie’ Incident”, where Mr Heales allegedly refused Mrs Hinchley says she then asked Mr Heales to take some of the other residents with him when he took “Bernie”, one of the residents, to the Inglewood Hotel.

In the course of their telephone conversation, Mr Kernohan asked Mrs Hinchley why she had not reported the assault earlier, Mrs Hinchley explained that she had been shocked, and had in fact left St Bartholomew’s soon after the incident to try and collect herself. She told him she did not act immediately because she was of the seriousness of the matter, and because she was aware that if she laid a complaint Mr Heales may lose his job.

Mr Kernohan asked Mrs Hinchley to make some notes of the allegation. Mrs Hinchley did so early the following morning on two sheets of blue notepaper. The original notes were not tendered - Mrs Hinchley presumed she discarded them when she had prepared a fuller report. However, a copy had been taken and was tendered to the Court.

The notes, which cover a range of incidents leading up to and including the alleged assault, were as follows:

“Tuesday Lunch time.
Told David Heales that Jack Hayward was one of the group to go to Rockingham.
David said ‘I am not taking him’. Was told again that Jack was going. David’s argument was that he would lose him. This conversation took place in the kitchen.

Thursday

Issue one7.30am Medication going out in the trolley. Had previously been through the same issue on Tuesday

outside Frail & Aged.

2/Other residents going to the hotel.

3/Spoke about Residents alcohol being cheaper at Liberty Liquors. David’s reaction again No, I will continue to go to Johns.

The subject of Jack Hayward came up again and David said ‘You got your own way over that didn’t you’ & thumped me on my left leg.”

Mr Kernohan organised a meeting for the following morning, to investigate Mrs Hinchley’s allegations, and asked Mrs Hinchley to come in to work to attend, notwithstanding that it was her day off.

The next morning, Friday 30 June 1995, Mrs Hinchley again spoke with Mr Kernohan, showing him the bruise on her thigh, which was, Mr Kernohan says, “fairly large” with “quite marked discolouration”. She gave Mr Kernohan the notes she had prepared. She mentioned on this occasion that two of the aged residents may have seen her and Mr Heales talking outside the nurses’ station.

Mr Kernohan says he immediately found and spoke with them. Mr Kernohan says that one of the residents said he remembered seeing them speaking at about that time, while the other had no recollection of seeing them. There was no direct evidence of this at the hearing. Mrs Hinchley explained that one of the residents had since passed died, and the other - who is about 75 years of age - has “absolutely no memory recall from one week past”. Mr Kernohan did not say in evidence when he was first told of the time of the alleged assault, but his evidence on this point confirms he was aware of the alleged time prior to the meeting.

Mr Kernohan then called Mr Heales & Mrs Hinchley into his office at about 8.40am. He told Mr Heales that he had received a formal complaint from Mrs Hinchley alleging that he had assaulted her.

Mr Heales denied assaulting Mrs Hinchley, and offered to deny it on the bible. Mr Kernohan declined that offer. He explained in cross-examination that he believed a person’s word should be good enough in that situation. He volunteered in evidence that he had told Mr Heales it was not necessary “as I did not believe in it”. Mr Heales made much of the ambiguities inherent in that comment.

Mr Kernohan then asked Mr Heales about Mrs Hinchley’s other allegations concerning the earlier incidents in which she said Mr Heales had refused to follow her instructions. In Mr Kernohan’s view, Mr Heales’ responses amounted to concessions that he had failed to carry out Mrs Hinchley’s lawful instructions. Mr Heales does not accept this view.

Mr Kernohan then returned to the allegation of the assault, asking when Mr Heales had last spoken with Mrs Hinchley the previous morning. Mr Heales replied that it had been at 8.30am.

Mr Kernohan says he told Mr Heales that one of the aged residents had seen Mr Heales talking with Mrs Hinchley later than this. Both Mr Kernohan and Mrs Hinchley say Mr Heales said that wasn’t possible because he had been cleaning toilets in the Appleton Hostel. Mr Kernohan recalls that he became suspicious at this point because he was aware that another employee, Paul Williams (“Mr Williams”) had been cleaning toilets the previous day.

Mr Heales denies ever mentioning the Appleton Hostel in any context. He says he said he was repairing toilets, not cleaning them.

Mr Kernohan says he then asked Mrs Hinchley if she had any response. He says Mrs Hinchley confirmed to Mr Heales that the assault had taken place at around 11.15am, when Mr Heales had come back from being out, and that he had walked down from the Kensington Street car park and spoken to her. Mrs Hinchley said that Pierre Te Aho, another supervisor (“Mr Te Aho”), had spoken to David at this time about the “Bernie” issue.

Mr Heales says that he now recalls Mrs Hinchley being present when he had a conversation with Mr Te Aho about the “Bernie” issue at about 11.45am that morning in the nurses’ station, but that he did not speak with her and hadn’t been focusing on her at the time, and so had forgotten about it when Mr Kernohan asked him when he had last spoken with Mrs Hinchley on Thursday morning.

Mr Kernohan called Mr Te Aho into the office and asked him about his discussion with Mr Heales. Mr Heales says Mr Te Aho was mumbling and so he couldn’t hear what Mr Te Aho had to say. He did not indicate to Mr Kernohan that he could not hear, he says, because he didn’t think that the matter Mr Te Aho was being asked about - the discussion between them the previous day about the “Bernie” incident - was serious. Mr Kernohan and Mrs Hinchley say Mr Te Aho agreed with Mrs Hinchley’s account. Mr Te Aho did not say in evidence what it was he said during the meeting.

After Mr Te Aho left the room, Mr Kernohan put it to Mr Heales that he knew Mr Heales had not been cleaning the toilets. Mr Kernohan says that Mr Heales then changed his story and claimed that he had been fixing the toilet cisterns. Mr Kernohan says he is certain Mr Heales initially said he was cleaning the toilets. Mr Kernohan had made his own arrangements about fixing the cisterns, though they had not yet been acted on. This led him to have doubts about Mr Heales’ new claim.

Mr Kernohan says that during the interview, Mr Heales had not turned to face Mrs Hinchley at any time, and kept looking down towards the floor. Nor did he turn to look at Mr Te Aho. Mr Kernohan said he would have expected Mr Heales to show some signs of anger, and to “eyeball” a person who was laying a false accusation.

Mr Kernohan put it to Mr Heales that he had conceded that he had failed to carry out Mrs Hinchley’s lawful instructions, and that there were inconsistencies on his own statement as to the assault. Mr Kernohan then read St Bartholomew’s policy on gross misconduct to Mr Heales. St Bartholomew’s Disciplinary Procedure (Exhibit SB2) provides for a series of warnings where performance is unsatisfactory, and then provides as follows:

“6.Nothing in the above shall prevent the Manager in cases of misconduct which are of a serious nature but do not warrant instant dismissal from issuing a first and final warning either orally or in writing.

7.THE FOLLOWING OFFENCES SHALL WARRANT INSTANT DISMISSAL:

a.THEFT FROM THE ESTABLISHMENT.

b.PHYSICAL ASSAULT ON A RESIDENT OR OTHER STAFF MEMBER.

c.BEING FOUND ASLEEP ON DUTY.

d.CONSUMING ALCOHOL ON DUTY OR REPORTING FOR DUTY IN AN INTOXICATED STATE.

e.        SERIOUS MISCONDUCT”.

Mr Kernohan confirmed in evidence that by this point he had reached the conclusion that the assault had occurred and that Mr Heales had done it.

Mr Kernohan says he then told Mr Heales that, in the situation, there were choices. Mr Heales’ choice was that he could resign. Mr Kernohan’s choice was that he may sack him. At this, Mr Heales stood up, put his pager on the desk and walked out of the office.

Mr Kernohan says the interview took about 20 to 25 minutes, and concluded at about 9.05am. He immediately dictated a summary of the interview, and then went directly into another meeting.

Immediately after the interview, Mrs Hinchley completed an accident report which Mr Kernohan had left for her (Exhibit SB6) and then went home. The report contains some errors. For example, the “date reported” is given as “27/7/95”, which is the last Thursday in July, rather than the last Thursday in June. Mr Kernohan has dated his signature “3/6/95” rather than “30/6/95”. I do not attribute any significance to these errors.

The next day, Saturday 1 July 1995, Mrs Hinchley saw her doctor to “keep everything tidy”. The doctor issued a medical certificate evidencing her bruising, describing it as a “haematoma to the lateral mid section of the left thigh, approximately 10 centimetre diameter” (Exhibit SB5).

Was There An Assault?

Under Section 170EDA of the Act, the onus rests on St Bartholomew’s to prove that it is more probable than not that Mr Heales assaulted Mrs Hinchley in the manner she alleges.

Mr Heales did not seek to contradict Mrs Hinchley’s claim to have injured her thigh, which is supported by her doctor’s certificate, and by Mr Kernohan’s evidence of having seen the bruise. However, Mr Heales vehemently denies that he assaulted her.

There were no witnesses to the alleged assault. It is necessary therefore for the Court to look to any circumstantial evidence, and to assess the credibility of Mr Heales and Mrs Hinchley in reaching a finding as to whether or not there was an assault as alleged.

Mrs Hinchley’s evidence was that the assault took place between 11.15 and 11.20am. She recalls she was sitting in the courtyard outside the frail and aged unit facing the nurses’ station, talking to two residents. She says Mr Heales came down from the car-park to the nurses’ station. It was pension day. She says they had a discussion about the most appropriate place from which to buy the residents’ liquor. Mrs Hinchley says she then asked Mr Heales to take some of the other residents with him when he took “Bernie”, one of the residents, to the Inglewood Hotel. Mr Heales apparently refused, saying that “Bernie has to go on his own”, and saying that Pierre Te Aho, the previous Assistant Supervisor, had said so. Mrs Hinchley says she insisted, and at that point, Mr Heales, who was standing on her left, leaned over, quietly said “You got your way over Jack Hayward”, and “thumped” her on her left leg. 

Mrs Hinchley says she got up and walked across the courtyard to Pierre Te Aho, who she found between the kitchen and the nurses’ station, and asked him to sort out the “Bernie” problem. She said nothing to Mr Te Aho about Mr Heales’ assault. Mrs Hinchley says she needed to get away and collect her thoughts and calm down. She had made up her mind she was going to leave the premises for an hour.

Mr Heales denies assaulting Mrs Hinchley, or even speaking to her, after 8.30am Thursday morning. He says the conversation about the most appropriate place from which to buy the residents’ liquor took place the previous day, Wednesday 28 June, immediately after he had returned from purchasing beer and cigarettes from the residents.

Mr Heales says he was repairing some toilets between 8.30am and 11.30am on Thursday, and believes that at 11.20am he would have been speaking with Mr Duggan, a member of management, in his office. Mr Duggan gave evidence, but was of little assistance. He confirmed that Mr Heales raised with him at some stage the need to fix one of the toilet cisterns, and that he had asked Mr Heales to look at it. He thinks Mr Heales spoke with him about it on a couple of occasions. He is unsure when these discussions took place, but it could have been at the beginning of the week Mr Heales left. He did not have a recollection of whether or not Mr Heales spoke with him before lunch on Thursday 29 June 1995, and does not recall where his conversations with Mr Heales took place. He doesn’t recall whether Mr Heales came back to him after their initial discussions. He recalls that another staff member ultimately fixed the toilets after Mr Heales left St Bartholomew’s.

Mr Heales says he went out to do some banking for wages and for two residents at about 11.30am. In his notes he says that, after seeing “Carol” for the wages cheques and one of the resident’s passbook, he then went to see Pierre Te Aho to get the other resident’s passbook. He says Mrs Hinchley was with Mr Te Aho at that time. Upon returning from the bank he says he went straight to Carol’s office to hand over the wages. Carol did not give evidence. He says he then went to the nurses’ station, to hand over the passbooks to Mr Te Aho. He recalls Mrs Hinchley was there, but he did not speak to her.

He says it was Mr Te Aho who told him to take four other residents to the pub with Bernie. Mr Heales says he asked Mr Te Aho whether he had gotten Bernie’s permission. He says this was meant jokingly, because about a month before Mr Te Aho had told him and Sue Butcher, a fellow carer, that they should ask Bernie first before taking another resident to the pub with him, because Bernie did not like anyone going with him. Mr Heales says that after his joking comment, they talked about who would be going with Bernie. Mr Heales then left to deliver other purchases.

Mr Te Aho’s evidence was that Mrs Hinchley spoke to him outside the kitchen (which is next door to the nurses’ station) at around 11.00am or 11.30am on Thursday, and asked him to speak to Mr Heales concerning his taking the residents to the pub. Mrs Hinchley was on her way to the administration offices. Mr Te Aho says that “in her voice she was a little bit upset” but he’d seen her like that before. He says he knew she wanted him to do something about it. He didn’t notice that she was hurt or limping.

Mr Te Aho says that he then went and spoke to Mr Heales in the nurse’s station about it, and told him what Mrs Hinchley had said. He says he told Mr Heales that the van didn’t belong to Bernie, and that he would go and speak to Bernie, which he did. Mr Te Aho says that he was not given any passbooks or money by Mr Heales, and that Mrs Hinchley had taken charge of that since she had taken the job of Assistant Supervisor.

Mrs Hinchley says that, after speaking with Mr Te Aho, she went to Mr Duggan’s office, and asked if she could go then and purchase some plants which were needed for the new units. She is certain that this was at 11.25pm. She knew it was a bad time because it was her job to serve lunch at midday. She asked if Mr Williams could do her duties at lunch time.

These matters had not been put to Mr Duggan or Mr Williams, who had already given evidence. It is likely that this was because Ms Laferla had not been instructed in detail as to the basis upon which Mrs Hinchley felt sure of the timing of the incident.

Mr Heales agrees that Mrs Hinchley was not in the kitchen while he had his lunch and completed his kitchen duties.

Mrs Hinchley says she drove to Belmont Shopping Centre, and had a “thumping headache” when she arrived. She then sat in the car and cried. She had a cigarette and continued to cry for some time. She says it was just a reaction to the whole week. She later explained that the new job had been a lot to absorb, and that she had also had some minor problems with another staff member who had unsuccessfully applied for the job.

Eventually she bought some palms, and returned to St Bartholomew’s by 1.00pm. By then she felt calmer. She went about her normal afternoon duties and then visited David Kernohan’s office before going home at 3.00pm.

Mrs Hinchley was an impressive witness. I formed the impression she was a quiet, sensible person and the nature of her evidence and the manner in which she gave it gave me no reason to doubt its truth. The only other witness who gave evidence of any assistance concerning the events immediately surrounding the assault was Mr Te Aho, and his evidence was consistent with and tended to support that of Mrs Hinchley. However, there is an issue arising from Mrs Hinchley’s evidence which must be addressed.

Mr Heales contended that it would be expected that Mrs Hinchley would have complained earlier of the assault.

Mrs Hinchley said nothing to Mr Te Aho about the alleged assault moments after it occurred. Nor did she raise it with Mr Duggan - he says he learnt of it the next day. She did not raise it when she met with Mr Kernohan just before leaving work that afternoon, though she did raise other more general issues of concern to her.

After that meeting, and on Mr Kernohan’s instructions, Mrs Hinchley sought out Mr Heales and Mr Williams to remind them that they were required to keep the gate of the dementia wing shut. Mr Heales claims Mrs Hinchley’s manner of speech and behaviour was perfectly ordinary on this occasion. While not having a firm recollection of the specific occasion, Mr Williams confirmed seeing Mrs Hinchley several times during that day, and not noticing anything unusual about her manner. He did not recall seeing her limping or showing any distress.

Mrs Hinchley says she didn’t feel she felt anything untoward speaking to Heales at that time. It had been normal for her after a violent incident with a resident to have to face other residents straight away. She says she gave the reminder as instructed and all she wanted then was to go home.

Mrs Hinchley says she drove home, and again felt she was “losing control”. It took her two hours to make the decision whether to report the assault, she said, after discussing it with her husband.

When Mr Kernohan asked her why she had not reported the assault earlier, Mrs Hinchley explained that she had been shocked, and told him about leaving St Bartholomew’s soon after the incident to try and collect herself. She told him she did not act immediately because she understood the seriousness of the matter, and because she was aware that if she laid a complaint Mr Heales may lose his job.

Mr Kernohan confirmed that staff members were required under St Bartholomew’s policy to report all violent incidents on the day they occurred, but contended that management, such as Mrs Hinchley, had a discretion in such a matter. Mrs Hinchley says that she regarded the procedure on violence to be talking about violence from a resident.

Some evidence was led concerning the training staff received in dealing with violent situations or people (eg Exhibit SB7), and it is clear that great importance is placed on staff remaining calm, and not aggravating the situation. Mrs Hinchley gave evidence of having been assaulted by residents on two occasions during her 6 years with St Bartholomew’s, and of other occasions when she has been sufficiently threatened by residents under the influence of drugs to call the police. Mrs Hinchley appears to have been adept at dealing with violent situations involving residents, as Mr Heales confirmed in his evidence.

It may then have become instinctive for Mrs Hinchley to not react initially to violent incidents, but to repress her reactions until they could safely be dealt with. This is even more understandable, where she had recently assumed a position of authority, and was having difficulty getting Mr Heales and at least one other staff member to accept that authority. It may have seemed to Mrs Hinchley that it would be a sign of weakness if she acknowledged to Mr Heales or other staff that she was upset.

I also find it understandable that Mrs Hinchley would want to take the time to think through the ramifications of reporting the assault upon Mr Heales and, presumably, herself in her new position, before deciding to do so.

Turning to Mr Heales’ evidence, while he was impassioned in his denial of the alleged assault, I was left in doubt as to the accuracy of aspects of his evidence.

An obvious example concerns Mr Heales’ evidence relating to the Medication Trolley Incidents.

Mrs Hinchley says she saw Mr Heales coming out of the nurses’ station on the morning of Tuesday 26 June 1995 with dosset boxes in his arms. Each patient apparently has a dosset box containing all their medication. She reminded him that Mr Kernohan had told staff the previous Thursday that they had to use a locked medical trolley at all times to distribute medication, for security reasons. He said he found it best to just carry the dosset boxes.

She says she saw him again on the Thursday morning, again with the dosset boxes in his arms. When she reminded him of their previous conversation, he responded “I have my own way of doing it”.

Mr Kernohan says that during their final interview, Mr Heales confirmed that he had his own way of doing it, and more or less would continue to do it.

Mr Heales made notes of the events of the period from Tuesday 27 June 1995 to Monday 3 July 1995. He began making the notes on Saturday 28 June, 1995 and completed them within a week of his employment ending. (Exhibit H2). An affidavit was drawn up, partly based upon those notes, and was sworn by Mr Heales and filed with the Court on 14 July 1995.

In his notes, Mr Heales places the only conversation with Mrs Hinchley concerning the distribution of medication as taking place at 7.30am on Thursday morning, in the company of Sue Butcher, a fellow care attendant. Sue Butcher did not give evidence. In both the notes and the affidavit he says that he ultimately agreed and obeyed Mrs Hinchley’s instructions, using the trolley.

Mr Heales reinforced this in this evidence. He agreed in evidence that the week before Mr Kernohan had instructed staff to use the trolley to dispense medicine. Mr Heales says he then used the trolley and gave out the medication “as per instructions”. He denied having any conversation with Mrs Hinchley on the matter on the Tuesday, saying that Mrs Hinchley was “making it up”. He denied that he was disobeying the instruction on the Thursday, when he agrees they spoke about the dispensation of the medication. He says he was using the trolley. When I questioned him further about the matter, he said he thought he carried out Mr Kernohan’s instruction, and that to the best of his memory he used the trolley. When I asked him whether, if he hadn’t used the trolley, it was the sort of thing he would expect to remember, he said, “I think at this point of time, no.”

When Ms Laferla resumed her questioning, he again vehemently asserted he was using the trolley, and again accused Mrs Hinchley of lying.

I pointed out to Mr Heales that his own notes, made soon after the event, state that:

“Mrs Hinchley told Sue Butcher and me that David Kernohan (sic) instruction were that we must take the medicine trolley to each resident and give them their medication”.

I asked him why, if he were already complying with Mr Kernohan’s instruction, would she have raised it with him. He said he couldn’t remember the trigger for the conversation, but that he was at the medicine trolley by the medicine cupboard at the time sorting out the dosset boxes.

Mr Williams, who was called by Mr Heales, volunteered evidence on the matter. He said Mrs Hinchley spoke to Mr Heales and he when they were on their way to the dementia unit. Mr Williams was adamant that Mr Heales had left the trolley, and had the dosset boxes in his hands. He was “100% certain”, he said, that the dosset boxes were taken past the dementia gate. He says Mrs Hinchley told Mr Heales that he was meant to use the trolley and not transport the medication in the dosset boxes. Mr Heales replied “This is the way I’ve been doing it and I’ll continue to do it this way”.

I do not accept Mr Heales’ evidence on this matter.

There are also troubling aspects of Mr Heales’ evidence concerning the “Jack Hayward” incident, when Mr Heales allegedly objected to Mrs Hinchley’s insistence that he take Jack Hayward - a recently arrived aged resident with dementia - on a bus trip with other residents to Rockingham. At some stage during the dispute as to whether Mr Hayward should go, Mr Heales claimed that he could not go because the bus had only four passenger seat belts.

When cross-examined about this, Mr Heales said that to his best knowledge there were 4 seat belts fitted in the vehicle, though there were five passenger seats. Mr Heales regularly took residents for trips in the bus. He said it came up once before, weeks beforehand, and he had had a look and could not find the complete fifth seat belt. He could see a strap, but he couldn’t see a receptacle for it to go into. He said he could be in error, but he had checked.

He initially told the Court that “I raised my concern”, but when later asked with whom he raised it, he said “yeah, but I did - it was raised in my own conscience...”.

Mr Te Aho gave evidence that there were five passenger seat belts. He said that a seat belt could not fall down or be concealed in a crevice - there is nowhere it could fall down.

Mr Heales’ evidence was also inconsistent as to his presence in the courtyard - the location of the alleged assault - on the relevant day. During his evidence in chief I asked him:

“Are you confident that you were not in the courtyard in the course of the morning? ---Yes, sir.”

Later, in cross-examination, Mr Heales conceded, after questioning based upon his other evidence as to his movements, that:

“There’s two doors, so you don’t have to go through the courtyard. I more than likely did go in there, but Mrs Hinchley wasn’t sitting outside”.

Finally, when asked how many times in that day he would have gone into the courtyard, his response was “seven”, after recounting seven incidents all of which on his account took place in the morning.

While these matters in which Mr Heales’ evidence was demonstrably unsatisfactory do not go to the crucial issues, they illustrate the considerations which lead me to prefer the evidence of Mrs Hinchley to that of Mr Heales. Accordingly, and having considered all the evidence, I find that it is more probable than not that Mr Heales assaulted Mrs Hinchley in the manner she alleges.

I therefore find that there was a valid reason for termination of Mr Heales’ employment.

Ms Laferla suggested that the fact that Mrs Hinchley had been successful in her appointment to the assistant supervisor’s position for which Mr Heales had applied may have generated resentment which ultimately led to the assault. 

Mr Kernohan said in evidence that he was hoping that Mr Heales would resign, because it would be more difficult for him to gain further employment if he were dismissed. He assumed Mr Heales had been disgruntled that he hadn’t got the job, and he felt Mr Heales had problems working with women. He thought it had been a “once-off” situation which shouldn’t jeopardise Mr Heales’ future employment. He says it would have been very difficult however have kept Mr Heales on, as there were limited options as to where he could be placed.

Mrs Hinchley says that she believed there was a lot of anger in Mr Heales because he didn’t get the assistant supervisor’s position. There was anger, she said, behind the thump, and while she had previously been physically and verbally assaulted by residents, she never thought it would come from a staff member.

In deciding whether to report the assault, she thought that if there were another incident between them, it would be no good to her telling Mr Kernohan at that time that it had happened before. This evidence suggests that Mrs Hinchley held a concern that it might not be a “once off” situation. Nevertheless, she said it was a hard decision for her to make.

I heard evidence from Reverend Thornton-Wakeford, Mr Heales’ Archdeacon, and from Mr Ian Matthews, Mr Heales’ previous employer at Perth City Mission. They spoke highly of Mr Heales’ honesty and his gentle temperament, and I have taken their evidence into account. I have also had regard to numerous references which were tendered, and which similarly vouched for Mr Heales’ good character.

While I have found, on balance, that the assault occurred, I accept it was an act out of character for Mr Heales. I can only assume it was caused by some accumulation of resentments or stress - it is unhelpful to speculate as to their source. I have no doubt Mr Heales would have regretted it immediately it occurred and would have felt acutely ashamed. Further, of course, he would have been aware that this one lapse could have grave consequences.

Clearly Mrs Hinchley and later Mr Kernohan were both concerned about the impact of their decisions on Mr Heales. Whether or not they might, in their discretion, have chosen to temper justice with mercy is not the concern of this Court. The business of this Court is justice. While it is regrettable that this isolated incident has resulted in Mr Heales losing employment at a time in his life when further employment will no doubt be difficult to come by, I do not find the termination of his employment in the circumstances to be harsh, unjust or unreasonable.

Was Mr Heales Given an Opportunity to Defend Himself?

The manner in which the investigation was conducted was not flawless. It is always preferable in my view that any allegation be reduced to writing, which should be given to the employee, and that the employee be given ample time and opportunity to prepare their defence before the conclusion of the investigation.

However, I formed the view that Mr Kernohan approached the investigation with appropriate recognition of the gravity of the task at hand.

Mr Heales was advised of the allegation against him. The various explanations which Mr Heales offered during the interview were followed up with any witnesses who could verify them, such as Mr Te Aho.

Mr Kernohan says that Mr Heales did not raise during the interview his claim that he was speaking with Brain Duggan at about 11.20am on Thursday, when Mrs Hinchley says that the incident took place. He says he first heard that claim quite recently. There is a reference to a discussion with Mr Duggan in Mr Heales’ notes, but not in his affidavit.

By the end of the meeting, Mr Kernohan had formed a conclusion, largely based upon the demeanour of Mr Heales and inconsistencies in his explanations, as to the truth of Mrs Hinchley’s allegation. This led him to make the statement which prompted Mr Heales to leave the interview and finish work. Had Mr Heales not done so, Mr Kernohan says he may have given Mr Heales further time to prepare a defence.

On balance, I am satisfied that any shortcomings in the procedures under which Mr Kernohan’s investigation was conducted were not so grave as to amount to a failure to give Mr Heales the opportunity to defend himself against the allegations made.

Conclusion

For the above reasons I will order that the application be dismissed.

I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of Judicial Registrar R D Farrell.

Associate

Date:

The applicant represented himself.

Representative for the respondent:     Ms S. Laferla
  Chamber of Commerce and Industry of   Western Australia

Hearing dates:            20, 21 and 24 November 1995

Judgment date:          21 December 1995