Hiles v Allity (Little Para) P/L - [2015] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
HILES v ALLITY (LITTLE PARA) P/L
[2015] SAEOT 4
Judgment of Her Honour Judge Cole
15 May 2015
HUMAN RIGHTS - DISCRIMINATION
Application by the respondent to strike out the complaint on the grounds that it does not identify a cause of action pursuant to the Equal Opportunity Act 1984 (SA). The complaint alleged victimisation of the complainant, by the respondent, on the basis of being a "whistleblower” and disclosing an alleged assault.
Held: The respondent’s interlocutory application is granted. The complaint is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20; Equal Opportunity Act 1984 (SA) s 86; Whistleblowers Protection Act 1993 (SA) ss 4, 9, referred to.

HILES v ALLITY (LITTLE PARA) P/L
[2015] SAEOT 4

This is a decision in relation to an interlocutory application made on behalf of the respondent in this matter. The respondent seeks to have the matter struck out on the basis that the complaint by Mr Hiles does not disclose a cause of action pursuant to the Equal Opportunity Act 1984.
The Complaint
Mr Hiles made a complaint to the Commissioner for Equal Opportunity on 27 July 2014. Mr Hiles complained that he had been “Victimised for being a whistleblower”. The complaint read, relevantly, as follows:
About October 10^th I complained to ACAS about an assault I had witnessed.
Since then I have been libelled, slandered, threatened, bullied and more.
I have extensive documentation and many witnesses, e.g. other residents, staff, visitors, police and David Clinton (ACAS).
Mr Hiles gave evidence that he is now of the view that the incident he witnessed occurred on about 16 October 2013.[1]
[1] Transcript p 27.
Whistleblowers
The Whistleblowers Protection Act 1993 provides, in s 9(1) and (2):
9—Victimisation
(1)A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.
(2)An act of victimisation under this Act may be dealt with—
(a) as a tort; or
(b) as if it were an act of victimisation under the Equal Opportunity Act 1984,
but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.
Pursuant to s 4 of the Whistleblowers Protection Act 1993, public disclosure information is defined as follows:
public interest information means information that tends to show—
(a)that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act)—
(i)    in an illegal activity; or
(ii)     in an irregular and unauthorised use of public money; or
(iii)    in substantial mismanagement of public resources; or
(iv)    in conduct that causes a substantial risk to public health or safety, or to the environment; or
(b) that a public officer is guilty of maladministration in or in relation to the performance (either before or after the commencement of this Act) of official functions;
Mr Hiles claims to have made a disclosure of public interest information pursuant to the Whistleblowers Protection Act 1993. The public interest information upon which Mr Hiles relies is the incident which Mr Hiles reported in October 2013, and which Mr Hiles believes constituted an assault.
The ground for the respondent’s application to dismiss the proceedings is that Mr Hiles cannot bring himself within s 9(1) of the Whistleblowers Protection Act 1993 because the incident that Mr Hiles witnessed and reported, and which, Mr Hiles asserts, constituted “unlawful activity” under the Whistleblowers Protection Act 1993, was not, in fact, an assault, and did not constitute “unlawful activity”.
The Incident
At all relevant times, Mr Hiles was a resident of the Little Para Aged Care facility (“Little Para”). Mr Hiles gave evidence that, on or about 16 October 2013, at about 8:15am, he was in his room at Little Para when he heard shouting. He identified the voice as that of one of the enrolled nurses, whose name was Leanne. Mr Hiles opened his door and looked out into the corridor. It was Mr Hiles evidence that he saw Leanne, who had her back to him, speaking to Mrs Tallboy, another resident, in a very loud voice. Mrs Tallboy, at all relevant times, was affected by dementia. (It was the evidence of Ms Giurassi, a registered nurse who was, in 2013, the General Manager of Little Para, that Mrs Tallboy, at the time of the incident, had many long term memories intact, but great difficulty with short term recall).[2] Mr Hiles observed that Leanne had her hands on Mrs Tallboy’s shoulders. Mr Hiles said that he heard Leanne say to Mrs Tallboy:
I love you too much not to let you go down for your breakfast
and
If you try and go back in the room I’m going to lock the door on you
[2] Transcript p 55.
Mr Hiles gave evidence that he thought that Leanne was “gripping” Mrs Tallboy’s shoulders. He also said that he thought that Leanne was preventing Mrs Tallboy from getting away from Leanne. Mr Hiles said that he was six feet away from the two women. Mr Hiles agreed that the two women were “more or less” stationary. He agreed that Mrs Tallboy did not speak during the interaction.
Mr Hiles gave evidence that he had a subsequent conversation with Mrs Tallboy. He said, speaking of a conversation he had with Mrs Tallboy a few days after the incident:[3]
..I said “Do you remember somebody shouting at you in the corridor?, her face lit up and she said “Oh yes, I remember that”. And I said “Do you remember who it was? And she said “Yes, it was that big blonde nurse”. I said “What was she doing with you? she said that “She had her hands on my shoulders”.
[3] Transcript p 32.
Ms Vansetten, one of Mrs Tallboy’s daughters, gave evidence in Mr Hiles’ case. Ms Vansetten said that her mother has dementia and some problems with her hearing, though she did not consider those problems to be particularly severe. Ms Vansetten had no direct evidence about the incident. She said that her mother had not complained to her, but she would not expect her to, on account of her difficulties with her short term memories.
Ms Parise, who is also Mrs Tallboy’s daughter, gave evidence in Mr Hiles’ case. Ms Parise said that her mother did not mention the incident to her for a while. Ms Parise gave the following evidence:[4]
[4] Transcript pp 15-16.
A….About two weeks after I spoke to her one day, when I asked her at the time she told me she didn’t remember. Two weeks out of the blue – two weeks later out of the blue, she just came out and said, “Yes, I know. That did happen’ and I was shocked.
QWell what, how – you had described something to her, had you.
AYes. I said mum – we were talking about it at the nursing home and I said “Mum, can you remember at all if someone shouted at you?” and she said “Yes, she was yelling at me to go down for breakfast and I didn’t want to go and she was yelling at me.
QSo that’s what she said was happening.
AThat’s absolutely.
QThat she was being yelled at.
AYes, absolutely.
QShe didn’t complain of any other behaviour.
AYes, she said “She’s very bossy”.
QVery bossy.
AYes.
QI see. No complaint of an assault.
A“And I don’t like that”, mum said.
QNo complaint of an assault.
AI asked her, I said “So you remember it mum?” and she said “Yes, she grabbed me by the arm and told me I had to go down there, but I told her where to go”. Mum has got a real strong character that will come out if she gets pushed around at all.
QThen did you speak to her about it at any subsequent time.
AFurther down the track it came up again, and once again it was at the home because other people were mentioning it, and I said “Yes, mum did remember” and I said “Do you remember mum” and she said “No, I can’t remember”.
Several days after the incident, Mr Hiles telephoned the Aged Rights Advocacy Service (ARAS), and made a complaint about the incident. Mr Hiles spoke to Mr David Clinton, of ARAS. Mr Clinton then advised Ms Giurassi of the complaint. Ms Giurassi then reported the matter to the police. Subsequently, Ms Giurassi was present when a police officer interviewed Mrs Tallboy about the incident. Ms Giurassi’s account of that interview was as follows:
AThey asked her, they just had some general chatter with her to establish some rapport I would imagine and then they asked her had she ever been hurt while she was at Little Para, has anyone pushed her or grabbed her or done anything to her and she said “No, not at all, not at all” and had anyone yelled at her and she just started laughing actually.
QWhy did she start laughing.
AI don’t know, I think because he was yelling at her because she’s got a hearing impairment.
QDid you ever have to yell at Ms Tallboy.
AI have to speak loudly to a lot of residents, it’s a big issue in aged care.
HER HONOUR
QDid you to Mrs Tallboy.
AYes, everyone did because you sometimes couldn’t get a hearing aid in or she’d take them out and she’d lose them and so there would be, you know, no other alternative but to talk in a raised voice with her.
Ms Giurassi gave evidence that a routine care evaluation was made of Mrs Tallboy on 18 October 2013. I note that, if Mr Hiles is correct, and the incident occurred on 16 October 2013, then this evaluation occurred two days after the incident, but several days before Ms Giurassi became aware of the incident. With reference to the record of the care evaluation, which is a business record of Little Para, Ms Giurassi gave evidence that no bruising was observed on or near Mrs Tallboy’s shoulders. Ms Giurassi said that Mrs Tallboy required nursing assistance with daily showering, so that she would have expected that, had any bruising occurred, at any time, it would be recorded. Staff are required to undertake a skin assessment whilst showering a resident.[5]
[5] Transcript p 56.
Ms Giurassi gave evidence that there was no complaint by Mrs Tallboy of any physical symptoms around her shoulders, including bruising.[6]
[6] Transcript p 55.
What is an assault?
It is Mr Hiles case that the incident he witnessed on about 16 October 2013 was an assault by Leanne on Mrs Tallboy.
The Criminal Law Consolidation Act 1935 provides, in s 20(1) and (2):
20—Assault
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)     intentionally applies force (directly or indirectly) to the victim; or
(b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)     threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)there is a real possibility that the person will carry out the threat; or
(d)     does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)     accosts or impedes another in a threatening manner.
(2)However—
(a)     conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b)     conduct that is justified or excused by law cannot amount to an assault.
I do not consider that there is any credible evidence that Leanne, in placing her hands on Mrs Tallboy’s shoulders, was applying force within the meaning of s 20(1)(a) of the Criminal Law Consolidation Act 1935. Mr Hiles interpreted Leanne’s action as “gripping”, and “forcible restraint” but that was his interpretation, and there is no objective evidence to support it. Mrs Tallboy did not protest about the hands on her shoulders. She was not moving in such a way as to indicate that she was trying to get away from Leanne. There was no bruising. Mrs Tallboy did not, at the time, express any fear or alarm or apprehension of harm. In her later recollections of the incident, if, indeed, that is what her conversations with Mr Hiles and Ms Parise, quoted above, were, she did not report feeling any fear or apprehension that she would be harmed. There is no evidence that Leanne had any reason to think that Mrs Tallboy would object to her actions, and no evidence that Mrs Tallboy did, in fact, object to her actions.
As to the “shouting”, there is no reason to think, from the words used by Leanne, as reported by Mr Hiles, that the volume of Leanne’s voice, as she spoke to Mrs Tallboy, was high for any reason other than that Leanne believed Mrs Tallboy to be having difficulty hearing her. I find, on the basis of the evidence of Mrs Tallboy’s daughters, Mr Hiles and Ms Giurassi, that Mrs Tallboy has a hearing impediment, though it is apparent that the people who interact with her frequently have different impressions as to the extent of it.
I have considered the words which Mr Hiles alleges Leanne said to Mrs Tallboy. It seems to me that the words were more in the nature of light-hearted, joking words from a nurse to a resident than they were a threat. No basis has been established for a finding that Leanne intended to create, in Mrs Tallboy’s mind, a reasonable apprehension of harm. There is no evidence that Mrs Tallboy took Leanne’s words to mean that she actually would lock her into her room or harm her in any way. Clearly, Mr Hiles dislikes Leanne’s style of verbal communication with the residents, but that does not make it an illegal activity. I determine that Leanne’s words to Mrs Tallboy did not constitute a threat pursuant to s 20(1)(c) of the Criminal Law Consolidation Act 1935.
Conclusion
Mr Hiles claims that he has been victimised, contrary to s 9 Whistleblowers Protection Act 1993 and s 86 Equal Opportunity Act 1993. Mr Hiles makes this claim on the basis that he disclosed public interest information, namely an assault on Mrs Tallboy by Leanne on about 16 October 2013.
On the basis of the evidence before me, which, I am satisfied, includes all of the direct evidence available in relation to the incident, there is no prospect that Mr Hiles can show that the incident he witnessed between Leanne and Mrs Tallboy constituted an assault. It is probable that the phrase “an illegal activity” in the definition of “public interest information” in s 4 of the Whistleblowers Protection Act 1993 refers to criminal activity, in which case the requisite standard of proof is proof beyond reasonable doubt. Even if that phrase can be taken to refer to the tort of assault, however, in which case the standard of proof is on the balance of probabilities, I determine that there is no prospect that Mr Hiles can establish that the incident he witnessed constituted an assault, even on the lower standard of proof.
The respondent’s interlocutory application is granted. Mr Hiles’ complaint is dismissed.