Debra Killeen v Uniting Care Ballarat - [2013] FWC 8656

[2013] FWC 8656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debra Killeen
v
Uniting Care Ballarat
(U2012/17165)

COMMISSIONER RYAN

MELBOURNE, 18 NOVEMBER 2013

Termination of employment - alleged misconduct during participation in an employer organised trip to the Kokoda Trek - reinstatement not appropriate - compensation.

[1] This decision relates to an application filed by Ms Debra Killeen pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by UnitingCare Ballarat was harsh, unjust or unreasonable.

Preliminary Matters

[2] Pursuant to s.396 of the Act the Commission must decide some preliminary matters before considering the merits of the application. Each of the matters raised by s.396 were specifically decided during the hearing on the basis of certain concessions made by UnitingCare Ballarat. 1

Was Killeen dismissed

[3] In addition to the matters raised by s.396 it is also necessary for the Commission to decide another initial matter and that is: Was Ms Killeen dismissed within the meaning of s.386 of the Act? UnitingCare Ballarat’s case in this matter has been conducted on the basis that UnitingCare Ballarat did initiate the termination of the employment relationship. I find that Ms Killeen was dismissed within the meaning of s.386 of the Act.

Background

[4] In 2012 UnitingCare Ballarat organised a group of persons to do a walk of the Kokoda Trek in Papua New Guinea. The entire trip was planned for the period from 10 June 2012 to 20 June 2012 which included travel time from Melbourne to PNG and return. The group comprised 10 persons:

3 employees of UnitingCare Ballarat being Ms Killeen, Mr Ryan Kerr a fellow Drug and Alcohol Intensive Case Manager and co-worker of Ms Killeen and their Manager, Mr Peter Cranage;

2 persons who were to record the event for the purposes of producing a documentary, Mr Jeremy Bannister and Mr Brendan Gullifer;

3 persons representing the clients of UnitingCare Ballarat and who were described by UnitingCare Ballarat as follows: “Patrick Cronin, a recovering drug addict and counselling client of the respondent, Mara Konings, a recovered drug addict and counselling client of the respondent and Dr Mary Hollick, a mother of a recovered addict and counselling client of the respondent”.

1 person who was a paramedic, Mr John Cranage, brother of Mr Peter Cranage, and

1 police officer, Sgt Joanne Graham.

[5] Mr Peter Cranage was in charge of the group but for the purposes of the walk itself the group was led by Mr Gary Traynor from Kokoda Historical, a specialist Kokoda Trek tour operator. Mr Traynor was assisted by a group of Papua New Guineans led by Mr Kila Amuli.

The purpose of the walk was both to achieve the completion of a walk along the Kokoda Ttek and to use that experience to film a documentary. UnitingCare Ballarat described the objective of the trip, which was named the “Collateral Damage” project, as “raising awareness of those affected by alcohol and other drug addictions and associated mental health problems.”

[6] Mr Patrick Cronin’s counsellor was Mr Ryan Kerr. Unlike the client/counsellor relationship existing between Mr Cronin and Mr Kerr there was no client/counsellor relationship existing between Ms Killeen and any of the three clients of UnitingCare Ballarat.

Each of Mr Peter Cranage, Mr Ryan Kerr and Ms Killeen were paid their normal salary whilst on the trip. Of Ms Killeen, UnitingCare Ballarat said:

“...although the environment had changed, the applicant was expected to behave in a manner that was consistent with her duties and responsibilities as an Intensive Case Manager. These duties include supporting the reduction of harm from illicit substance abuse and creating a stable living environment for those with complex needs”. 2

[7] Mr Barclay, Executive Director of UnitingCare Ballarat, identified that the expectations in relation to Mr Cranage and Mr Kerr were that Mr Peter Cranage would lead the trip an Mr Kerr would support his client Mr Patrick Cronin. 3

[8] Prior to the group undertaking the trip Mr Kerr had designed an exercise regimen to ensure that each of the participants had the necessary level of fitness to undertake a walk of the Kokoda Trek. It became apparent during this training that Ms Killeen and Ms Mara Konings were the least fit of the group and that each had pre-existing illnesses or injuries which impacted on their pace of walking. At no stage before the group left Australia did Mr Kerr or anyone at UnitingCare Ballarat deem either Ms Killeen or Ms Konings a risk to themselves or others if they undertook the walk of the Kokoda Trek.

[9] UnitingCare Ballarat assisted the group by providing gym membership to them to use to increase their level of fitness. UnitingCare Ballarat also assisted the group by providing some medications that would be needed and by providing snap lock plastic bags to keep their medications in.

[10] When the group arrived in Port Moresby in the early afternoon on the day before they were to begin the Kokoda Trek walk they were taken to the Hideaway Hotel for one night. Mr Traynor the leader of the walk met the group for the first time at the Hideaway Hotel and he instructed them to reduce the weight of their packs by leaving at the Hideaway Hotel anything which was not essential. The group was to return to the Hideaway Hotel after the walk of the Kokoda Trek. Part of the instructions from Mr Traynor was that each person should review their medications and not to double up with what others were taking. The first instance of alleged serious misconduct by Ms Killeen occurred at this time.

[11] On the day after their arrival in Port Moresby the group was to fly to Popondetta and then travel by road to the commencement of the Kokoda Trek walk. However, when the group arrived at the airport they found that their seating on the aircraft had been double sold and that they could not fly out of Port Moresby on that day. The group was put up at the Grand Papua Hotel, a more salubrious hotel than the Hideaway Hotel, for the night and then flew out of Port Moresby the next day. The effect of this was that the group lost one day off the planned timetable for the Kokoda Trek walk.

[12] At the commencement of the walk Mr Traynor allowed the members of the group to walk the first days walk at their own pace so that he could use the walk along the first part of the Kokoda Trek to assess each walker. Each walker was accompanied by a Papua New Guinean who would act as a porter if the walker had difficulty carrying their pack or any difficulty with the walk. Mr Traynor made clear that even on the easiest part of the first days walk that Ms Killeen and Ms Konings were significantly slower than the others but still capable of walking the Kokoda Trek.

[13] Given that a purpose of the trip was to make a documentary Mr Traynor conceded that it would be necessary to allow the cameramen to move ahead of the group to position themselves for filming purposes. However Mr Traynor intended that the group would stay together. This did not happen and it was not from lack of effort on Mr Traynor’s part.

[14] On each day of the walk the men were consistently well ahead of Ms Killeen and Ms Konings, on occasions being up to half a day ahead. In the first four days Sgt Graham moved between the leading group and the last group, but after the fourth day Sgt Graham remained with the other three women.

[15] During the walk further allegations of serious misconduct were made against Ms Killeen.

[16] On returning to Australia Ms Killeen purchased duty free alcohol. A further allegation of serious misconduct was made against her in relation to this.

[17] Towards the end of the walk Ms Killeen had a fall and significantly hurt her knee. Whilst she was able to complete the walk Ms Killeen sought medical attention when she returned to Australia and required surgery on her knee.

[18] After the group had returned to Australia Ms Killeen made complaints about various matters. UnitingCare Ballarat convened a review panel to review all aspects of the project. UnitingCare Ballarat described the brief to the review panel as follows:

“11. The investigation brief was directed at understanding and exploring the planning, preparation and conduct of the Kokoda trip. The investigation panel also sought to identify any incidents resulting from the Kokoda trip which had (or could have), led to significant harm or loss to individuals involved or to UCB as an organisation, to discern any causal human factors that contributed to such incidents and to make recommendations for any necessary change to policies, procedures and staff management.” 4

[19] The review panel interviewed the participants in the Kokoda Trek walk. The review panel made specific recommendations in relation to both Mr Peter Cranage and Ms Killeen. The review panel made a recommendation that UnitingCare Ballarat conduct a full investigation in relation to matters raised against Ms Killeen.

[20] The review panel’s report was considered by the Board of UnitingCare Ballarat on 8 October 2012 and the CEO, Mr Clifford Barclay, considered that further investigation should be undertaken in relation to the behaviour of both Mr Peter Cranage and Ms Killeen.

[21] Mr Barclay wrote to each of Mr Peter Cranage and Ms Killen on 18 October 2012 with each letter posing a series of questions to the recipient and requiring the recipient to answer by no later than 29 October 2012.

[22] Mr Peter Cranage responded on 29 October 2012 and Mr Barclay met with Mr Cranage on 31 October 2012. As a result of that process Mr Barclay issued Mr Peter Cranage with a formal warning for his conduct whilst on the Kokoda Trek walk.

[23] Separate to the complaints investigated by the review panel, Mr Patrick Cronin submitted a formal grievance to UnitingCare Ballarat on 30 July 2012 in which he made allegations against Ms Killeen. Whilst the formal grievance of Mr Cronin was not before the review panel it is clear from the findings made by the review panel that a similar allegation was put to them and that the review panel included that matter in their report. Mr Barclay only became aware of the Mr Cronin’s complaint on 24 October 2012, after Mr Barclay had sent the letter to Ms Killeen on 18 October 2012. On 25 October 2012 Mr Barclay forwarded a copy of Mr Cronin’s complaint to Ms Killeen’s solicitor and requested that Ms Killeen respond to the complaint of Mr Cronin as part of responding to the questions posed in the letter of 18 October 2012.

[24] Ms Killeen requested an extension of time to respond to the new allegation and responded to Mr Barclay on 2 November 2012. Mr Barclay considered the response and made further inquiries and on 12 December 2012 wrote to Ms Killeen setting out his preliminary findings and his “preliminary conclusion that the findings warranted termination of Debra’s employment and invited a response to those findings.” Ms Killeen’s solicitors responded on her behalf and made it clear that “There is no point in providing you with a response when you have denied natural justice to my client and have acted in a manner that is below the standard normally expected of a fair and reasonable employer by stating your intention to terminate employment.”

[25] Mr Barclay wrote to Ms Killeen on 20 December 2012 terminating her employment.

The Proceedings

[26] Proceedings in this matter covered 6 hearing days, 15 and 16 May, 22 and 23 July and 23 and 30 August 2013. Evidence in support of Ms Killeen’s application was given by Ms Killeen, Sgt Joanne Graham, Ms Mara Konings, Dr Mary Hollick and Mr Gary Traynor. Evidence in support of UnitingCare Ballarat’s case was given by Mr Patrick Cronin, Mr Ryan Kerr, Mr Peter Cranage, Mr Clifford Barclay and Ms Marie Harris.

[27] During proceedings Ms Killeen was represented by Mr M. Addison and UnitingCare Ballarat was represented by Ms C. Symons.

Consideration

The Termination Letter and Reasons for Dismissal

[28] The letter issued to Ms Killeen on 20 December 2012 described the reasons for dismissal as follows:

“It is simply unacceptable for a Uniting Care Drug and Alcohol worker to offer prescription medication to a client with a history of difficulties with that very same medication. This is made even worse, if that is possible, given the remote location at which this occurred. Not only are you not qualified to dispense such medication, you put the client, the project and the agency at risk in doing so. I am also now unable to trust you given the conclusions I have reached about the response you provided during the investigation. To perform a role in Intensive Case Management where everyday you are working, often alone, with people with complex drug and alcohol and mental health issues you need good insight, judgement, professional boundaries and integrity and unfortunately this episode demonstrates you lack of four.”

[29] As outlined above the letter of termination gave final effect to a preliminary conclusion reached by Mr Clifford Barclay that dismissal was justified. In his letter to Ms Killeen dated 12 December 2012 Mr Barclay identified the allegations against Ms Killeen as follows:

“2 Possession of alcohol

You claim in your Response that you did not purchase alcohol to bring back to Australia. This is inconsistent with the evidence provided by other participants and your statements to the Panel previously.

I am informed by the members of the Panel that you previously stated that you had purchased alcohol to bring back to Australia, and that you were able to recall the bottles and their sizes. You later admitted that you asked Mary to carry a bottle of alcohol.

On the balance of probabilities, I am satisfied that this allegation can be proven.

The act of purchasing alcohol and asking a client to transport it on your behalf is inappropriate and displays poor professional judgement, but is not otherwise of serious concern.

However, I consider that you have been untruthful and/or deliberately evasive in providing your answer in the Response. Your statements to the Panel directly contradict your statement in the Response on the issue of whether you purchased any alcohol at all to bring back to Australia. It is also in contradiction with what other witnesses have reported to the Panel.

The failure to provide full and frank answers in your Response is of serious concern, particularly in light of the direction contained in my letter dated 25 October 2012 which stated:

“Failure to respond to all questions in a full, frank and truthful matter, including providing all details or reasons as to why you cannot provide full details, will be considered a failure to comply with a lawful and reasonable direction and may, of itself, be a basis for the termination of your employment.”

3.2 Being affected by medications

Based on the information provided to me, I have been unable to reach a conclusion about whether you were adversely affected by any form of medication during the trip.

However your Response in this regard was evasive and unsatisfactory, and I consider that you failed to provide answers in a full, frank and truthful matter contrary to my direction by deliberately omitting or failing to provide details of your use of medications in questions 3.2.2 and 3.2.4 of the Response.

The Report lists the medications you possessed as including:

“Endone (a prescription narcotic), Temazepam (a hypnotic/sedative/sleeping pill),injectable cortisone, lmigran (active ingredient is sumatriptan, a serotonin agonist with an analgesic effect) and several over-the-counter medications ... “

In the context of the trek and the potency of some of the medications, it was reasonable to ask you about the purpose for which you were prescribed these medications. In this regard I also note that you previously provided the Panel with conflicting information about your possession of Endone, saying at one stage that you had been prescribed the medication for your injured knee, and at another stage that the Endone was from an old prescription approximately two years ago.

I also have concerns that may you failed to take reasonable care of your own health and safety. In the current circumstances, you have claimed that these medications were prescribed to you, however you refuse to explain why they were considered necessary when you were about to undertake a strenuous and potentially dangerous activity in a remote location.

3.3 Offering medication to others

Patrick Cronin claimed that you offered him Valium to assist if he needed any help sleeping in the hotel room in Port Moresby. This allegation has been denied by you.

Based on the evidence available, I am satisfied that this allegation is proven on the balance of probabilities. Patrick’s grievance was made of his own violation and without prompting from any person. There has been no suggestion by anyone as to what Patrick’s motivation might be other than he was upset by what had happened. Patrick’s complaint is consistent with what he told the panel in the questionnaire and with what he told worker Ryan Kerr on the night.

Apart from the particular allegation by Patrick above, I have not been provided with sufficient information to reach a conclusion that you offered any other person prescription medication.

I consider that the finding in clause 3.3 above requires disciplinary action as it represents conduct which falls far short of that expected of an experienced Intensive Case Manager. Your conduct had the potential to seriously damage the reputation of UnitingCare Ballarat, had the potential to create a risk to the health and safety of one of UnitingCare Ballarat’s clients and was unlawful in its own right.

In addition, I consider that your failure to provide full, frank and/or truthful answers to the allegations in clauses 2 and 3.2 above is a breach of lawful and reasonable direction to you in the letter dated 25 October 2012 and requires disciplinary action.”

The Allegation that Killeen offered prescription medication to a client of Uniting Care Ballarat

[30] The allegation that Ms Killeen offered prescription medication to a client of UnitingCare Ballarat relates primarily to Mr Patrick Cronin but also includes Ms Mara Konings.

[31] The allegation has two distinct aspects. Firstly, Mr Patrick Cronin alleged that Ms Killeen had offered him prescription medication on the first night that the group were in PNG and staying at the Hideaway Hotel. Secondly, Mr Patrick Cronin also alleged that Ms Killeen had offered prescription medication to others in the group during the walk of the Kokoda Trek. Mr Patrick Cronin particularised his allegations on several occasions including whilst giving oral evidence to the Commission.

[32] I will deal with each aspect separately.

The Hideaway Hotel incident

[33] On 30 July 2012 Mr Patrick Cronin lodged a formal grievance with UnitingCare Ballarat which included the following:

“The facts as stated by the Complainant

Having arrived at the hotel & after we all had dinner everyone went back to their rooms. Ryan & I locked our door pass in our room and whilst we were waiting for reception to assist Deb came out & started a conversation, she appeared to be very hyper, very talkative. Whether if it was the influence of alcohol or another substance I can’t be sure. The subject of sleep came up due to the humidity and expected sleeping troubles. Deb pulled out a bag of mixed pills bragging she had “everything’ in the bag whilst waving it around while laughing and smiling. To me she appeared to be ‘spaced out’. She said she had “lots” of Valium if anyone needed help sleeping. I myself have had severe problems in the past with valium and other pills to cope with ‘weed’ withdrawal. Therefore it made me angry and uncomfortable.

Feeling expressed by the Complainant (as a way of helping to separate the emotional content from the facts)

having previously quit ‘weed’ it wasn’t productive for me with “valium” (former copeing drug I used) getting mentioned by Deb so often it became frustrating, disappointing as well as inappropriate due to the cause of the trek/doco. I wasn’t having any withdrawals until Deb was mentioning Valium constantly. Although I ignored it the best I could so I could concentrate on my own personal goal & challenge. Overall it made me feel frustrated, angry, disgusted & uncomfortable to be around Deb, therefore I tried to distance myself from her the best I could.” 5

[34] Under cross examination Mr Cronin conceded that the version of events recounted in the above formal complaint was likely to be more accurate than the version of events recounted in his later witness statement.

[35] The version of events recounted by Mr Cronin in his formal complaint in July 2012 is quite implausible.

[36] There is considerable evidence of the chain of events occurring at the Hideaway Hotel around the time of the incident as alleged in Mr Cronin’s formal complaint. There is consistent evidence that Ms Killeen and Sgt Graham were in their room sorting their bags including sorting their medications. Ms Konings and Dr Hollick were also present in the room. Photos taken clearly show Ms Killeen and Sgt Graham with their medication bags on their beds. 6 Mr Kerr and Mr Cronin arrived at the room because they had locked themselves out of their own room. A photo taken at the time clearly shows Mr Kerr and Mr Cronin in the room occupied by Ms Killeen and Sgt Graham.7 All of the persons then left the room and Mr Kerr took some group photos of the females outside the rooms. The photos clearly show both Ms Killeen and Sgt Graham standing in their sleeping bags and with Ms Killeen holding a bottle of water with one hand.8

[37] According to the formal complaint made by Mr Cronin in July 2012 Ms Killeen “pulled out a bag of mixed pills bragging she had “everything’ in the bag whilst waving it around while laughing and smiling. To me she appeared to be ‘spaced out’. She said she had “lots” of Valium if anyone needed help sleeping.”

[38] No one supports Mr Cronin’s allegation. For Ms Killeen to have “pulled out a bag of mixed pills” she would have had to pull it out of her sleeping bag. No one else present supported Mr Cronin’s allegation that this occurred. The photographic evidence shows that bag of medications that Ms Killeen had on her bed was quite large. It is not plausible that if Ms Killeen “pulled out a bag of mixed pills” from her sleeping bag in the presence of Mr Cronin outside the rooms that someone else present would not have noticed.

[39] On 28 April 2013 Mr Patrick Cronin prepared a witness statement for these proceedings and in that statement he described the incident at the Hideaway Hotel in the following terms:

“Allegation of offering Valium

7 At the motel in Papua New Guinea, two nights before we left for the Kokoda Trail itself, I was sharing a room with Ryan and we were trying to get used to the climate, which was hot and humid. At one point we locked our keys in our room. While we were waiting outside our room for reception to come and unlock our door, I was having a cigarette, and Debra Killeen came out of her room and started a brief conversation. Ryan and I walked over to Debra Killeen and Joanne Graham’s room and stood in the doorway to talk to them. Both Joanne and Debra seemed very talkative and hyperactive and a bit ‘loopy’. I thought they may have been drunk because the only time I have seen people acting that way is when they are drunk or on drugs.

8 After the receptionist came up with the keys to our room, Ryan went back to our room. I was still smoking a cigarette, so stayed behind to talk a little more with Debra and Jo. Debra and Jo were going through their bags, and I saw Debra had a clear freezer bag full of medications. I think I saw 10 to 15 different sorts of medications in the bag. Debra held up the bag and waved it and said she had everything there.

9 I recognised some of the medications in the bag. They were mostly in the slideout foil packets. I could see labels for hayfever tablets. I recognised the diarrhoea and malaria pills because I had the same medications for the trip. I also recognised what appeared to be painkillers and Valium from my past experience with those drugs. I am confident that Debra did in fact have Valium as I had overheard her mention she had Valium at either Melbourne or Brisbane airport at the start of the Kokoda trip.

10 Jo was also packing her bag and mentioned that she had some medications including Xanax in her pouch, which was a black bag and not see-through. Jo was not waving her medications around in the same way that Debra was though.

11 Debra and Jo were both sitting on their beds and I was standing in the doorway. Our conversation continued for a little while about nothing in particular, it was just chit-chat. I remember at one point saying something like that it would be an interesting night because I was not used to the heat and the air conditioning in Ryan and my room was not working. Debra said something like “If you need help sleeping, come and see me.”

12 In the context of the conversation and Debra showing me her bag of medications just before, I took Debra’s comment to mean that she was offering to give me a sleeping tablet, namely Valium, if I wanted it.

13 At that point I left and said I had to go pack. I went back to Ryan and my room a bit fired up and pissed off because I had made an effort to get off drugs for the trip and someone was waving medication around and bragging about how much she had. I felt that the offer was offensive to me given my history with drugs including Valium.” 9

[40] Mr Patrick Cronin was extensively cross examined on his account of what happened at the Hideaway Hotel.

[41] In his oral evidence Mr Patrick Cronin repeated that Ms Killeen was waving a bag of prescription medication around and that Ms Killeen offered Mr Cronin prescription medicine. 10 Mr Cronin also repeated the allegation that Sgt Graham had the prescription medication Xanax with her and that she identified it as Xanax.11

[42] There is a real and significant difference in the allegation made by Mr Cronin in his complaint on 30 July 2012 and the allegation made in his witness statement dated 28 April 2013 and in his oral evidence. The differences are quite stark. In his first complaint Mr Cronin describes an event that happened while Mr Cronin and Ms Killeen were both outside their rooms and where Ms Killeen “pulled out a bag of mixed pills bragging she had “everything’ in the bag whilst waving it around while laughing and smiling. To me she appeared to be ‘spaced out’. She said she had “lots” of Valium if anyone needed help sleeping.” Yet in his witness statement and in his oral evidence Mr Cronin alleges that Ms Killeen was in her room when she waved a bag around and offered him medication.

[43] Mr Cronin’s evidence was supported in part by Mr Ryan Kerr. It is very clear that Mr Kerr repeats the same allegation against Ms Killeen, namely that she was waving a bag of medication and saying she had everything in there.

“PN2944. Mr Addison: Were you present when Patrick alleges that he was offered or – let me be precise – when he says Debra held up a bag and waved it and said she had everything? Were you present when that was done?---Mr Ryan Kerr: Yes, I think what he’s referring to was when Deb was sitting on her bed and she had a bag of her medication but I don’t - - -

PN2962. MR ADDISON: Patrick says that at some point Debra held up a bag and waved it and she said she had everything there. I’m putting it to you that you didn’t see that. You either weren’t there or it didn’t happen?---I remember something to that effect but it was – I believe it was more of a joke that Deb made, like as if, “Oh, yeah, I’ve got everything in here,” nothing to be meant by it as far as something she wasn’t allowed to have. I think that’s what Pat took from that.

PN2963. Why isn’t it in your witness statement? Why haven’t you mentioned that in your witness statement?---Because I really don’t think it was something that Deb did in a way that should incriminate her in any way. I think it was more of just sarcastic comment and I said the same to Pat when he came back to the room when he mentioned that.

PN2964. Mr Kerr, you’ve known about this matter since June last year, haven’t you?---Yes.

PN2965. When did you put your witness statement for these proceedings together?---A couple of months ago.

Well, they weren’t filed until about a month ago?---About a month ago, yes.

PN2966. Okay. You knew what Patrick was saying about waving plastic bags around and saying, “Everything’s in here.” You have made statements in your witness statement at paragraphs 47 and 48 which are significantly damning to the applicant in this case. They deal with this allegation of offering prescription medicines. I put it to you it’s not credible for you to sit there and give the answers that you’ve given of saying you saw it but you didn’t put it in your witness statement. I put it to you that’s not credible. I put it to you you’re lying about that?---I’m not lying at all.”

[44] The Outline of Final Submissions of the Respondent contained the following:

“Whilst Mr Kerr acknowledges that he was not in the room at the time of the alleged offer of drugs by the applicant to Mr Cronin, Mr Kerr did give evidence that he observed a clear plastic bag of medication on the applicant’s bed at the Hideaway Hotel and that he recalled the applicant holding up a bag and waving it and saying, she had ‘everything in there’.”

[45] Rather than corroborate the evidence of Mr Cronin the reality of Mr Kerr’s evidence is that it is very different from Mr Cronin’s evidence and very different from the evidence of Ms Killeen and Sgt Graham.

[46] Mr Kerr’s evidence is that while he was in the room with Mr Cronin and Ms Killeen and Sgt Graham and Ms Konings and Dr Hollick that Ms Killeen was waving a bag of medication and saying that she had everything in there. No one else, not even Mr Cronin, alleges that Ms Killeen was waving around a bag of medication and saying that she had everything in there whilst Mr Kerr was present.

[47] Mr Cronin’s witness statement and oral evidence is that Ms Killeen was waving a bag of medication around and saying she had everything in there when he was standing in the doorway to the room shared by Ms Killeen and Sgt Graham and that this occurred after Mr Kerr had returned to his room.

[48] Finally Mr Cronin’s evidence was that the recount in his formal complaint was more likely to be true.

[49] The evidence of both Mr Cronin and Mr Kerr would have Ms Killeen waving around a bag of medication on two separate occasions in the one night and on each occasion saying that she had everything in there.

[50] Mr Kerr’s evidence on this point was not included in his written witness statement but was offered for the first time whilst he was under cross examination. The oral evidence of Mr Kerr on this point has every appearance of being created to support Mr Cronin’s evidence whilst at the same time minimizing the damage to Ms Killeen.

[51] Whether or not Sgt Graham had Xanax was an irrelevancy in relation to the alleged misconduct of Ms Killeen. However, the allegation that Sgt Graham had Xanax and identified that she had Xanax is part of the narrative of events as described by Mr Cronin in his evidence.

[52] Both Ms Killeen and Sgt Graham gave a very different account of what happened at the Hideaway Hotel. Ms Mara Konings and Dr Mary Hollick and Mr Ryan Kerr also gave evidence as to events at the Hideaway Hotel.

[53] If the contest of evidence was only between Ms Killeen and Mr Cronin or even between Ms Killeen and both Mr Cronin and Mr Kerr it may have been more difficult to resolve.

[54] However Sgt Graham has no interest whatsoever in the employment or otherwise of Ms Killeen by UnitingCare Ballarat and no connection with any of the participants in the Kokoda Trek walk other than for this particular walk. Sgt Graham’s evidence is absolutely contradictory to the evidence of Mr Cronin.

[55] Very importantly this is not a contest between the evidence of a police officer and the evidence of a reformed drug user. It is not a case where a police officer’s evidence is more likely to be truthful and a former drug user’s evidence is more likely to be less truthful.

[56] The important aspect of this part of the matter is that Sgt Graham is independent of both Mr Cronin and Ms Killeen and of the employees and clients of UnitingCare Ballarat.
Sgt Graham did not prepare a witness statement in this matter. Sgt Graham only gave evidence in this matter as a result of an Order to Attend being issued by the Commission at the request of the Ms Killeen’s solicitor.

[57] Sgt Graham emphatically denied that she had Xanax with her on the Kokoda Trek walk and that she mentioned having Xanax. 12

[58] Sgt Graham denied that Ms Killeen was waving a bag of medication around 13 and Sgt Graham specifically denied that there was any mention of drugs or prescription medicines whilst Mr Cronin was in the room at the Hideaway Hotel.14

[59] In every respect I prefer the evidence of Sgt Graham over the evidence of Mr Cronin and Mr Kerr. The evidence of Sgt Graham is consistent with the evidence of Ms Killeen.

[60] The two conclusions to be drawn from the evidence is that, firstly, Ms Killeen was not waving a bag of prescription medication around, either whilst Ms Killeen and Mr Cronin were outside the rooms or whilst Mr Kerr and Mr Cronin were in the room shared by Ms Killeen and Sgt Graham or whilst Mr Cronin was in the doorway of the room that Ms Killeen was sharing with Sgt Graham and that, secondly, Ms Killeen did not offer any of her prescription medications to Mr Cronin.

During the walk incident

[61] On 30 July 2012 Mr Patrick Cronin lodged a formal grievance with UnitingCare Ballarat which included the following:

“The facts as stated by the Complainant

On about day 5 or 6 of the trek, roughly 7.30am while preparing for the days walking, I overheard one of the co-walkers say they have been having trouble sleeping at night. Deb then quickly mentioned under her breathe that she still had heaps of Valium if they needed it. From my past with drugs and drug dealing that is basically offering the drug therefore its a form of “dealing”. During the 9 day trek I heard Deb mention valium & quotes referring to it no less than 15 odd times for me it has incredibly frustrating & disappointing that someone brought those pills on the trek.”

[62] This incident was not specifically dealt with in Mr Cronin’s witness statement, Exhibit R5, but Mr Cronin was cross-examined on this and identified Ms Mara Konings as the co-walker. 15

[63] Both Ms Killeen and Ms Konings gave evidence which was directly contradictory to the evidence of Mr Cronin. Ms Konings was specifically challenged in cross examination as to her preparedness to give whatever evidence was favourable to Ms Killeen regardless of its truthfulness. This followed a clear admission from Ms Konings that some of her evidence was not completely accurate.

“PN2035. Ms Symons: You then say, “Deb and I were with each other from the moment we stepped on and off the plane. We even went to the toilet together”?---Ms Konings: Yes.

PN2036. Is that really accurate?---Yes. That’s no word of a lie.

PN2037. But isn’t it your evidence that on at least three nights you weren’t even sharing the same room with her?---I thought it was on the trek that they’re saying - - -

PN2038. Well, no, I don’t think you did. If you read it, “At no stage can I honestly and truthfully say did I see Deb or Patrick alone throughout the trip.” There is a distinction?---All right. Okay. So while we - okay.

PN2039. So really what you say there is not completely accurate, is it?---Okay. It’s not then, if you say it like that, no.

PN2040. And it’s obviously evidence that, if accepted, is very favourably to Ms Killeen?

---No. It’s the truth. It’s what I’ve seen.

PN2041. But what you’ve seen has limits?---Okay.

PN2042. We can already exclude at least three nights during the trip when you weren’t with her?---Okay.

PN2043. You’ve already said that you can’t account for at least one hour on the night in question?---Okay.

PN2044. At the Hideaway Hotel?---Right.

PN2045. Where you weren’t in the room with Debra or Jo?---Okay.

PN2046. All right?---Yes.

PN2047. So in putting these types of assertions into your statement, it does suggest that you’re prepared to put in whatever is going to assist Ms Killeen?---No, I put it as I thought. I wouldn’t even have imagined anything like this was going to happen, anyway, so I have no reason to lie. I just - the trek - we were together the whole time, so - and, yes, toilet breaks and all. All right, I didn’t say that we were, you know, at the Hideaway or the motel. A mistake on my part, obviously.

PN2048. That was the most significant part of all of this?---Well - - -

PN2049. And you knew that?---No.

and

PN2053. What I’m suggesting is that you were prepared to take liberties with your evidence and the reason that you were prepared to do that was because of your friendship with Ms Killeen?---No. I’ve told the truth and that’s all I can do.

PN2054. All right. Well, you’ve told the truth now when it has been put to you, but it was a qualified truth before?---Well, all I can say is, you know, if I’ve made a mistake - obviously I have in the way I’ve worded stuff. Obviously that’s my mistake, but I’m not lying about anything. Just because there’s a friendship, it doesn’t mean that I’m going to protect someone. If she did wrong, I’m certainly not going to protect her.

PN2055. But you’re also pretty angry with people in the respondent, aren’t you?---Yes.

PN2056And you’d like to see the respondent lose its case?---No. I’ve got nothing against Patrick. Is that who you meant?

PN2057. The case is not against Patrick. The case is against UnitingCare Ballarat?

---Okay. Well, why would I? I don’t mean anyone any harm. I’m angry in the fact that - the way I was used in this whole situation. A handful of guys can go on holidays; that’s all it was. I don’t have any grudges against UnitingCare. I’m angry in the situation, the way it happened, but I’m certainly not going to lie for Deb or for anyone. That’s all I can say.”

[64] I accept Ms Konings’ response that she was presenting truthful evidence under oath. Ms Konings’ admission of the error in her written witness statement enhances rather than undermines her credibility as a witness in this matter.

[65] UnitingCare Ballarat, in its Outline of Final Submissions of the Respondent, sought to rely on Mr Kerr’s evidence in cross examination as supporting the evidence of Mr Cronin on this point. Mr Kerr’s evidence was as follows:

“PN3465. Mr Addison: Yes. There’s an allegation of Patrick’s that on fourth or fifth day whilst people were breaking camp that he stayed behind whilst the rest of the male participants headed off?---Mr Kerr: Yes.

PN3466. And there’s an allegation from Patrick that he heard the applicant say to Mara, I think it was, “If you’re having trouble sleeping I’ve got a couple of Valium” or words to that effect. Do you recall that?---I recall Pat mentioning it, yes.

PN3467. You didn’t witness that, did you?---No.

PN3468: Patrick told you that?---Yes.”

[66] This evidence had not been part of Mr Kerr’s witness statement, Exhibit R3.

[67] If true, the evidence of Mr Kerr establishes no more than that Mr Cronin made the alleged comment to Mr Kerr. Given other observations about Mr Kerr’s evidence made elsewhere in this decision I am not convinced that Mr Kerr’s evidence on this matter can be relied on.

[68] I prefer the evidence of Ms Killeen and Ms Konings over that of Mr Cronin.

[69] Whilst Mr Barclay acknowledged in his letter dated 12 December 2012 to Ms Killeen that “Apart from the particular allegation by Patrick above, I have not been provided with sufficient information to reach a conclusion that you offered any other person prescription medication” it was clear in the way in which UnitingCare Ballarat conducted its case that the allegation that Ms Killeen offered Valium to Ms Konings during the Kokoda Trek walk was being pursued and was sought to be proved.

[70] The conclusion I draw from the evidence is that Ms Killeen did not offer Ms Konings any prescription medicine during the Kokoda Trek walk.

The Allegation that Ms Killeen failed to provide full, frank and/or truthful answers during the investigations.

[71] As can be seen from the contents of the letter from Mr Barclay to Ms Killeen dated 12 December 2012 the allegation that Ms Killeen failed to provide full, frank and/or truthful answers related to two issues raised during the investigation undertaken by UnitingCare Ballarat into the Kokoda Trek walk, namely: Possession of Alcohol and Being affected by medications. The specific allegations against Ms Killeen in relation to each issue were expressed as follows:

“Possession of Alcohol

I consider that you have been untruthful and/or deliberately evasive in providing your answer in the Response. Your statements to the Panel directly contradict your statement in the Response on the issue of whether you purchased any alcohol at all to bring back to Australia. It is also in contradiction with what other witnesses have reported to the Panel.

The failure to provide full and frank answers in your Response is of serious concern, particularly in light of the direction contained in my letter dated 25 October 2012 which stated:

“Failure to respond to all questions in a full, frank and truthful matter, including

providing all details or reasons as to why you cannot provide full details, will be

considered a failure to comply with a lawful and reasonable direction and may, of

itself, be a basis for the termination of your employment.”

Being affected by medications.

Your Response in this regard was evasive and unsatisfactory, and I consider that you failed to provide answers in a full, frank and truthful matter contrary to my direction by deliberately omitting or failing to provide details of your use of medications in questions 3.2.2 and 3.2.4 of the Response.

The Report lists the medications you possessed as including:

“Endone (a prescription narcotic), Temazepam (a hypnotic/sedative/sleeping pill), injectable cortisone, lmigran (active ingredient is sumatriptan, a serotonin agonist with an analgesic effect) and several over-the-counter medications ... “

[72] When the participants in the Kokoda Trek walk returned to Australia UnitingCare Ballarat convened a review panel to conduct an investigation into the walk and into various participants’ complaints about the walk.

[73] The review panel comprised three persons. The lead reviewer was Mr Tony Carden an external consultant engaged by UnitingCare Ballarat to conduct the review. The two other reviewers were Ms Marie Harris a member of the Board of UnitingCare Ballarat and Ms Kellie Dunn, Manager of Lifeline and Family Counselling teams at UnitingCare Ballarat.

[74] Ms Marie Harris gave evidence in relation to the review panel.

[75] Following the presentation of the report of the review panel to UnitingCare Ballarat Mr Barclay wrote to both Mr Peter Cranage and Ms Killeen seeking responses to a series of questions.

[76] Mr Barclay gave evidence that after receiving the report from the review panel that he had discussions with each of the members of the review panel. Mr Barclay described the views expressed by the three review panel members as follows:

● “but the conversations I had with the three panel members, they all said to me there was issues with dishonesty and the sort of - when I asked examples, it was like the Endone example, Kellie talked about Debbie changing her story all the time. So for me, going and asking the panel members what they felt was - I don’t know how else I could have done it.” 16
● “I’m saying what they were saying. They were saying that they hadn’t seen anyone as dishonest in their life. That’s what they said to me.” 17
● “Mr Addison: You said that they said to you that they had never seen anybody as dishonest as the applicant in their lives?---Mr Barclay: That’s what Marie said to me.” 18
● “That’s what Marie said to me, and Kellie said that she was a big liar.” 19

[77] Whilst this may in part explain Mr Barclay’s attitude towards Ms Killeen and his decision to terminate her employment the position of the members of the review panel may not be as described by Mr Barclay.

[78] In the proceedings in this matter Ms Marie Harris gave her evidence before Mr Barclay gave his evidence. After Mr Barclay had given his evidence as to the views expressed to him by the review panel members the Commission recalled Ms Harris and put to her Mr Barclay’s evidence.

“PN7011. THE COMMISSIONER: Ms Harris, if I take you to the transcript. My Associate has just handed you some pages out of a transcript. If I can take you to paragraph PN5785. (Indistinct). Can you read from 5785 through to 5794?---

Ms Marie Harris: I’m sorry, what was the end paragraph?

PN7012. From 5785 through to 5794?---I see.

PN7013. Have you got the right page in front of you?---Now I have, thank you.

PN7014. At 5794 the answer from Mr Barclay at that point says, “That’s what Mara said to me.” I am taking that it’s Marie on the basis that Mara was not part of the interview panel and that it’s simply just a poor transcription of what was actually said. In which case the comments relating or the answers given by Mr Barclay at 5785 through to 5794 all suggest or make it very clear that the panel members including yourself, and there is specific reference to you there, considered that the applicant was very dishonest. Is that a correct - - - ?---These words totally surprise me. I would never have said anything like what is put down there and I mean I really reported at the last hearing exactly the way I felt things were and I don’t think that’s a good representation of it.

PN7015. Yes. You’re being recalled because this language wasn’t put to you when you were in the witness box and I am wanting to put it to you. Did you say or express the views that are attributed to you by Mr Barclay in those paragraphs?---I never used the word “liar” so I really don’t feel that anything like that would have been said. We probably spoke about dishonesty.

PN7016. At paragraph 5787 Mr Barclay says, “I’m saying what they were saying. They were saying that they hadn’t seen anyone as dishonest in their life.” That is attributed to “they” as the three on the panel, is that attributed to you? Is that a statement that you said to Mr Barclay?---I can’t recall saying those words at all to Mr Barclay. I feel that I would have just expressed the feeling of dishonesty in some way but certainly not as strongly as they are written down here.”

[79] The evidence of Ms Harris makes clear that Mr Barclay’s evidence strongly misrepresented the position of Ms Harris as a review panel member. On this particular aspect of the matter I prefer the evidence of Ms Harris. The evidence of Ms Harris also calls into question whether the evidence of Mr Barclay as to the views expressed to him by Ms Kellie Dunn and Mr Tony Carden are accurate.

[80] I conclude that Mr Barclay was prepared to strongly misrepresent the views of the review panel to the Commission in order to bolster his own evidence and to advance the position of UnitingCare Ballarat.

[81] Before dealing with the specific allegations made against Ms Killeen it is important to consider the conduct of the review panel.

[82] As noted earlier in this decision the brief from Uniting Care Ballarat to the review panel was described by UnitingCare Ballarat as:

[83] In August 2012 the review panel wrote to each participant asking them to complete a questionnaire and attend an interview. The questionnaire was as follows:

“UNITINGCARE BALLARAT KOKODA TREK JUNE 2012 EVALUATION QUESTIONNAIRE

Please answer all questions as best you can, if you require more space please attach additional pages clearly numbering each question. Your responses will be treated with strict confidentiality.

1. In the lead up to the trek ....

1.1 What was your understanding of the purpose of the trek and how did you arrive at that understanding?

1.2 What were your motivations for undertaking the trek?

1.3 Who did you understand to be leading the trip, how did you arrive at that understanding and what were your expectations of the leader?

1.4 During the pre-trip phase, were you satisfied with the preparation Information that was provided? If not, what steps did you take to rectify this? ·

1.5 How many planning meetings did you attend In the pre-trip phase? To your knowledge, were minutes of those meetings taken?

1.6 Were you aware of the minimum recommended pre-trip training program and, if so, did you complete it? If not, why not?

1.7 Immediately before the trek, were you satisfied with your own preparation?

1.8 Did you raise any concerns about the trek in the pre-trip phase? If so, with who? Were you satisfied with the response?

2. During the trek ...

2.1 Were your expectations of your role, the roles of others and the nature of the trek met? If not, please provide details.

2.2 Did your pre-trip expectations about the level of challenge prove accurate? If not, why not?

2.3 Did your pre-trip expectations about your ability to meet those challenges prove accurate? If not, why not?

2.4 Did any Incidents occur during the trek resulting in harm to you or to others? If so, please provide details.

3. After the trek ...

3.1 What if any, do you feel were the negative aspects of your trek experience?

3.2 What If any, do you feel were the positive aspects of your trek experience?

3.3 To what extent, if any, were your personal aims in undertaking the trek met? Please provide details.

3.4 What, if anything, did you learn from your trek experience?

3.5 Is there anything else that you’d like to share with the review panel that you think may be relevant?”

[84] Ms Killeen completed the questionnaire and returned it to UnitingCare Ballarat. Ms Killeen had an interview with the review panel on 31 August 2012. The interview went for 45 minutes which was the same amount of time allocated to each interview. 20

[85] The review panel prepared a set of questions for each interview. Ms Harris’s evidence was that there was “a set of more specific questions for the individuals, which were constructed from the replies to the questionnaire.” 21

[86] These “more specific questions” were not advised to persons before they attended the interview and the person being interviewed was given no opportunity to prepare for the interview. Rather, as each person attended their interview, the review panel would commence asking the questions they had prepared for that person. Interestingly, Sgt Graham did not return her completed questionnaire before the interview and the review panel first sighted her completed questionnaire when Sgt Graham presented it to the review panel at the interview. Nevertheless, the review panel still proceeded to put its list of prepared questions to
Sgt Graham even though, as Mr Harris conceded in relation to Sgt Graham’s written responses to the questionnaire: “we hadn’t read it, so it was a bit difficult, you know, to really be able to know and interpret what she was saying when she was just there and we were already asking the questions and hadn’t read her questionnaire, her response.” 22

[87] It is clear from the evidence of Ms Killeen and from Ms Harris as well as from the report of the review panel that the specific questions put to Ms Killeen bore no direct relation to the questions asked in the questionnaire. As Ms Killeen expressed it, she felt ambushed by the questions asked at the interview.

[88] In no case did the review panel get the opportunity of asking each interviewee all of the questions that had been prepared in the 45 minutes allotted for each interview.

[89] The review panel did not offer any person a second interview and when Mr Peter Cranage specifically asked for a second interview it was denied him. 23

[90] It is clear from the evidence of Ms Harris that Mr Tony Carden controlled the processes adopted by the review panel including the distribution of material to the other two review panel members. It was Mr Tony Carden who wrote the report of the review panel.

[91] There was relevant information that was available but not before the review panel when they interviewed each person.

[92] Not all of the procedures adopted by the review panel were known to Mr Barclay when he received and acted upon the report of the review panel.

[93] Mr Barclay was aware that the review panel limited each interview to a single 45 minute session but he was not aware that a request from Mr Peter Cranage for a further interview was denied. Nor was he made aware of the fact that the review panel did not have enough time in the 45 minutes allotted to each interview to ask the person the full list of prepared questions.

[94] I will deal with each of the elements of the allegations as to untruthfulness separately.

The possession of alcohol issue

[95] On the issue of alcohol, the comment made by the review panel and question posed by Mr Barclay and the answer given by Ms Killeen was as follows:

“2. Possession of Alcohol

According to several participants, Debra purchased a number of bottles of alcohol in PNG and asked other participants, including Patrick and Mary, to carry them back into Australia for her, apparently in order to circumvent customs regulations.

Q. 2.1 Did you purchase alcohol In PNG?

A. Yes as stated above, I purchased 3 beverages in total whilst in PNG which I consumed responsibly with meals.

2.2 If you did purchase bottles of alcohol:

Q. 2.2.1 In what quantity, and were some or all purchased with the intention of bringing them back to Australia?

A. I did not purchase any alcohol in PNG to bring back to Australia.

(a) if not, for what purpose were they purchased?

A. N/A

Q. 2.3 If you purchased bottles of alcohol, did you request any other person to carry them back to Australia?

A. I did not purchase any alcohol in PNG to bring back to Australia.

Q. 2.3.11f so, describe the circumstances (including times, dates and places) and who was asked?

A. See 2.2.1”

[96] The allegation made by the review panel is not supported by the evidence. Ms Killeen clearly admitted purchasing duty free alcohol on arrival in Australia after the Kokoda trek. 24 Ms Killeen also clearly admitted purchasing two small bottles of duty free alcohol on her trip to PNG which she brought back to Australia unopened. 25

[97] The denial by Ms Killeen to the allegations that she bought bottles of alcohol in PNG to bring back to Australia and that she asked other participants to carry duty free alcohol back to Australia from PNG was simply Ms Killeen telling the truth.

[98] Either the review panel misunderstood what other participants had said or the other participants’ recall of events was innocently or deliberately faulty.

[99] The issues which could properly be raised with Ms Killeen were: (1) whether she asked anyone to carry to PNG duty free alcohol she had purchased in Brisbane; and (2) whether she asked anyone to take through Australian Customs duty free alcohol she was bringing home.

[100] If the correct allegations had been put to Ms Killeen then her evidence was that she asked Mr Kerr to carry 2 small bottles of gin to PNG 26 and that she did not ask anyone to carry duty free alcohol through Australian Customs in the arrival hall at Brisbane.

[101] Mr Barclay in his letter of 12 December 2012 made clear that his allegation of dishonesty was based upon the following:

“I consider that you have been untruthful and/or deliberately evasive in providing your answer in the Response. Your statements to the Panel directly contradict your statement in the Response on the issue of whether you purchased any alcohol at all to bring back to Australia. It is also in contradiction with what other witnesses have reported to the Panel.”

[102] Mr Barclay formed his view by having regard to the statements made to the review panel by Ms Killeen and other participants as against the answers given by Ms Killeen in her written response to questions posed by Mr Barclay.

[103] Unfortunately, there is little evidence as to what statements Ms Killeen or any other participant made to the review panel about the issue of Ms Killeen bringing alcohol into Australia. The report of the review panel contains only one very small reference to this aspect of the matter. At page 9 of the report is a single sentence:

“According to several participants, Debra purchased a number of bottles of alcohol in PNG and asked other participants, including Patrick and Mary, to carry them back into Australia for her, apparently in order to circumvent customs regulations.”

[104] Whilst the report contains the allegation is does not contain the denial made by Ms Killeen.

[105] The only evidence of what took place at the review panel was given by Ms Harris.

[106] In cross examination Ms Harris made a general reference to a feeling that Ms Killeen was dishonest in relation to alcohol:

“PN4891......”The dishonest one related to some of Debra’s answers and it was just the feeling I got from the interview, that she was not being completely honest in ……..her possession and use of alcohol”

[107] Mr Addison for Ms Killeen pressed this issue with Ms Harris in his cross examination 27 to explore the reason for Ms Harris’s feeling that Ms Killeen was dishonest in relation to the issue of alcohol.

[108] The most that can be drawn from Ms Harris’s evidence is that the review panel identified an inconsistency between what had been put to them by Mr Cronin and other participants and Ms Killeen. Whilst Ms Harris admitted that she felt that Ms Killeen was dishonest there appears to no basis for this other than that she and other members of the review panel accepted Mr Cronin’s statement as true.

[109] However Ms Harris specifically rejects the proposition that the review panel accepted Mr Cronin’s word. As Ms Harris said of the position put by Mr Cronin:

“No, I didn’t just accept what I was told. We just noted it down as further needs for investigation. I mean, at a 45-minute hearing it’s very hard to get hard a lot of information at the time. ….So we felt that there needed to be some issues being followed up and that was one of them and then - - - - you know, the different aspects and the truth might really come out, but that was my understanding of the situation just at the interviews.” 28

[110] The evidence of Mr Kerr was that he saw Ms Killeen purchase duty free alcohol on arrival back into Australia. 29

[111] Mr Cronin did not include any reference in his witness statement to any allegation that Ms Killeen asked him to bring duty free alcohol into Australia or through Australian Customs at Brisbane. The most that Mr Cronin says in his witness statement is:

“Debra purchasing duty free alcohol

21 I do not know if Debra asked anyone to take alcohol back from Papua New Guinea. I do remember that she bought some Bombay gin in Brisbane. Debra walked up to me and Ryan at the airport and asked if we could carry two small bottles of gin. We said okay and put them in our backpacks.” 30

[112] Even this evidence is contradicted by Mr Kerr who specifically admitted carrying the two small bottles of gin for Ms Killeen to PNG. 31

[113] It is not surprising that there is a complete disconnect between the comments of the review panel and the answers given by Ms Killeen in her written response to the questions posed by Mr Barclay. But that disconnect does not lead to a conclusion that Ms Killeen was being untruthful or evasive in her answers to the questions posed by Mr Barclay.

[114] Mr Barclay gave evidence as to how he formed the view that Ms Killeen was being evasive even though she answered the questions put to her in writing truthfully. Mr Barclay conceded that he wrote the questions and ran them past his legal advisors who modified some of them before they were sent to Ms Killeen. 32 Mr Barclay’s complaint is essentially that Ms Killeen did not provide a narrative describing what duty free alcohol she purchased and when she purchased it and how it was carried at different times and who carried it at different times.33 Mr Barclay did not ask the right questions and complains of evasiveness on the part of Ms Killeen because she answered the questions asked and did not answer the questions that were not asked. What seems to have escaped Mr Barclay until it was put to him by Ms Killeen’s legal representative was:

PN5439.Mr Addison: And you knew what you had was a lawyer’s answer to lawyer’s question, didn’t you?---

Mr Barclay: I hadn’t thought of it like that, but I suppose that’s correct.

[115] It is impossible to sustain the assertion made by Mr Barclay that “I consider that you have been untruthful and/or deliberately evasive in providing your answer in the Response.”

The conclusion drawn by Mr Barclay is unwarranted and unfounded.

[116] I make one further observation in relation to this aspect of the matter. Ms Harris made notes of her impressions regarding the review panel’s interview with Ms Killeen and in those notes 34 Ms Harris makes the comment that Ms Killeen “firstly denied asking others to carry her alcohol, then admitted that she asked Mary to carry one bottle through customs on way home.”

[117] Ms Killeen’s evidence in this matter was that she did not ask anyone to carry alcohol through customs on the way home. Dr Mary Hollick was not examined on this at all nor was Ms Harris taken to this note in any of the examination of her evidence.

Being affected by medications

[118] As noted earlier Mr Barclay wrote to Ms Killeen asking certain questions arising from the report of the review panel.

[119] The report of the review panel contains the following comments which directly relate to this issue:

“John reports his significant concern in the belief that Debra was adversely affected by drugs during the trek. Peter reports that Mary confidentially expressed similar concerns to him during the trek. Debra emphatically denies being drug affected.

On the evening of the 5th day of walking a group meeting was held at Efogi with all 10 participants along with Kokoda Historical staff in attendance. The aim of the meeting seems to have been to resolve the growing conflict among group members. It appears that this discussion served only to inflame and magnify conflict. Significant features of this meeting, as reported to the review panel, include John Cranage expressing to the whole group his concern about Debra’s drug use and Peter Cranage angrily telling Mara and the other UnitingCare Ballarat clients that they were not clients here and that no duty of care was due them from UnitingCare Ballarat staff.

The group remained fractured for the rest of the walk. Along the way, various participants report that:

• Joanne and Patrick became lost for a while but found the track again

• Gary Traynor tried without success to rein in the men who wanted to speed ahead

• Debra was incensed that, when interviewed by Jeremy and Brendan for the documentary, Brendan asked her about drug use, fitness and injuries

• The women on some occasions were left with the dregs of the evening group meal and last choice among sleeping accommodation at campsites.” 35

“In the absence of consciousness of these risks, not only were no mitigation strategies deployed beyond the presence of ICM’s Ryan and Debra, but behaviours by UnitingCare Ballarat staff and other participants seem to have in fact exacerbated some of these foreseeable risks. There seems to have been little or no serious consideration of potential adverse affects on Pat or Mara of the presence or use of drugs and alcohol by others, including their counsellors.” 36

“Debra’s account of her possession and use of prescription drugs is unconvincing to this review panel as is her claim that she had been medically cleared to undertake the trek. Full investigation of these matters is recommended by this review as is full investigation of Debra’s claims about her knee injury. Debra disclosed that she was in possession of the prescription drugs, Temazepam, Imigran and Endone (along with the others previously mentioned) during the trek. She claims to have concealed the Endone, either to protect Patrick from being tempted by it or to prevent him from stealing it. She claims to have been in possession of 5 Endone tablets but only to have taken one, on the last night of the walk. She claims to have been prescribed Endone by a surgeon to manage pain in her knee and yet disclosed that the tablets in her possession she had had at home since 2010 or 2011. The claim that a Surgeon or Doctor would have prescribed both Endone and injectable cortisone (a very strong anti-inflammatory) at the same time as providing medical clearance for Debra to walk the Kokoda Track seems most unlikely. Yet, this is what Debra has claimed. The review panel were not provided with any documentary evidence of this medical clearance by a Surgeon or GP. Debra acknowledged at interview that she did not provide any information to Kokoda Historical on these medications or her knee injury.” 37

“5. Further investigate Debra Killeen’s knee injury and alleged drug use. If she is to remain in her role, counselling is recommended and could include a focus on:

ethical & professional conduct

risk management

The scope of this review is not sufficient to make any authoritative judgement with regard to the allegations by several other participants that Debra misused drugs in the course of the Kokoda journey. Similarly, any definitive judgement about whether and to what extent Debra injured her knee and whether and to what extent Uniting Care Ballarat might be responsible or liable for any such injury, is beyond the scope of this review. However, the conflicting accounts of participants, the inconsistencies in Debra’s accounts and the seriousness of both issues have convinced the review panel to strongly recommend rigorous investigation of both sets of claims. If, following any such investigation Debra is to continue in her role at UnitingCare Ballarat, then it is recommended that she be provided with training, counselling and supervision in relation to her obligations in the areas of risk management and ethical and professional conduct. Her testimony to the review panel included her own acknowledgement of shortcomings in her understanding of risk management as it applied in this project and of behaviour, belief and habits in relation to alcohol and drug use, which should be of concern to the employer of a person in her role.

6. If Debra is to remain in her role, provide mediation to restore effective working

relationships between she and Peter Cranage and between she and Ryan Kerr

It seems clear from their questionnaire responses and interviews that the main barrier to any restoration of effective working relationships between Debra and Peter and between Debra and Ryan, is lack of trust. For Debra, she reports feeling that Peter not only failed to support her in a way that she expected of her boss, but that he bullied her; failed to protect her from what she saw as abuse when she was challenged by others; was himself abusive toward Mara; and that he behaved in an unprofessional manner. Peter reports feeling that Debra was dishonest in relation to her fitness and injury prior to the trek, was dishonest in relation to her drug use and that she hijacked the trek for her own personal purposes, undermining his project. Ryan reported similar sentiments to Peter that his issue with Debra was about his feeling that she had been dishonest.

Whilst this review is not empowered to go beyond recommending mediation, it does seem evident that mediation could be successful and would rely upon all parties acknowledging to themselves and to each other their own shortfalls in their conduct, and offering apologies to the aggrieved party.” 38

[underlining added]

[120] On the issue of being affected by medications the letter from Mr Barclay with a comment made by the review panel and question posed by Mr Barclay and the answer given by Ms Killeen was as follows:

“3. Possession and use of medications

‘In the presence of various trek participants in the hotel in Port Moresby, Debra made it known that she was in possession of quantities of prescription medication and suggested that she would be willing to provide it to others. Different perspectives have been offered on this episode, but Debra acknowledges that she was in possession of Endone, Temazapan, injectable cortisone, imigran and several over the counter medications.’

I returned to Australia with my prescribed medications.

Based on directions received from Gary Traynor the Trek Leader to discuss our over the counter medications with our roommates and distribute them between first aid kits (over the counter medications and first aid kits were purchased by UnitingCare including prescription medication) between each other to save on weight.

Participants whom I spent approximately 1% of the trek itself in company of, are far from able to provide any accurate assessment apart from mistruth regarding my presentation.

Q. 3.1 Were you in possession of medications during the trip? A full list of medications is as follows;

Q. 3.2 If you were in possession of medications:

Q. 3.2.1 What medications and in what quantities? See 3.1

Q. 3.2.2 If they were prescription medication, when and for what purpose were you prescribed these medications?

A. As per question 3.2.1, It is inappropriate that my sensitive personal medical information be subject to such inquisition.

Q. 3.2.3 Why did you feel you needed to have these medications during the trip?

A. Walking the Kokoda Trail, all advice identified the need to ensure all medical concerns were able to be accessed if required. The appropriate prescribed medications to manage any medical needs in the event such treatment was required were taken.

Q. 3.2.4 Did you use any of these medications during the trip? If so when and In what quantities?

A. Prescription medication was taken as medically prescribed.

I utilised my personal prescribed medication as directed. As per question 3.2.1.

Q. 3.2.5 Were you at any stage affected by these medications? If so, describe the

circumstances [including, times, dates and places).

A. Affected? The pain associated with my serious knee injury sustained was not diagnoses by the paramedic at all, thus no idea of appropriate medication in a manner that altered personality or presentation. No.

I suggest these allegations which have been made against me, are associated with me raising concerns about the trip resulting in the subsequent review process and in fact have no validity at all.

Q. 3.3 Did you at any time offer any medication to another person?

A. No, I was however, asked by Mr John CRANAGE and Mr KERR to provide them with medication, despite voicing my discomfort with doing so in front of other participants.

15.6.12 Templeton’s crossing - Mr John CRANAGE requested I provide Mr Peter CRANAGE with maxalon [anti-nausea) tablets to address his gastro. I identified at such time I did not feel comfortable with providing my prescription medication, however as the medical person on the trip, Mr John CRANAGE directed I do so. This conversation occurred in front of Mrs HOLLICK, Mrs Konnings and Sergeant GRAHAM.

16.6.12 Digger’s Rest- Mr KERR asked me for an anti-inflammatory as he had injured his knee. In consideration of his injury I gave Mr KERR an anti-inflammatory and directed him to consult with Mr John CRANAGE the medical person on the trip

Q. 3.3.1 If so to whom, which medication and in what circumstances [including times, dates and places)?

A. See 3.3” 39

[121] One thing which appears obvious and that is that the quote from the report of the review panel used by Mr Barclay to introduce the questions asked of Ms Killeen doesn’t explain or justify the questions posed by Mr Barclay in his written request to Ms Killeen. However, the questions posed by Mr Barclay to Ms Killeen in his letter of 18 October 2012 make eminent sense in light of the underlined extracts from the report of the review panel set out in paragraph 119 above.

[122] Ms Marie Harris in her witness statement described Ms Killeen’s presentation at the interview conducted by the review panel as follows:

“17. Generally the participants conducted themselves admirably during the interview. However I recall noting at one point that Debra Killeen was “scatty and dishonest” during her interview. I based this assessment on Debra having a clear recollection of some aspects of the trip, but claiming to not remember other parts at all. She also was not able to explain her actions satisfactorily in many aspects and her response was “I didn’t think of that”. I remember that being Debra’s response when questioned about why she had not filled out incident reports for her injuries, and why she had not updated her medical information before departing on the trip.” 40

[123] At the conclusion of the two days of interviews Ms Harris made some notes on her impressions of each person being interviewed by the review panel. Those notes were put into evidence as Attachment MRH-2 to Exhibit R7. In relation to Ms Killeen the post interview notes of Ms Harris describe her impressions of the Ms Killeen as follows:

“Deb-

• Scatty and dishonest

• ‘didn’t think of that’ was the reply to many of her answers, or she could not remember some occurrences

• Emphasized the men’s drinking and betel nut tasting

• Did not confess to drug usage- claimed that she only took a painkiller Endone once, on second last night.

• Listed her range of prescription and non prescription drugs and alcohol, firstly denied asking others to carry her alcohol, then admitted that she asked Mary to carry one bottle through customs on way home. (Patrick said she’d asked him to carry some on the way there.)

• Admitted that she had no written report from doctor or specialist, only the physio.

• Admitted that she had not updated the medical form to include the knee injury from training”

[124] Ms Harris gave more detailed evidence about Ms Killeen’s attendance at the interview with the review panel in both examination in chief and in cross examination.

[125] In examination in chief Ms Harris said:

“PN4888. Ms Symons: Under the word “Deb” you’ve written a number of things?---

Ms Harris: Yes.

PN4889. Can I ask you to explain why it was that you chose to describe Deb as scatty and dishonest?---Yes. The scattiness really came from just some of her answers to questions, which were the second dot point, really, where she said, “I didn’t think of that.” It just came across that she was not being very professional, I suppose, and, yes, it just came across in a scatty manner to me.

PN4890. Okay?---These are merely my impressions.

PN4891. Sure. So that’s the scatty. What about the dishonest aspect of it?---The dishonest one related to some of Debra’s answers and it was just the feeling I got from the interview, that she was not being completely honest in the areas of her level of fitness and the injury to her knee as far as any prior damage to her knee then and other aspects of the knee, which I can go on with, if you like. Also her possession and use of alcohol and prescription and non-prescription drugs during the trek and her failure to disclose her pre-existing conditions, I suppose, on the - sorry, the medical clearance and the related aspects of that. So the fact that she said she had medical clearance and yet those pre-existing conditions seemed to be there.”

[126] In cross examination Ms Harris said:

“PN4998. Mr Addison: You said that she’d responded to a particular matter, which was - you say this in paragraph 17. You say, “Generally the participants conducted themselves admirably during the interview. I recall noting at one point that Debbie Killeen was scatty and dishonest.” Now, you say “at one point”. Was there a particular response or a particular thing said by Ms Killeen that gave you the impression she was scatty and dishonest?---

Ms Harris: I do remember that response to the questions why she hadn’t filed any sort of an incident report.

PN4999. That’s right?---If there’s one thing in working in the human service field, it’s drummed into you that if you have an injury or see somebody injured or witness an injury to somebody else that it’s very commonplace and important that you file an incident report listing those injuries.

PN5000. Yes?---I was quite surprised that nothing had come back, so that question was actually one of my instigation - a question that I instigated, because I was aware that there were no incident reports to that point.

PN5001. But that’s not correct, is it?---Well, that was my understanding.

PN5002. An incident report was filed. It’s in evidence in these proceedings?---Right, well, we didn’t see that.

PN5003. You didn’t see it?---An incident report? No.

PN5004. So nobody provided the investigation with an incident report which is there?---I can’t remember seeing an incident report that related to Debra’s injuries at all.”

And:

“PN5065. Mr Addison: ………Now, the next issue that you say you had a difficulty with, you thought Deb was dishonest, was in the question of prescription drugs?---

Ms Harris: Yes.

PN5066. How did that dishonesty arise?--- It was relating to the medication she took with her and whether they were directly related to the injury she had happen to her in training and whether they were for that, and then if not, why did she have them with her, because they were quite strong medications, and why did she not list them on the medical form and also state that she had a pre-existing illness when asked at the start of the trek.

PN5067. You’ve at A16 there. Isn’t that the list of medications with their purpose?---Yes. As I said, I haven’t seen that prior to today.

PN5068. Did you ask for it?---We asked for whatever medical information could assist the investigation and this list certainly didn’t come up.

PN5069. How did you ask for that?---Well, it wasn’t me asking for it anyway. It would have been - - -

PN5070. I know. It was Mr Carden, wasn’t it?---It would have been Tony in the first place.

PN5071. How did Mr Carden - do you know how Mr Carden asked for that information?

---I think he asked the participants via email.”

[127] In examination in chief Ms Killeen was taken to the witness statement of Ms Marie Harris:

“PN476. Mr Addison: Ms Harris makes a number of comments with regards to your demeanour in the meeting. Was Ms Harris at the meeting you refer to on 31 August?---Ms Killeen: Yes, she was a review panel member.

PN477. How many times did you meet with Ms Harris?---Once.

PN478. Just the once?---Just the once.

PN479. And that was the meeting on 31 August?---Yes.

PN480. She says at paragraph 17, “Generally the participants conduct themselves admirably during the interview. However, I recall noting at one point that Debra Killeen was scatty and dishonest during her interview.” What’s your comments with regards to that?---It’s safe to say I was incredibly confused as to how I was being asked questions around my medications because I always thought your personal medical information was personal. Well, at that stage I knew nothing about the grievance filed by Patrick so I couldn’t actually understand where the questions were coming from regarding the drugs and alcohol, so to speak. As I said, I’d just had two surgeries 10 days prior so I was still in a world of pain and dealing with my own knee issues, with no support from my own employer. So to walk into an ambush of questions about my medical history after they had told me not to bring any documentation, that I didn’t need anything, I was rattled I guess.

[189] Both Mr Peter Cranage and Mr Barclay gave evidence that a number of unnamed staff of UnitingCare Ballarat were not supportive of Ms Killeen. Mr Cranage’s evidence was that after the Kokoda Trek walk one staff member had complained to him about Ms Killeen’s behavior in adversely commenting about Mr Cranage 66 and two staff members who went out to lunch with Ms Killeen had complained “they were quite shocked at the level of how vile Debra was in that lunch period and they didn’t want to have anything more to do with her. Some of the things she was saying, there was - which were quite disgusting.”67 Mr Barclay’s evidence was that apart from one other staff member supporting Ms Killeen the rest of the drug and alcohol team “came in when Ryan was first doing his testimony as his support. They’re on side. They don’t want Debra to return.”68

[190] Whilst neither Mr Cranage nor Mr Barclay named these other staff and whilst the evidence of Mr Cranage and Mr Barclay on this issue is merely hearsay and is uncorroborated I nevertheless accept that there is likely to be a hostile environment for Ms Killeen if she was to be reinstated. Both Mr Barclay and Mr Cranage are openly hostile to any proposition that countenances Ms Killeen’s return to work at UnitingCare Ballarat and given their management roles in relation to Ms Killeen I do not consider that an order for reinstatement would remove that hostility.

[191] There is another factor which I consider is directly relevant to a consideration of the appropriateness of the remedy of reinstatement and that is the conduct of the male participants towards the female participants on the Kokoda Trek walk and the way in which that has been dealt with by UnitingCare Ballarat.

[192] As has been identified earlier in this decision the planned duration of the Kokoda Trek walk was cut by one day due to transport problems. This together with the significant difference in the fitness levels of participants meant that the fitter participants would not get to see everything they wanted to if the they travelled at the pace set by the slowest participants. The two slowest participants were Ms Killeen and Ms Konings. Notwithstanding Mr Traynor the tour guide and leader encouraging the group to stay together this did not happen.

[193] I have specifically had regard to the evidence of Sgt Graham and Mr Gary Traynor as both of these witnesses had no prior involvement with the participants on the Kokoda Trek walk and neither have any interest in the outcome of the proceedings. Both of these two gave evidence which was clear and impartial. Their evidence corroborates the evidence of Ms Killeen, Ms Konings and Dr Hollick on key aspects.

[194] Mr Traynor was critical of the conduct of some of the male participants during the walk and identified that whilst the first day of the walk showed promise of a co-operating supportive group 69 this quickly evaporated and it was evident that the males were frustrated with the slowness of the females and this led the males to initiate an effective break in the group which in turn lessened the experience for all of the participants.70 Mr Traynor specifically commented on the negative actions of Mr Peter Cranage in this split.71 Mr Traynor expressed the view that the consequence of this split in the group was that “that the experience for the women had been greatly tainted. Their achievement had been undermined and I was disappointed for them, because for many people Kokoda is a dream and I believe that their trip was ruined.”72

[195] One very clear illustration of the gender divide on the Kokoda Trek walk was given by Mr Traynor in relation to how Mr Cronin changed whilst on the walk:

“PN1253. .. Well, initially when I first met Patrick he came across to me as being a very polite, courteous young man and I was very impressed with him on our first and second days. By the end of the trip, unfortunately his demeanour was completely different. I asked him on several occasions, as I asked every male in the group, more or less telling them that the girls up the back were doing it a bit tough, could they slow down, or could they come and help. Patrick to me, again he changed as the day, as the trip progressed and it seemed to me that he was trying to win the favour of the other males.”

And:

“PN1255. ... At one stage there, and I believe it could have been Agalugu camp, I'm not too sure of the exact location, but I was talking to one of the female participants and he joined the group and started swearing and I just asked him to tone it down a bit. His language was offensive.”

[196] By day four of the walk Sgt Graham became so concerned about the men leaving the slower women behind that she confronted them on the walk about this. As Sgt Graham described it in her evidence:

“PN1488. ..... That day was a bit of a day that did break the camel's back. There had been a bit of dissention in amongst the group whereby Gary Traynor was trying to bring everyone together and was telling the girls we'll all be walking together and no one is going to be separated, you will all be safe, and today we're walking together, no exceptions. And the only exception obviously was always going to be for the purposes of the documentary, which was Jeremy Banniser. In any case, we were told on that particular day we were going o be staying together. Well, it turns out that the boys left early and that caused a few grumblings that I was listening to with the girls at the back. I was listening to the boys saying we're not going to stuff around, we need to make up for this day that we've lost at the very beginning of this whole journey when we missed the flight. So the boys were wanting to press on. So I sort of sat in my place in the group and kept up with the walk, kept listening to what was happening, and the grumblings at the back seemed to get louder and I became concerned for the welfare of the girls who were struggling at the back because their mental attitude was becoming harder, they were becoming harder on themselves, and they were worrying that they weren't getting the support from the boys. So what in essence happened was that after lunch time I ran up, physically ran up a very steep embankment of a hill and caught up to the boys and it was in this location that I told them that I was very disappointed. I pointed out to them that we were in Anzac country where Australians are proud to be Australians, and in a location where I was feeling quite on a personal level a little bit embarrassed that the girls at the back weren't getting the support that maybe they needed from the strong men at the front who were more interested in getting ahead and catching up on that day and not missing any ammunition dump sites or anything interesting along the way. So I was concerned that they were forgetting the purpose of the trip, so I did bring it to their attention half way up the cliff on the way to Efogi. I upset a few people. I was, in my view, trying to be the voice of the girls at the back who couldn't speak for themselves, they couldn't put themselves in that situation where they could be there to make that noise.”

[197] As a result of that intervention by Sgt Graham the same night at the camp at Efogi a meeting was convened of the group. Sgt Graham described that meeting as follows:

“It was after my fuss that I made on the hill that the meeting was called. So the tone that was set for the meeting, it was Gary, I think, who may have been in charge, but I believe that Peter Cranage, still being the leader of the whole group, was convening the meeting. But I'm still not really sure because it was never said, it was never spoken. Peter never actually stood up and said I am taking control, this is the meeting we're having. In any case, you're correct, it did get untidy. And there was accusations levelled towards Deb at that time. And Mara became quite distressed as well.” 73

“I do mean it was when I use the word untidy, I mean that there were things out of place. People were speaking out of place and people were speaking out of school in terms of saying things that were probably not appropriate and on heat of the moment where they were letting their emotions take over rather than rationally considering what they were saying before they spoke. Mara indicated that she felt she was being let down and left behind and was surprised at that because she said being one of the clients she expected a certain level of assistance and support and didn't feel she was getting it. She was told in no uncertain terms by Peter that if she wasn't happy she could pretty much leave the group, she didn't have to be part of the documentary, and she was told she wasn't a client while she was in Kokoda. While you're on the trek you're just here for yourself. That surprised me because before we left when all the hugs and kisses were being given to the family members of the clients, the workers were standing around saying they'll be fine, they won't be alone in the jungle for one moment. And I just felt that they were letting them down myself. In any case, Mara was very surprised by that and sat back and you could see that she was a little bit confronted by that. She all of a sudden realised hey, I'm not here as a client, I'm on my own. Then there was John Cranage and he levelled towards Deb some accusations that she was constantly affected by substances and that she was unfit and not in a correct capacity to be able to attend the Kokoda Track, what did she think she was doing even being present. Things of that nature that were unfolding very quickly. People speaking over the top of each other, out of turn. Jeremy Bannister was very upset at me. He said that I had called him on the hill when I confronted them and brought things to a head. He said that I'd called him un-Australian and he took that personally.” 74

[198] In cross examination Sgt Graham was asked to clarify what happened at the Effogi meeting.

“PN1585. Ms Symons: You gave some evidence about a meeting at Efogi, I think that's the correct pronunciation, I think you used the word or described that meeting as "untidy"?

---Sgt Graham: I did.

PN1586. You gave some evidence about what that actually meant?---Yes.

PN1587. You talked about people speaking out of turn?---Yes.

PN1588. You have identified a couple of male participants as having done that?---Yes.

PN1589. Did any female participants speak out of turn?---The meeting was commenced and it began badly from the beginning and the girls pretty much just sat back and listened. Mara was invited to speak when it was pointed out that she was unhappy with how she had been treated, and she spoke and she spoke quietly and just - she was a bit embarrassed to speak in front of the large group and felt probably that she was being forced to speak because this meeting was being held basically because the girls were struggling. She said how she felt a little betrayed and once she put those feelings forward that's when it really turned nasty with people speaking out of turn over the top of each other and with Peter telling the girls or telling the group that no client was a client on the trek and that Patrick actually announced full forcedly - he actually obtained or gained a voice throughout the trek. He started off he was quite quiet and demure to start with and became much louder and rambunctious as the trip progressed and he was quite loud and was one of the ones to speak up over the top of all the voices and commented that he didn't consider himself a client on the trek.

PN1590. The exchange that you're talking about it suggests there was some back and forth between both groups?---Not a lot, it was - I describe it as an attack.

PN1591. Surely someone (indistinct) must have had something to say (indistinct)?---I spoke, I was probably the only one that spoke after it was really loud when I said to Jeremy - he directly attacked me and said he didn't appreciate on the hill when I approached the boys and asked them if they were going to stop and wait for the girls at any point that I described my feelings as un-Australian and he took it that I directed it at him and he virtually spat as he yelled directed towards me that he took offence to the fact that I'd said that he was acting un-Australian and my reply was simply it was directed at the whole group, all of the activities, nothing that was happening on that trek could be described in my view as being patriotic and an Australian and I explained to them that I was in a position and that was just me giving my view on what I saw. I may have raised my voice to speak loud enough so that I could get over the noise but that's all I said and I was the loudest of the girls. None of us - it wasn't an attack, it was an - I'd never experienced anything like that in my life at a meeting and was appalled and I described that to the committee when I came back, my thoughts on leadership and how that meeting was managed. I didn't see myself as a leader on the trek, that was not my role and I sat back and listened and that was - the boys took that as an opportunity to really just put the girls in their place and tell them exactly what was expected from them on the trek which was just to simply walk the trek, get out and leave us alone, we want to - they expressed they had sites they wanted to see. They wanted to - they were very disgusted that the trek in their view was going to be shortened, there was as loop in the trek of a town that they wanted to visit and it became apparent to them we weren't going to make that town simply because the girls they thought were too slow when in fact the Kokoda track is very vast and interchanging, as towns have wars the trek changes around the townships to be able to accommodate the tourists and so we have towns like Efogi and Efogi 1 and New Iterara and things like that occurring, so the trek leader Gary tried to point out to them that they're still walking the trek even if they do miss a township, take a shortcut. We did have a day delay and there's no reason why we can't walk the trek successfully. These were all things that were yelled at us by the boys, their discontent at their trek being disrupted.”

[199] Mr Traynor the tour guide and tour leader also gave evidence in relation to the meeting at Efogi. Mr Traynor confirmed that Mr Peter Cranage, Mr John Cranage and Brendan the reporter “were out of line” 75 in what they said. Mr Traynor described the conversation as “certain males within the group blaming two of the girls, in particular Ms Deb Killeen (and also Ms Mara Konings). The males appeared to be extremely frustrated with the pace at which the women were walking, and then the conversation came up about their lack of preparation as a result of this, and there was many comments made which I felt weren't productive for the group continuing the rest of the trek.”76 Mr Traynor described the comments made by the males against the females as “aggressive and hurtful”.77

[200] I note that Mr Peter Cranage specifically gave evidence that Sgt Graham was “not correct” when she identified him as saying that clients were not clients whilst on the Kokoda Trek. 78 The effect of Mr Peter Cranage asserting that his evidence is truthful is that consequentially the evidence of Sgt Graham is untruthful. In relation to the Efogi meeting I prefer the evidence of Sgt Graham. It is clear to me that Mr Peter Cranage was prepared to deny important evidence which went against him.

[201] I have also had regard to the conduct of Mr Peter Cranage at the Efogi meeting in light of his own evidence that:

“Well, actually a lot of my experience comes from working with anger management. I used to run all the anger management sessions for the Office of Corrections across Victoria. I think I've got a fairly good understanding of dealing with people with aggression.” 79

[202] I also note from the evidence of Mr Traynor that one of the PNG porters expressed the view that “(t)hey were bewildered that Australian men would treat Australian women in such a fashion.” 80

[203] Mr Traynor was specifically questioned on his views about Ms Killeen’s reinstatement:

“PN1357: Ms Symons: Mr Traynor, I'm not sure how much you have been told about the present proceeding. But one of the outcomes that Ms Killeen seeks to achieve is to effectively get her job back with Uniting Care?---Mr Traynor: Yes.

PN1358 I'm not sure if you are aware of that or not. I would just be interested to understand what your views on that would be from the point of view of how that might impact on Ms Killeen?---I believe that – it's hard for me to say that because I don't know what happened before the trip, and I don't know what happened after the trip. All I can state to you was the manner in which Deb Killeen administered concern during the trek, and I believe that despite her own physical condition and despite her own physical ailments, she was extremely supportive of Mara Konings and Mary, and I was impressed. She is a big girl, but she's got the big heart that goes with it, ma'am. So I would strongly suggest that she was an asset to Uniting Care, was the opinion I formed.

PN1359. Thank you. Just in terms of relationships, and I understand that you haven't had the benefit of being around and understand what's been going on, but could you imagine that Ms Killeen could return into an environment where, for example, Mr Peter Cranage was operating and were Mr Kerr was operating?---Ma'am, I live in the real world. I believe that if she went back to where Peter Cranage was her supervisor, I don't believe it would be a very happy environment.”

[204] The conclusion that can be drawn from the evidence in this matter is that Mr Peter Cranage acted in a manner which was completely at odds with his position as a Manager at UnitingCare Ballarat and as a person who was being paid to attend a work event walking the Kokoda Trek. For a person with expertise and experience in anger management he must have left that expertise and experience behind when he did the Kokoda Trek walk and acted in such a grossly inappropriate manner at the Efogi meeting.

[205] Not only was Mr Peter Cranage’s disowning of the clients of UnitingCare Ballarat a personal affront to those clients, it also calls into question his understanding of the relationship between UnitingCare Ballarat and its clients. However the more serious defect with Mr Cranage is his inability to understand that as a Manager of both Mr Kerr and Ms Killeen he had a very clear duty to act as a manager towards them at the Efogi meeting. It was incumbent on Mr Peter Cranage to have protected Ms Killeen, his subordinate employee, from the verbal attack levelled against her by other male participants. Rather than do his duty Mr Peter Cranage joined with his brother Mr John Cranage and another in the aggressive attack on Ms Killeen.

[206] That UnitingCare Ballarat permitted Mr Cranage to be disciplined with a ‘formal warning’ but with retaining his position as Alcohol and Other Drug Program Manager is clearly indicative of a level of support for his continued role as the Manager of counsellors such as Mr Kerr and, if reinstated, Ms Killeen.

[207] Reinstatement is designed to be a remedy which is a real benefit to an employee who has been unfairly dismissed. Reinstatement is not a punishment for an employee who has been unfairly dismissed.

[208] To reinstate Ms Killeen in her employment with UnitingCare Ballarat would in my view be inflicting a punishment on Ms Killeen.

[209] Not only are Mr Barclay and Mr Cranage hostile towards Ms Killeen but in addition Mr Kerr who was prepared to have two bob each way in every aspect of this case could not be relied upon to be a supportive co-worker of Ms Killeen. Additionally it is clear that other staff have taken sides with all but one of the drug and alcohol team on the side of Mr Barclay, Mr Cranage and Mr Kerr. Such a workplace would be intolerable for Ms Killeen. I note that whilst Ms Killeen has sought reinstatement she has clearly expressed her emotions throughout the proceedings and it is evident to me that Ms Killeen would not cope with a hostile workplace.

[210] Reinstatement is not an appropriate remedy in this matter.

Is Compensation appropriate or inappropriate?

Amount of Compensation

[211] Having decided that a remedy is appropriate but that reinstatement is inappropriate I do consider that the remedy of compensation is appropriate.

[212] Compensation is dealt with in s.392 of the Act which is as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[213] It is trite to say that, in a case such as the present, where on a scale of unfairness from minor to major, the unfairness of the dismissal of Ms Killeen is at the major end of the scale that compensation cannot be used to punish UnitingCare Ballarat and that the level of unfairness can play no role in the calculation of the amount of compensation. 81 In calculating an amount of compensation under s.392(2) each relevant criterion must be taken into account.

Viability (s.392(2)(a))

[214] In the present matter UnitingCare Ballarat made no submission and led no evidence to suggest that an order for compensation would have any effect on the viability of UnitingCare Ballarat’s enterprise. In the circumstances of the present matter I do not consider s.392(2)(a) to be a relevant criterion.

[215] In approaching the calculation of an amount of compensation I follow the approach of the Full Bench in Tabro Meat Pty Ltd v Heffernan 82.

Remuneration that would have been received (s.392(2)(c))

It is clear from the evidence in this matter that had Ms Killeen not been dismissed then she intended to remain working with UnitingCare Ballarat for a considerable period. Ms Killeen liked her work and wanted to continue with this work. That Ms Killeen was good at her work was confirmed by her co-worker Mr Kerr in his evidence. The positive comments made by Mr Traynor in relation to this observation about Ms Killeen’s support of clients whilst on the Kokoda Trek walk 83 tend to support a conclusion that Ms Killeen wanted to continue working for UnitingCare Ballarat. I note that the evidence in this matter discloses that Ms Killeen was studying law at the time of the dismissal but had since given up that study. There was nothing before the Commission to suggest that Ms Killeen had any intention of leaving UnitingCare Ballarat. In the circumstances of this matter I am prepared to find that had Ms Killeen not been dismissed then her employment would have continued for at least another 2 years. Ms Killeen was a full time employee of UnitingCare Ballarat earning $28.90 per hour. Therefore for the purposes of s.392(c) I calculate an amount of $114,212.80.

Remuneration earned (s.392(2)(e)) and Income reasonably likely to be earned (s.392(2)(f))

[216] Ms Killeen reinjured herself in February 2013 and was on WorkCover payments until 18 May 2013 when she was cleared for work. It would appear that Ms Killeen was fit to work between the date of dismissal and her injury in February and then from 18 May 2013 onwards. Ms Killeen obtained casual employment commencing 1 June 2013 for 16 hours per week at the rate of $35 per hour. Whilst it was not clear on the evidence as to how long this casual work would continue I am prepared to assume that the casual employment would continue until such time as the amount of compensation is paid. Therefore for the purposes of s.392(2)(e) and (f) I calculate an amount earnt and to be earnt by Ms Killeen of $14,000.

Other matters (s.392(2)(g))

[217] A question that often arises is: Should the amount of compensation be altered up or down to take into account contingencies. In the present matter there is nothing before me arising from all of the circumstances of the case to suggest that there should be any alteration to the amount of compensation to take account of possible contingencies.

Length of service (s.392(2)(b))

[218] Ms Killeen had been employed with UnitingCare Ballarat for 4 years. The period is not so short that any downward adjustment should be made to the amount of compensation. After 4 years as a Drug and Alcohol Intensive Case Manager the relationship between Ms Killeen and UnitingCare Ballarat was well established and settled. There is no reason to make any adjustment to the amount of compensation because of or relating to the length of service of Ms Killeen.

Mitigation efforts (s.392(2)(d))

[219] Ms Killeen’s own evidence was that she did not make any effort to mitigate the loss suffered by her from her dismissal between the date of dismissal, 20 December 2012 and February 2013 before she reinjured herself. However I note that this period includes the Christmas - New Year holiday period and the usual holiday closedown for many businesses in January. I note that upon receiving a clearance to work in May 2013 Ms Killeen was offered casual employment commencing 1 June 2013. In all of the circumstances of this case I do not intend to reduce the amount of compensation by reason of s.392(2)(d).

Misconduct (s.392(3))

The evidence in this matter and the findings of the Commission make clear that Ms Killeen did not engage in the misconduct alleged against her. No reduction to the amount of compensation will be made under s.392(3).

Shock, distress etc disregarded (s.392(4))

[220] In calculating the amount of compensation I have disregarded and not included any compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Killeen by the manner of her dismissal.

Amount of compensation that is appropriate

[221] The appropriate amount of compensation in this matter is a gross amount of $100,212.80. If this amount was taxed at the rate of 40% it would still leave a net amount of compensation of over $60,000.00.

Compensation cap (s.392(5))

[222] The compensation cap operates to limit the amount of compensation that the Commission can order. The compensation cap in this matter is the total amount of remuneration received by Ms Killeen or to which she was entitled for the 26 weeks prior to the dismissal. Accepting Ms Killeen’s evidence that her hourly rate was $28.90 then the compensation cap for Ms Killeen would be $28,553.20.

[223] The amount of compensation which is to be paid to Ms Killeen is a net amount of $28,553.20. If there is to be any tax paid on this amount then the tax is to be paid by UnitingCare Ballarat. The amount of compensation ordered to be paid is a net amount free of tax. It is not clear what if any tax may apply to an amount of compensation under s.392 of the Act. The amount of compensation is clearly not paid as wages, nor as allowances, nor is it to be treated as an eligible termination payment or a redundancy. In any event the issue of taxation, if it applies, is a matter for UnitingCare Ballarat to deal with.

[224] An order to this effect will be issued separately and will require payment of the amount of compensation to be made within 21 days.

COMMISSIONER

Appearances:

M. Addison for the Applicant

C. Symons for the Respondent

Hearing details:

2013:

Ballarat

May 15, 16

July 22, 23

August 23, 30

1 Transcript at PN7114 - PN7122.

2 Submissions of the Respondent dated 29 April 2013 at para 8.

3 Para 5 of Exhibit R9.

4 Submissions of the Respondent dated 29 April 2013.

5 Exhibit R9 attachment CPB-3.

6 Exhibits A1 and A12.

7 Exhibit A2.

8 Exhibits 3 and 4.

9 Exhibit R5.

10 PN4144 - PN4146 and PN4173.

11 PN4169 - PN4172.

12 PN1422 - PN1427.

13 PN1446 - PN1449

14 PN1571 - PN1576

15 PN4195.

16 PN5785.

17 PN5787.

18 PN5794.

19 PN5795.

20 PN941, PN942 and PN4869.

21 PN4869.

22 PN4968.

23 PN4537 - PN4539 and PN4873.

24 PN429.

25 PN421 and PN428

26 PN3582.

27 PN5047 - PN5064.

28 PN5059 - PN5061

29 PN3593, PN3594

30 Exhibit R5

31 PN3582 and PN3590.

32 PN5401 and PN5430.

33 PN5399.

34 Attachment MRH-2 to Exhibit R7.

35 Exhibit R8 at p.9.

36 Exhibit R8 at p.11.

37 Exhibit R8 at p.12.

38 Exhibit R8 at pp.14 and 15.

39 Attachment CPB-4 to Exhibit R9.

40 Exhibit R7.

41 PN5071.

42 Emails between Ms Killeen and Mr Carden produced to the Commission but not marked as Exhibits.

43 PN5824 PN5825, PN5866.

44 Selvachandran v Peteron Plastics Pty Ltd,(1995) 62 IR 371 at 373, 7 July 1995, Northrop J

45 Rode v Burwood Mitsubishi, Print R4471 at pn19.

46 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, S5897 at pn 73.

47 Attachment CPB-5 to Exhibit R9.

48 Annetta v Ansett Australia Ltd, Print S6824 at pn 16.

49 Macquarie Concise Dictionary, 5th edn.

50 Vdoukakis v DJ Cussan Pty Limited t/as Royal Hotel Randwick, PR949780

51 House v R. (1936) 55 CLR 499, at 404 - 405.

52 (2000) 203 CLR 194 at 205.

53 Holcim (Australia) P/L v Serafini [2011]FWAFB at pn [24].

54 Nicholson v Heaven & Earth Gallery Pty Ltd [1994] IRCA 43.

55 Australia Meat Holdings P/L v McLauchlan, (1998) 84IR 1 at 17.

56 Rosedale v Telstra Corporation, PR90541.

57 Attachment CPB-2 to Exhibit R9

58 PN5685-PN5687.

59 PN4819-PN4831.

60 PN3720-PN3726.

61 PN3727.

62 I note that Mr Kerr answered the proposition put to him with a “No” which in a strictly grammatical sense means that Mr Kerr would have a difficulty with Ms Killeen coming back to work. However in the context of the cross examination and having observed Mr Kerr give his evidence I have accepted that in saying “No” Mr Kerr meant that he would not have any difficulty if Ms Killeen came back to work.

63 PN5938-PN5944.

64 PN3707.

65 PN6247-PN6298.

66 PN4821.

67 PN4823.

68 PN5973.

69 PN1378.

70 PN1400, PN1398, PN1395 PN1378.

71 PN1246 - PN1249.

72 PN1349.

73 PN1489.

74 PN1490.

75 PN1261.

76 PN1258.

77 PN1259.

78 PN4621.

79 PN4446.

80 PN1383.

81 Bean v Milstern Retirement Services Pty Ltd [1995] IRCA 274, Moore J, Perrin v Des Taylor Pty Ltd(1995) 58 IR 254, Moore J,PrintLinx Pty Ltd v Hughes PR910359.

82 Tabro Meat Pty Ltd v Heffernan, [2011] FWAFB 1080.

83 PN1358.

Printed by authority of the Commonwealth Government Printer