[2015] FWC 1127 [Note: An appeal pursuant to s.604 (C2015/2350) was lodged against this decision - refer to Full Bench decision dated 22 May 2015 [[2015] FWCFB 3398] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Joby Cherunkunnel
v
Alfred Health
(C2014/3503)

COMMISSIONER CRIBB

MELBOURNE, 12 MARCH 2015

Alleged dispute concerning disciplinary action.

[1] Mr Joby Cherunkunnel (the Applicant) is an employee of Alfred Health (the employer, The Alfred) and he lodged a grievance under clause 22 of the Victorian Public Mental Health Services Enterprise Agreement 2012 - 2016 (the Agreement). The grievance concerned the decision by The Alfred to issue him with a final warning, under clause 23.5(g) of the Agreement and to demote him from his Associate Charge Nurse position (grade 3) to an RPN 2 position with a four week period of supervision on day shift and the completion of a Performance Management Plan. 1 The dispute between the parties concerns clause 23 of the Agreement.2

[2] The dispute was not settled at conciliation. Under the terms of clause 22.9 of the Agreement, either party may request that the Fair Work Commission (the Commission) determine the grievance by arbitration. Mr Cherunkunnel elected to have the dispute arbitrated in accordance with clause 22.9 of the Agreement.

1. Applicant’s contentions

[3] Mr Cherunkunnel took issue with:

(a) the procedure adopted by the Respondent in conducting the investigation (clauses 23.1 - 23.2 of the Agreement).

(b) the lack of compliance with clause 23.2.

(d) whether the alleged conduct, if found proven, provides the basis for any action under clause 23.5 of the Agreement. 3

[4] Further, Mr Cherunkunnel contended that:

(a) he was not afforded natural justice or a fair hearing in relation to the investigation.

(b) he was not provided with an opportunity to defend himself in relation to the allegations during the investigation.

(d) he was not provided with the name and qualifications of the investigator who conducted the investigation nor was he contacted by the investigator for an interview or an opportunity to answer the allegations.

(e) he disputes that the complaints, if substantiated, provide grounds for any disciplinary action. 4

2. Alfred Health’s response

[5] For Alfred Health’s part, it was submitted that the matter before the Commission is as follows:

Were the allegations against the Applicant serious enough to warrant a first and final warning under clause 23 of the Agreement?

Was Alfred Health able to form a view after a reasonable and thorough investigation that the events as alleged occurred?

Did Alfred Health follow the disciplinary clause process within clause 23 of the Agreement?

Did Alfred Health afford the Applicant procedural fairness under clause 23 of the Agreement? 5

3. Undisputed facts

[6] It was stated by the Applicant, that the following facts are not disputed between the parties:

The Applicant was stood down on full pay on 26 November 2013 whilst the Respondent conducted an investigation into a complaint made by a graduate nurse.

The Applicant did not have a support person with him at the meeting at which he was stood down and was not informed of his right to have one.

The investigation substantiated the complaint and, in a letter dated 14 January 2014, the Applicant was directed to “show cause” why his employment should not be terminated.

The Applicant attended the show cause meeting with his legal representative, on 21 January 2014, and formally responded to the allegations and investigation report, for the first time. 6

4. Evidence

(a) On behalf of Mr Cherunkunnel

Ms Menzies

[7] Ms Menzies is a Registered Psychiatric Nurse and she provided a character witness statement for Mr Cherunkunnel. 7

[8] Ms Menzies also gave evidence that:

She first met Mr Cherunkunnel in 2005 when he was a graduate nurse working at Alma Road Community Care (ARCC) as part of his formal rotation. 8 She has subsequently worked with him since that time, most of which was at the ARCC.9 She works part time (three - four days a week) and Mr Cherunkunnel works full time. There would probably be at least two shifts a week where they would cross paths ie work on the same shift or on shifts where there are about three hours of shared time.10

At the time of the allegations, she was working at a different part of The Alfred (December 2013 until the beginning of June 2014). She started at the other community team at the beginning of December 2013. She said that she cannot verify that she was at the ARCC at the time of the allegations without checking her diary. 11

She did not witness any of the events that allegedly took place. She has spoken to Mr Cherunkunnel about these events but not to Ms Birks, Mr Vokoun or Ms Hua. 12 She therefore only has Mr Cherunkunnel’s response to the events and his recollection of them.13

She believes that the events did not occur as they are beyond Mr Cherunkunnel’s capacity to behave in that way on the basis of the person she knows he is. 14

She believes that the events have been misinterpreted/ misrepresented based on her view about Mr Cherunkunnel and who he is. 15 By misrepresented, she believes that there has been a version put forward that may not truly reflect the context.16

She agreed that she cannot definitely say that the events did not occur or that they have been misinterpreted or misrepresented because she does not know. 17

The basis of her beliefs in relation to Mr Cherunkunnel is that she has known him for many years and is very aware of who is he is; what he does professionally and how he behaves in the workplace. She could not even imagine, in her own mind, the alleged activity taking place. 18

Mr Cherunkunnel

[9] Mr Cherunkunnel gave evidence that:

He commenced employment with Alfred Health in February 2005 as a graduate nurse. 19

In 2008, he was promoted to the position of Associate Charge Nurse (RPN3/ACN). 20

He is not the only registered nurse on duty when he is at work and the duties set out in his statement are shared with other registered nurses. 21

Meeting on 26 November 2013

He was asked by Ms Robb to come to her office. There was a meeting with himself (no support person), Ms Robb and Ms Birks. He was told that an allegation had been made against him by a graduate nurse (Ms Hua). The allegation concerned making derogatory comments towards management and staff, in breach of Alfred Health’s Code of Conduct. He was informed that he was being stood down immediately and that an external investigator would conduct an investigation. 22

He was not given any details of the allegations but it was possible that someone had misinterpreted or misunderstood things. He was surprised, shocked and saddened about the allegations. 23

He asked to be involved in the investigation because he was going overseas in four days time (1 December 2013 until 15 January 2013) on prearranged leave. He asked if he could see the investigator before he went on leave. Ms Birks had responded that she was not sure whether that would be possible but that she would let him know before he went overseas. 24

He received a letter, dated 26 November 2013, which confirmed that he was stood down on full pay. 25

It was conceded that it was possible that the letter referred to comments being undermining of management and clients. 26 Other than also being told that there would be an investigation, he was not given any other information.27

He received a letter, on 14 January 2014, which listed the allegations and provided a summary of the investigation. The letter requested that he attend a show cause meeting. 28

Between 26 November 2013 and 15 December 2013, neither Mr White (Human Resources) nor the investigator contacted him. 29

He attended a meeting on 21 January 2014 and provided answers to the allegations, both verbally and in writing. He had an opportunity to respond to the allegations. 30

He had a support person (legal) with him at the meeting. 31

In the letter of 26 November 2013, the allegations concerned management, staff and clients. In the letter of 14 January 2014, the allegations only concerned clients. 32

He explained that he thought that the allegations were that he had made comments about clients but that, when he received the show cause letter, the allegations were that he had made comments towards clients. 33 It was agreed that the show cause letter set out allegations about his treatment of clients.34

He explained that, by his description of the clients as “special needs clients”, he meant that they had various disabilities, both psychiatric and medical. 35

It was denied that he had treated clients in an inappropriate manner or failed to provide clients with a caring and safe environment. 36

He denied that he had commented to Ms Hua that Client O was “just a prostitute after all”. 37 He agreed that, if it had been said, it would not be in keeping with Standard 1.1 of the National Mental Health Standards (the Standards).38

Ms Hua might have made such an allegation for multiple reasons including that, in her statement, she claimed that she was not valued and that she felt that she had been undermined by himself and Ms Kirby. 39

He denied being rude to Client O. 40

He denied that, by including comments about Client O in his statement, he was trying to denigrate her. Rather, he was just stating the facts. 41

In his statement, he recounted the occasion when he had said No to one of Client O’s many requests for milk, tea or coffee, as it indicated poor financial management. He had mentioned that she needed help from her Case Manager to better manage her finances. 42

If the allegations regarding his treatment of Client O did occur, he agreed that they would not comply with Standard 2.1 of the Standards. 43

He agreed that the Standards require that the consumer’s preferences and demands should be heard but said that that was as long as the demands and preferences are reasonable. 44

He indicated that he has a filter for what is reasonable and what is not reasonable after he has heard what a client has to say. This is in consultation with others as they work as part of a team. 45 Some of the requests are discussed as a team whilst others (simple requests) are not.46

If the request is simple, then it will be accommodated. It was said to depend on the scenario and what the request is i.e. can it be accommodated. 47

He agreed that Alfred Health’s recovery oriented values principles (Standard 10 of the Standards) have to apply and that, as the shift leader, he would have to apply them. 48

The allegations in the letter of 14 January 2014 would not satisfy the Mental Health principles. 49

He denied saying to Ms Hua that it was the client’s problem if she did not eat etc. 50

In referring to Ms Hua in his statement, he characterised her as “a graduate nurse”. It was said to be important to describe Ms Hua as such because she is inexperienced and was getting used to the system and the psychiatric conditions. 51

He agreed that Ms Hua’s hearing is not impaired whether she is a graduate nurse or an experienced nurse. 52

However, in certain scenarios, it does matter that Ms Hua is a graduate nurse in relation to seeing something and reporting it. This was because there are areas where you can misinterpret an interaction so that it is seen in a negative light. For example, a client may be refused medication based on the nurse’s clinical knowledge and experience. An inexperienced staff member may then think that the nurse was not listening to the client. 53

If Ms Hua or a person in the street saw his behaviour and reported it accurately, it still depended on the person having the full story and context. The person would need to know what happened before and after. 54

He agreed that a person’s observation of his behaviour would not be affected by what position that person held. 55

He denied Ms Cone’s allegation that he had told Client K that she was not allowed to use the heater as it cost too much. 56

He denied the comments by Ms Wales but said that she had a right to have an opinion. He agreed that Ms Wales would have had to have observed something in order to form an opinion. 57

In relation to Mr Vokoun seeing him reading newspapers on the computer (when not on a break), it was explained that he does not leave his desk (nurses station) when he takes a break. Rather, he reads the newspapers on the computer. He thought that that was a legitimate thing to do. He said that Mr Vokoun had not approached him regarding his concerns, despite them having known each other for years. 58

As the office is generally busy, there would be other staff there who could respond to clients when he is on his break. However, he will always come off his break if a client needs something. 59

He denied saying to Mr Vokoun that they (the residents/Client O) need to learn to be patient. 60

In relation to the moving incident in Mr Vokoun’s statement, he recalled that Ms Cone had approached him and told him that a client was in a disturbed mental state because she had no TV connection in her new room. Ms Cone further explained that the client’s old TV was in one of the other units on the first floor. So, he had then grabbed a trolley and moved the TV and connected it up for the client. Mr Vokoun had thanked him for doing it. 61

He could not recall an incident relating to a dental appointment for Client O. 62

The reason he had included in his statement, that Mr Vokoun had been seen smoking in prohibited areas, was not to try and discredit him but to state a fact, as getting clients to smoke in the designated areas can be a problem. 63

He confirmed that he was stood down on 26 November 2013 until 23 January 2014. 64

It was acknowledged that he had had negative feedback from Ms Keppich-Arnold but not from Ms Birks. 65 Ms Keppich-Arnold had spoken to him, in February 2013, about a complaint of bullying and harassment from one of the staff. She had asked him if he and Ms McFarlane had spoken together on 2 February 2013. He admitted that he had talked to Ms McFarlane about the new model of care and the issues the previous week regarding group staffing issues, including Ms Cone. Apparently, a staff member overheard them and passed the information onto Ms Cone. Ms Keppich-Arnold had indicated that there was a lot of stress and frustration amongst nursing staff regarding the changes. It was recalled that he was unable to represent himself because the conversation was without any warning. The tone of the meeting was said to have been hostile and that Ms Keppich-Arnold was unhappy and so he did not argue with her. He recalled her being direct. The meeting was described as an information gathering meeting.66

It was agreed that Ms Cone’s allegations were the basis for the discussion with Ms Keppich-Arnold in February 2013. 67 He said that the discussion was broader than the complaints by Ms Cone and Mr Scherger as multiple structural issues were also discussed. Ms Keppich-Arnold was wanting to find out what was causing the problem. He had told Ms Keppich-Arnold that the problem was the restructuring which was causing a lot of stress amongst staff68

When Ms Keppich-Arnold raised the concerns of Ms Cone and Mr Scherger, he had disagreed but said that Ms Keppich-Arnold was pushing the thing. 69

Ms Cone made the bullying and harassment complaint without talking to him to verify that there was a conversation between himself and Ms McFarlane. The complaint was said to have been made based on hearsay. 70

Ms Cone also made an allegation to the investigator. He was worried that Ms Cone might make another complaint against him without discussing it with him. Hence his e-mail to Ms Birks on 5 October 2014. He confirmed that Ms Birks had responded on 8 October 2014. 71 In his e-mail to Ms Birks, he said that the bullying and harassment allegation regarding the incident in February 2013, was false. This was because it was based on hearsay.72

His email to Ms Birks in October 2014 was the first time he had raised his concern that Ms Cone disliked him. 73 This is despite having worked with Ms Cone prior to her going on parental leave and during her parental leave. He had raised the issue then as he thought it was an opportunity to put it there.74 He did not know why he did not raise the issue with management, prior to including it in his second statement.75

It was confirmed that Ms Cone had made two sets of allegations about bullying and harassment - February 2013 and the allegations raised with the investigator. 76

He disagreed that Ms Keppich-Arnold gave him a verbal warning during the meeting. 77 He had not seen the e-mail from Ms Keppich-Arnold to Mr Quirk, saying that she had given him a verbal warning.78

He agreed that there was some similarity between the words used in paragraph 32 of his first statement and paragraph 12 of Ms Menzies’ statement. 79

In regard to the allegations, most of them were untrue and the others were either gross exaggerations or misrepresentations. 80

The allegations in relation to the comments about clients were untrue plus the allegation of assault. 81

The allegations about reading the newspapers, moving the TV and his comments at the education seminar are misrepresentations in that they occurred but in a different context. 82

At the meeting on 21 January 2014, it was agreed that he had the allegations before him and a lawyer with him. He stated that a decision had already been made that he was guilty. 83 He was provided with an opportunity to be heard and to respond to the allegations.84 He was able to respond, verbally and in writing, to the allegations put to him in January 2014.85

He only had the opportunity to partially put his version of events forward as the decision had already been made. This was because findings had been made before he had the opportunity to put his side of the story. 86

He did have an opportunity to say everything that he wanted to say at the show cause meeting. 87

In relation to his statement that, prior to 26 November 2013, he had never been accused of mistreating or acting inappropriately towards clients, he confirmed that he was spoken to by Ms Keppich-Arnold in February 2013 and that he had seen the e-mail sent to Ms Birks by Ms Gilbert. 88

He denied that Mr Vokoun had directed him or criticised his work. 89

It was accepted that Ms Birks had had a conversation with him about not notifying her that he was attending a stop work meeting and also then about his expected behaviour. 90 He stated that he had informed his acting manager.91

He confirmed that he agreed that, if the allegations were true, they would not be compatible with the various Standards. 92

During the meetings on 26 November 2013 and 21 January 2014, none of the Standards nor the Code of Professional Conduct were referred to by The Alfred. 93

(b) On behalf of Alfred Health

Ms Birks

[10] Ms Birks is Manager of Community Psychiatry for Alfred Health and has responsibility for oversight of the whole programme, including the ARCC. She reports to Ms Keppich-Arnold. 94

[11] It was Ms Birks’ evidence that:

She is not present at the ARCC on a daily basis. 95

Mr Cherunkunnel’s direct Manager was, and is, Ms Robb, who, in turn, reports to her. 96

April 2010 email from Ms Gilbert

She received an e-mail from Mary Gilbert, on 14 April 2010, advising her that she had informed Mr Cherunkunnel of the complaints that had been made about him. Ms Gilbert also advised that she had sought feedback from, and given feedback to, Mr Cherunkunnel. She (Ms Birks) had not been present at the meeting. 97

She was not aware of any escalation of the complaints. 98

13 April 2012

She was advised that Mr Cherunkunnel had left work to attend a Health and Community Services Union (HACSU) stop work meeting. 99

She spoke with Mr Cherunkunnel later that day and gave him feedback about his responsibility as Nurse in Charge to inform management of intended stop work action in his area. 100

After initially stating that he assumed that management was aware, he accepted the feedback and gave an undertaking to notify management in future. 101

She was not aware that he had advised Mr Miller. However, it was Mr Cherunkunnel’s responsibility, as shift leader, to have informed her. 102

The issue was not elevated and no warnings were given. 103

Complaints by Ms Cone and Mr Scherger

In March 2013, she was informed by Ms Keppich - Arnold about complaints made by Ms Cone and Mr Scherger about Mr Cherunkunnel and Ms McFarlane, and the subsequent actions taken. 104

Ms Robb and Ms Keppich - Arnold had spoken to her about how they had dealt with the situation. 105 That was the extent of her involvement.106

She did not directly participate in any of the actions but was aware that a complaint had been made and the subsequent actions taken. 107

She was aware that Ms Keppich-Arnold followed the matter up and met with Mr Cherunkunnel. 108 What she knows about the complaint she found out on her return from leave some weeks later.109

Complaint by Ms Hua

On 8 November 2013, she was notified by Ms Robb that there had been a complaint by Ms Hua regarding patient care and Mr Cherunkunnel’s treatment of patients and colleagues. 110

She met with Ms Hua a few days later (on 14 November 2013) with Ms Robb also in attendance. She asked Ms Hua to put her issues in writing in her own words, which she subsequently did. 111

She was confident that the issues complained about by Ms Hua happened during her rotation at the ARCC. When she met with Ms Hua, Ms Hua’s rotation had just been concluded. 112

She, Ms Keppich-Arnold and Mr White discussed the nature of the complaint and made a decision to engage an external investigator and stand Mr Cherunkunnel down. This did not occur immediately but sometime between 14 and 25 November 2013. 113 Mr White was the person who engaged the investigator.114

On 26 November 2013, she met with Mr Cherunkunnel in the presence of Ms Robb, knowing that she was going to stand him down. There was no support person there for Mr Cherunkunnel. 115

During the meeting, she informed Mr Cherunkunnel of the complaint made against him and the need to stand him down (effective immediately) pending an external investigation. She outlined the investigation process and timelines. 116

An outline of the complaint was provided but not the detail, at that meeting. She told Mr Cherunkunnel that there were concerns about his conduct with regard to patients and colleagues and about whom the complaint related. 117

She gave Mr Cherunkunnel a letter to this effect. 118 The letter did not refer to specific parts of the Alfred Health Code of Conduct that Mr Cherunkunnel may have breached. It was explained that Alfred Health had concerns that Mr Cherunkunnel may have breached the Code of Conduct in relation to his treatment of staff and colleagues. Therefore, they engaged an investigator to look at the veracity of those concerns.119

It was conceded that she was aware, at this time, that the services of an investigator had already been engaged. 120

She recalled that Mr Cherunkunnel seemed surprised about the allegations and stated that, at times, people may misinterpret his words or actions. 121

She was aware of Mr Cherunkunnel’s leave but, it was only during the discussion with him, that she became aware that his leave was occurring sooner than she had thought. Once it became apparent that Mr Cherunkunnel was not going on leave on the Wednesday (around 5 December 2013), but the preceding Saturday, the timeframes shortened significantly. 122

She indicated to Mr Cherunkunnel that the timeframes were very short but that they would do their very best to conclude the investigation as quickly as possible with a view to ideally, being able to conclude the matter before he flew out. However, with his revised dates, she explained that it would be very unlikely that they would be able to do it. 123 It was agreed that she would call Mr Cherunkunnel on Friday to give him an update.124

She received the investigation report and findings from Ms Kydd on 2 December 2013. 125 This marked the end of the investigation.126

Mr Cherunkunnel did not return from overseas until around 11 January 2014 and she rang him on 15 January 2014, at the time the specified by him. 127

During the telephone call, she advised Mr Cherunkunnel that the investigation had concluded and that he was required to attend a show cause meeting. 128

On 14 January 2014, a show cause letter was sent to Mr Cherunkunnel with the investigation report attached. 129

The investigation report was ultimately accepted by herself and Ms Keppich - Arnold, under the advice of Human Resources. 130

Mr Cherunkunnel was not part of the investigation process as he was away overseas. The allegations and report findings were put to him on his return. 131

This occurred at the meeting on 21 January 2014. During the meeting, Mr Cherunkunnel gave a verbal response as well as tabling a written response. All of this was taken into consideration in determining that a first and final warning was appropriate. 132

The reason for deciding on a first and final warning rather than a second warning was because the conduct that had been substantiated (on the basis of probability) was sufficiently serious. As it is a residential service for extremely vulnerable clients, matters of patient care are taken particularly seriously. 133

In addition to considering the investigation report and Mr Cherunkunnel’s verbal and written responses, they also took into account the previous discussions with Mr Cherunkunnel regarding his performance. This included issues of a similar nature (Ms Cone’s bulling and harassment complaints). This was one of the factors taken into account. 134

Mr Cherunkunnel provided a letter of response to the first and final warning of 27 January 2014. 135

As far as she was aware, there was no report made in relation to Mr Cherunkunnel’s alleged derogatory remarks about Client O (prostitute comment). 136

It was confirmed that an allegation of assault of Client O was part of the interview record of the investigation. There was no incident report in relation to this and no subsequent action taken. 137

The first time she was made aware of this incident was when she received the investigation report. 138

Ms Keppich – Arnold

[12] Ms Keppich-Arnold is the Director of Nursing for Mental Health and Clinical Services for Alfred Psychiatry. 139

[13] Ms Keppich-Arnold gave evidence as follows:

Complaint by Mr Scherger

Come February 2013, they had gone through, over the previous 18 months, an extended process of consultation with staff, in regard to the recovery model of care that The Alfred was implementing. 140 She expected nurses to comply with the new model of care.141

It was acknowledged that there were teething issues in implementing a change to the model of care and the bringing of occupational therapists onto the roster. A workforce implementation committee had been established to talk through these issues. 142

Mr Scherger came to see her and made a verbal complaint regarding a conversation he overheard between Ms McFarlane and Mr Cherunkunnel. During this conversation, he had heard that Mr Cherunkunnel and Ms McFarlane discuss Ms Cone’s work ethic and attendance in a derogatory manner. He had followed this up in writing. 143

Mr Scherger had reported this to the acting Nurse Manager, at the time, but no action had been taken. He was also concerned that the recovery practice framework was being derailed by staff in their continued criticism of the expected changes to practice. 144

Mr Scherger’s complaint was supported by a further letter of complaint regarding bullying and harassment from Ms Cone regarding Mr Cherunkunnel. 145

She decided to investigate the incident herself after having spoken with the Human Resources Department who advised her to discuss the issues with the staff involved. She met with the acting Nurse Manager and then with Ms Cone and Ms McFarlane on 12 February 2013. 146

During her conversation with Ms McFarlane, she denied saying that “... this is a case of Chinese whispers and it is not going to go any further”. 147

She also spoke with Mr Cherunkunnel on 12 February 2013 (rather than on 19 February 2013) and advised him that she had received a complaint from a staff member concerning himself and another staff member discussing the work ethic of Ms Cone. She also indicated that she had to investigate the complaint. 148

It was denied that, during that meeting, she was frustrated. Rather, it was explained that she was concerned that staff were talking about other staff members behind their backs and raising issues around their integrity. This was described as absolutely inappropriate, regardless of what else was going on. 149

During the meeting, it was recalled that Mr Cherunkunnel denied that he would ever discuss other staff in derogatory terms and stated that he had no problem with Ms Cone. Later, he acknowledged that the conversation had taken place with Ms McFarlane and said that Ms McFarlane had raised the issue with him. 150

Mr Cherunkunnel then identified a number of contributing factors relating to frustrations around the changing model of care, having occupational therapists on roster and the difficulty he was experiencing in managing these changes. 151

At this point, she counselled Mr Cherunkunnel regarding how to best manage these frustrations. 152

Following liaison with Mr Quirk, on balance, she decided to provide Mr Cherunkunnel with a verbal warning. This was given during a further meeting with Mr Cherunkunnel on 19 March 2013. 153

The verbal warning was forwarded to Mr Quirk for placement on Mr Cherunkunnel’s personnel file. She could not say whether that was done in this instance. 154

22 May 2013

Mr Cherunkunnel was provided with feedback that the leaving of rubbish and the dishevelled nature of the house was not consistent with the recovery model. His response was that the recovery model meant that staff did not do things for residents and that it was not his job to clean up. She had then provided informal feedback around engagement and support for clients and the processes for establishing therapeutic relationships with residents struggling to engage in rehabilitation. 155

Complaint by Ms Hua

On 8 November 2013, she was informed by Ms Birks that she had received a complaint regarding Mr Cherunkunnel. Ms Birks did not refer her to any particular part of the Code of Conduct in relation to the complaint as it was implicit in their conversation. She is very familiar with the Code of Conduct and it is explicit that people come to work to do a job and work within an expected code of conduct. 156

On 14 November 2013, she participated in a telephone call with Ms Birks and Mr White. They discussed whether, if the allegations had substance, Mr Cherunkunnel should be stood down sending pending further investigation. 157

She was informed by Ms Birks and Mr White that they thought that there was substance to the allegations. 158

The decision was made to stand Mr Cherunkunnel down and that an external investigator be engaged. 159

She then needed to defer responsibility for this matter to Ms Birks until she returned to work. This was when Mr Cherunkunnel was about to go on annual leave. 160

On 21 January 2014, she met with Ms Birks and received the investigation report. 161 She firmly believed that Mr Cherunkunnel’s conduct was a serious breach of practice and responsibility as an ACN. She agreed that he should be supervised for a period of time and not be in charge. She also considered his conduct worthy of termination. However, given his circumstances and his length of service, she approved a first and final warning. In doing so, she took into account her knowledge of the professional discussions which had occurred including the verbal warning in March 2013.162

On 28 January 2014, she met with Mr Cherunkunnel to conclude the disciplinary action and to advise Mr Cherunkunnel of her expectations of his clinical and leadership behaviours. She also advised Mr Cherunkunnel that Ms Robb would supervise his practice and requested that he develop a four week performance plan to demonstrate his capacity to work as an ACN and his ability to engage positively with residents. 163

She was aware that part of the investigation was an allegation regarding Mr Cherunkunnel grabbing Client O. She stated that they would not, and did not, make representation to the police, in relation to the alleged assault. Rather, they would support a patient or staff member. If they wished to pursue it, it would be their prerogative to do that. She was not able to say whether or not that occurred in this case. 164

She confirmed that no issue has been raised with the Australian Health Practitioner Regulation Agency (AHPRA). 165

Susan Hua

[14] Ms Hua gave evidence as follows:

Client O

She recounted that, on one occasion, Client O came knocking on the door of the nurses’ station quite loudly and was highly distressed, teary, emotional, raising her voice and needing assistance. 166

She had proceeded to help Client O because she appeared to be very distressed and because part of her role is to do a mental state assessment and risk assessment. So, she had proceeded to try and talk to her and get to the source of her distress and they sat down on the steps outside the nurses’ station. 167

Client O told her that Mr Cherunkunnel had yelled at her and was very rude to her. He had yelled at her because she was smoking in the driveway as she was walking back into her unit. It was recalled that she offered Client O some tissues because she was crying and sobbing at this time. 168

Client O then talked about her past experience with Mr Cherunkunnel and said that he had always been rude to her and yelled at her for no reason and that he would just come into her room abruptly without knocking. 169

She had acknowledged Client O’s distress but had also reinforced the non-smoking policy within the unit and that it is correct for nursing staff to redirect smoking if it is in the unit. 170

Her assessment at that point was that Client O did not need any medical intervention. What was important at that time was a therapeutic intervention which was something that nurses can do without input from a medical practitioner. 171 Because Client O was able to talk to her about her distress, that seemed to have resolved the emotional intensity that she was expressing.172

Following her conversation with Client O she returned to the office and Mr Cherunkunnel said to her that he had heard her and that, “with people like that, you have to yell back and be more assertive”. Further on in the conversation, Mr Cherunkunnel had said “She’s staff splitting, with Client O you just need to ignore her”. 173 It was recalled that Mr Cherunkunnel had then pointed his finger towards Client O and said “She is just a prostitute at the end of the day”.174

She agreed that therapeutic intervention would occur regularly within the context of mental health patients and that nursing staff have different ways of undertaking that clinical assessment. 175

She disagreed that Client O could be fairly described as someone who did not get on well with everyone. She was not aware of direct complaints from people about Client O and how she was with other clients, resulting in her constantly having to stay in a room by herself. 176

She disagreed that Mr Cherunkunnel had never referred to Client O as just a prostitute and that, if that had been said, she would have immediately spoken to Ms Robb or Ms Birks. 177

Client K

Mr Cherunkunnel had approached her in the nurses’ office following her having spent a period of 2 to 3 hours engaged with Client K. She had been facing the nurses’ board looking for activities that she could suggest for Client K as Client K had said that she was interested in joining more youth groups. 178

It was recalled that Mr Cherunkunnel had said to her “Don’t do that, we don't talk to people like that in the community, if you spend time with her, we will all have to do that too. It is her problem if she doesn’t eat”. 179

She agreed that she did not like the fact that Mr Cherunkunnel had given her some guidance or advice in relation to how to treat Client K. She disagreed that she did not like him giving her guidance because she did not respect him or because she did not think he was in a position to do so. 180

She agreed that what Mr Cherunkunnel told her in relation to Client K was providing her feedback about her interactions with Client K. She disagreed that there was nothing derogatory in this feedback or that it was not undermining. 181

Complaint Process

She had first raised the situation with Ms Wales (the occupational therapist) during her rotation. 182

Ms Wales gave her guidance in terms of how to escalate the matter and strongly suggested that she go ahead with it. 183

She spoke to Ms Wales because her preceptor (Ms Menzies) was not available and, working in the nursing profession and in community, it is very much team oriented. She explained that she had found Ms Wales quite welcoming and friendly and she was on shift with her the following evening. Therefore, she approached Ms Wales and decided to debrief with her. It was very professional. She stated that she had never spoken to Ms Wales prior to that other than regarding her work at the ARCC. 184

Ms Wales initiated an e-mail to Ms Robb to enquire about debriefing and exit interviews for new staff members. 185

It was agreed that she had been allocated a preceptor but she chose not to speak to that person about her complaint. 186 Her preceptor was rostered on night shift and so she did not have any interactions with her.187

The next step in escalating her complaint was when she spoke with Ms Robb on 11 or 12 November 2013. At this point in time, her rotation at Alma Road Community Care had concluded and she had been placed elsewhere. 188

In her conversation with Ms Robb she outlined what had occurred in relation to Client O and Client K. She had also advised that she was considering making a formal complaint regarding Mr Cherunkunnel’s poor conduct. 189

On 14 November 2013, she attended a meeting with Ms Robb and Ms Birks and described the incidents regarding Client O and Client K. 190 She was asked to provide a written statement about the allegations she had raised during the meeting with Ms Birks and Ms Keppich-Arnold. She agreed that she was unable to provide the dates on which the allegations were said to have occurred. She disagreed that she was at best cobbling together what she recalled.191

Several days later, Ms Birks telephoned her and informed her that her complaint had been referred to an independent investigator, Ms Kydd. She met with Ms Kydd on 26 November 2013 and provided her with details of what she had witnessed and observed during her rotation at ARCC. 192

In addition to detailing the incidents in relation to Client O and Client K, she had also advised Ms Kydd about a further incident which occurred when several staff members were discussing a client’s suicidal attempts. Mr Cherunkunnel was said to have commented that “In India, the family would have been put in prison if someone committed suicide. None of this babying people”. It was recalled that he had then shaken his head in disapproval and walked out of the office. 193

She disagreed that the complaint about Mr Cherunkunnel was not the first complaint that she had made against a senior nurse. 194

She confirmed that she had a list of concerns which she had raised in writing and as well as the complaint in relation to her time with Client O. 195

Mr Vokoun

[15] It was Mr Vokoun’s evidence that:

Between July 2011 and May 2014, he worked with Mr Cherunkunnel as a Senior Clinician and Manager of the New Horizons program. 196 His role was Senior Clinician for Alfred Psychiatry Rehabilitation which was a clinical role which included acting as a mentor clinically and was part of introducing a recovery focus.197

He was not Mr Cherunkunnel’s manager nor did he have an operational role in relation to Mr Cherunkunnel. 198

He agreed that clients at the ARCC often exhibited challenging behaviours. Two short examples of the issues daily faced by Mr Cherunkunnel and the other nurses, where there are clinical reasons for challenging behaviours, included making an assessment about whether a doctor should be called or when something like Client O’s TV wasn't working properly. 199

Reading the newspaper

He had observed Mr Cherunkunnel reading the newspaper on the computer whilst clients were waiting for their needs to be assessed. He did not ask whether Mr Cherunkunnel was on a break. He spoke to Mr Cherunkunnel and told him that a client needed his assistance. 200

When he spoke to Mr Cherunkunnel about this, he had responded that “They need to learn to be patient”. He had responded that the clients have different needs and should not be treated the same and how, in the long run, the work that you put in now will benefit all in the future. He had also said that no two residents have the same level of functioning and so should be treated accordingly. 201

He did not raise this issue with management because it was not a disciplinary matter as it was not serious misconduct. 202

Moving a client

On another occasion, a resident (Client O) was waiting to move from one unit to another unit because of conflict with a flatmate. When he discovered that the move had not happened, he asked Mr Cherunkunnel directly about why. No reason was given. 203

When he had gone and grabbed the trolley, other staff came and helped him move the client, following his lead. 204

There was no direction provided by Mr Cherunkunnel. He spoke to Mr Cherunkunnel afterwards and pointed out that his role was to ensure that the staff cohesively ran the facility whilst he was the team leader. 205

He did not recall asking Mr Cherunkunnel what had occurred or why there was a delay. 206

The incident concerned the operation of the unit and the distress being caused because the move was not happening and it should have happened. 207

He had not raised the incident with Ms Robb or Ms Birks. 208

Dental appointment

There was also an incident where he observed that a resident (Client O) was distressed at having missed her dental appointment. When he had enquired about it, he was told that staff would not support her getting to her first appointment by going with her. Mr Cherunkunnel had said that the clients “.... need to be independent in attending appointments”. He had responded by pointing out to Mr Cherunkunnel that their role was to support the clients to be independent. 209

He disagreed with the proposition that this conversation had never happened. 210

Training

He further described a discussion with Mr Cherunkunnel after he had attended training in Recovery focus interventions. It was recalled that Mr Cherunkunnel had said that this would not work with this type of client. This was said to go against the heart of the Recovery principles which are reinforced by the Mental Health Act 2014. 211 He had responded by talking with Mr Cherunkunnel about the changing culture towards a Recovery focussed service and how his role as a shift leader required him to mentor this approach. He also spoke with Mr Cherunkunnel about him moving away from his current coercive and dictatorial practices when dealing with residents.212

He agreed that when new systems are being implemented, staff have various views about what will and will not work. 213

The reason he did not raise this as an issue was because it was a learning time for all of us and it was an open discussion but it is a basic principle in the recovery process. 214

The reason that he does not have diary notes or other notes relating to any of these incidents is because he may be bit more lenient in his approach to the way he wants people to learn. 215

The reason that none of these incidents warranted disciplinary action or any uplifting to management was because they were being dealt with. 216

He disagreed with the proposition that he hadn’t given any of these instances any thought until he was asked by The Alfred to cobble together some evidence about his different approach to nursing to that of Mr Cherunkunnel. 217

Mr White

[16] It was Mr White’s evidence that:

He was employed as the Employee Relations Adviser at Alfred Health from June 2011 until March 2014. 218

He had been contacted by Ms Birks in November 2013 as there had been a complaint by Ms Hua regarding the alleged conduct of Mr Cherunkunnel and another nurse at the ARCC. 219

It was recalled that Ms Birks spoke to the employee and Alfred Health then engaged an investigator to elicit further information from a range of witnesses and staff. 220

In conjunction with Ms Birks and Ms Keppich-Arnold, he had engaged the services of Ms Kydd to undertake the investigation. 221 The investigator was given the complaint by Ms Hua.222 He could not categorically confirm that the document he was handed was the complaint.223

The purpose of the investigation was to see if the allegations about Mr Cherunkunnel’s conduct were valid (as per clause 23.1(a) and 23.3(a) of the Agreement). 224

As far as he was aware, a brief summation of the formal allegations was that Mr Cherunkunnel had possibly engaged in a breach of the Alfred Health Code of Conduct in that he had made some undermining and derogatory comments to the management, staff and clients of the ARCC. 225

The usual process was described as receiving the complaint and then sitting down with the investigator and working out what needs to be done and to go from there. 226

In his witness statement, he said that Alfred Health believed that there was no requirement for Mr Cherunkunnel to be part of the investigation as he would have an opportunity to respond to any allegations arising from the investigation under clause 23.3 of the Agreement. 227

During his oral evidence, he said that Mr Cherunkunnel being interviewed by the investigator, was neither excluded or included. Quite often, these sorts of processes sort of unfold so that what the investigation looks like at the beginning, turns out quite differently as it has had to be altered during the course. 228

It was explained that he has organised investigations in different ways: one way is for the employee to be interviewed as part of the process or, secondly, once the investigation report is provided, the employee's response is then sought. This was stated to be exactly what happened in this case (ie. Mr Cherunkunnel was not interviewed as part of the investigation) and it was also due to Mr Cherunkunnel being absent and overseas. 229

Clause 23 in the Agreement does not stipulate that Mr Cherunkunnel has to be part of the investigation. It was said to depend on the investigation as to what is needed. 230

The investigator was well aware of the enterprise agreement but he could not categorically say whether or not she was given a copy of it or a copy of the National Framework for Recovery-oriented Mental Health Services policy. 231 He stated that he did not provide the investigator with a copy of the National Competency Standards for Registered Nurses (he did have a long conversation with her about the complaint); the National Standards for Mental Health Services or the Code of Professional Conduct for Nurses in Australia.232

He disagreed that not interviewing Mr Cherunkunnel, as part of the investigation, was a process that did not allow procedural fairness. 233 He said that it was a fair process as Mr Cherunkunnel was given the chance to respond to the report.234 Mr Cherunkunnel was asked to respond to the report as part of the process and there was no decision made about the report until Mr Cherunkunnel’s response was received.235

He believed that Mr Cherunkunnel was given procedural fairness. He was given the report and the initial complaint and he had a chance to respond. 236

The report was received from the investigator, by Ms Birks, in early December 2013. The overall findings of the report were that the allegations against Mr Cherunkunnel were substantiated. 237

The report also found that the results of the investigation should be put to Mr Cherunkunnel under clause 23.1 (a) and for Mr Cherunkunnel to respond to the allegations. 238

A “show cause” letter as to why Mr Cherunkunnel should not be dismissed was sent to him, directing him to attend a meeting, on 14 January 2014, to respond to the allegations (clause 23.1 and 23.2 of the Agreement). 239

The meeting was held on 21 January 2014, in accordance with clauses 23.1, 23.2 and 23.3 of the Agreement and Mr Cherunkunnel was provided with an opportunity to answer the concerns and he was provided with the material. 240 A final warning was issued on 22 January 2014.241

Mr Cherunkunnel subsequently objected to the formal warning and a further meeting was held on 27 February 2014. It was argued, by Mr Cherunkunnel, that Alfred Health had not followed due process as Mr Cherunkunnel had not been interviewed by the investigator. 242

Mr Cherunkunnel was on prearranged leave and overseas at the time of the investigation - from 1 December 2013 to about 15 January 2014. 243

5. Submissions

(a) On behalf of Mr Cherunkunnel

[17] On behalf of Mr Cherunkunnel, it was submitted that Alfred Health should not have imposed a final warning on the basis of the material it had and without going through the preliminary steps required under clause 23.5 of the Agreement and without having conducted a fair and proper investigation. 244

[18] Further, it was Mr Cherunkunnel’s evidence that:

A fellow employee (an inexperienced Graduate Nurse) made a complaint against him.

He maintains his denial of the allegations.

His conduct was not below acceptable standards.

He disputes that the allegations provide grounds for termination or disciplinary action under clause 23.5 of the Agreement.

He maintains that no work performance or disciplinary issues were ever brought to his attention during his employment.

The first he heard about any of the allegations was on 26 November 2013. 245

He denies that he called Client O a prostitute or assaulted her. 246

All of the other performance issues raised reflect a difference of opinion between work colleagues rather than any deficit in Mr Cherunkunnel’s work or performance. 247

[19] In addition, Mr Cherunkunnel disputed the findings of the investigation, saying that it was a flawed investigation, on the basis that:

He was not afforded natural justice or a fair hearing in relation to the investigation.

He was not provided with an opportunity to defend himself in relation to the allegations.

He was not informed of the right to have a support person with him at the meeting in which he was stood down.

He was not provided with the name and qualifications of the investigator who conducted the investigation.

He was never contacted by the investigator for an interview or provided with an opportunity to answer the concerns or allegations. 248

[20] Therefore, the Applicant argued that the imposition of a final warning was harsh and not warranted, given the consequences of such a warning. This was said to be particularly so as it was imposed without following the requirements of clauses 22 and 23 of the Agreement. 249 In addition, it was stated that Mr Cherunkunnel’s case was not a circumstance in which an expedited procedure, under clause 23.5(g) of the Agreement, applies.250

[21] Further, it was argued that the Respondent should not have imposed a final warning on the basis of material it had and without going through the steps required by clause 23.5 of the Agreement nor after a fair and proper investigation. 251 The procedure adopted by the Respondent was described as unjustified and not a legitimate exercise of its power and also unfair, which has caused detriment to Mr Cherunkunnel. Further, it was contended that it was not in accordance with clause 23 of the Agreement.252

Non compliance with clause 23

[22] It was submitted on behalf of the Applicant that it is clear from the Respondent’s evidence that there is a fundamental misunderstanding of what an investigation consists of, pursuant to the Agreement. It was stated that the show cause meeting on 21 January 2014 does not satisfy the investigation procedure as the investigation was well and truly over by the time of the meeting. Mr Cherunkunnel argued that this meeting was a disciplinary meeting and not part of the investigation. 253

[23] Mr Cherunkunnel contended that clause 23.1 envisages that he would be part of the investigation. It was said to utilise the words “procedural fairness”. 254 In this regard, it was submitted that, neither Mr Cherunkunnel nor Ms Robb (his immediate Manager), nor other senior colleagues who could vouch for him, were ever contacted by the investigator.255 It was also argued that the investigation involved speaking to people that it was known would say adverse things about Mr Cherunkunnel.256 Further, the investigator seemed not to have had access to Client O’s file to understand that she suffers from a disturbed mind at times. The Medical Officer also appeared not to have been consulted.257

[24] Further, it was submitted that Alfred Health has misread clause 23.2 so as to encompass a separate process altogether from the investigation. It was stated that this could not be what the Agreement envisaged. This is because clause 23.2 is headed ‘investigative procedure’ and it uses the word ‘interview’ (as part of the investigation).

[25] With respect to the evidence of the various witnesses, it was stated that Ms Menzies maintained her view that the Applicant was an excellent nurse and that she believed that, either the allegations did not happen or that they did not truly reflect the context. 258 In relation to Mr Cherunkunnel, it was contended that he impressed as an honest witness who maintained his credibility during cross examination. It was stated that his evidence of what had occurred at the meetings on 26 November 2013 and 21 January 2014 was consistent and honest. Mr Cherunkunnel was said to be well familiar with the National Mental Health Standards and that he properly conceded that, should the allegations be true, they would constitute conduct below the acceptable standard.259 In terms of Ms Hua, it was stated that she impressed as a self-righteous witness and that her views needed to be tempered with the experienced views of Mr Cherunkunnel and Ms Menzies who are highly experienced nurses.260

[26] It was stated that the Applicant hotly contests the evidence of Ms Birks and Ms Hua and that it had been squarely put, during the hearing, that their versions were not accurate or true. 261

(b) On behalf of Alfred Health

[27] In relation to the questions for determination, posed by Alfred Health in paragraph 5 above, Alfred Health made the following submissions.

Were the allegations serious?

[28] Alfred Health argued that, if the alleged conduct occurred, it was serious enough to warrant dismissal. This was because the allegations were said to go to the very basis of the duties of a registered nurse in a mental health service. It was stated that a mental health service has a special responsibility to provide client centred care within the National Mental Health Principles. 262 It was stated that a registered nurse is expected to have appropriate and contemporary practice and that Mr Cherunkunnel, as an employee, has additional responsibilities under his position description.263

[29] It was argued that the investigator’s report and recommendation are clear as to the serious nature of the allegations. The seriousness of the allegations was stated to have been supported by uncontested evidence from Ms Birks and Ms Keppich-Arnold. Further, it was contended that Mr Cherunkunnel’s comments about his practice support this contention. 264 Further, Ms Hua’s evidence was described as uncontested and unshaken by cross examination. Alfred Health contended that Ms Hua is not a “self-righteous, inexperienced graduate nurse” as has been categorised by Mr Cherunkunnel.265 It was submitted, therefore, that there is ample uncontested evidence that the allegations were serious and go to the capacity of Mr Cherunkunnel to undertake the role of a registered nurse and Associate Charge Nurse.266

Was Alfred Health able to form a view that the events occurred?

[30] Alfred Health argued that they undertook a number of actions to conduct an appropriate investigation into the allegations. Having heard the complaints, Alfred Health decided to conduct an investigation, using an external investigator, to interview the complainants and prepare a report. It was contended that none of Alfred Health’s witnesses were tested as to their ability to form a view or that the investigation report was flawed in its outcome. Alfred Health argued that, like any employer, it is required to conduct a fair and balanced report within the capacity of the employer. The Commission’s attention was drawn to an authority 267 in relation to the duty of care.

Were the disciplinary procedures at clause 23 of the Agreement followed and was the applicant afforded procedural fairness?

[31] It was submitted by Alfred Health that:

Clause 23 does not state that the employee who has allegations made against them is entitled to contribute to the investigation. The clause is specific at 23.3 that, once the investigation is completed, the employer forms a view and then puts the allegations to the employee. 268

Clause 23 does not go to a stand down process, which is undertaken through the exercise of the employer's common law right. 269

There is no need or right for a support person to be present, under clause 23, because this is not part of the investigation. 270

There is no requirement for the Applicant to have the name or qualifications of the investigator under clause 23 of the Agreement. 271

The investigation commenced after the stand down and the Applicant was not required to respond to the allegations in the stand down meeting. The letter of 26 November 2013 was clear about the process once the investigation was completed. This was that Mr Cherunkunnel would be notified, as soon as possible, to attend a meeting to discuss any findings from the investigation and to respond to them. 272

Clause 23.1 requires that any allegation should be put in writing. This was done in the letter to the Applicant’s representative, with the report also being sent to the Applicant. 273

[32] With respect to clause 23.2 (procedural fairness), it was argued by Alfred Health that clause 23.2(a) was undertaken in the meeting with Mr Cherunkunnel on 21 January 2014 when he provided verbal and written responses. In terms of the requirements of clause 23.2(b), it was argued that the reason for the interview under the disciplinary clause was explained in the show cause letter dated 14 January 2014. With respect to clause 23.2(c), it was stated that Mr Cherunkunnel was provided with the material forming the allegations. Mr Cherunkunnel’s responses were considered by Alfred Health, in accordance with clause 23.2(d). Finally, it was submitted that Mr Cherunkunnel had his legal representative with him at the meeting on 21 January 2014 (clause 23.2(e)). 274

[33] In relation to whether Alfred Health afforded Mr Cherunkunnel procedural fairness under clause 23, Alfred Health relied on the process set out in paragraphs [31] to [32] above. 275

Is the first and final warning appropriate?

[34] It was submitted that, through the uncontested evidence of its witnesses, a previous warning was given to Mr Cherunkunnel. As Alfred Health considered that the conduct warranted termination, the options under the Agreement were either clause 23.5(f) or clause 23.5(g). Ms Keppich-Arnold’s evidence was said to explain why Alfred Health chose the clause 23.5(g) pathway. It was argued that this option was open to the employer given the outcome of the report and Mr Cherunkunnel’s responses. 276

[35] In relation to the evidence of Ms Menzies and Mr Cherunkunnel, it was argued that their evidence should be given less weight. This was on the basis that Ms Menzies did not witness the alleged incidents and that she believed that they either did not occur or have been misinterpreted and/or misrepresented. 277 With respect to the evidence of Mr Cherunkunnel, it was argued that he had attempted to portray his actions, the ARCC, the clients and the Respondent's witnesses in a light which was different to the reality of the work situation. Further, it was contended that Mr Cherunkunnel had tried to characterise himself as an employee who has worked for eight years and has not received any negative feedback regarding his performance, whilst omitting to say that he had received negative feedback from Ms Keppich-Arnold, Ms Birks and Ms Gilbert.278

[36] As well, Alfred Health maintained that Mr Cherunkunnel also tried to discredit witnesses without any evidence, for example, Ms Cone and Ms Hua. In addition, it was argued that Mr Cherunkunnel also tried to discount the evidence of Mr Vokoun, who, it became clear, is the senior clinician involved with the same clients as Mr Cherunkunnel. 279

[37] Alfred Health submitted that the application be dismissed and that the first and final warning be confirmed. In addition, the remedies sought by Mr Cherunkunnel, in his application, should also be dismissed. Further, findings were sought that:

Alfred Health has properly applied the Agreement terms for disciplinary matters.

Alfred Health is entitled to form a view on the balance of probabilities that events occurred.

The allegations and investigation identified behaviours that are incompatible with a Registered Nurse’s role and their responsibilities under the Mental Health Policy and Practice Framework.

Alfred Health is entitled to give a first and final warning under the agreement for serious misconduct, as an alternative to termination. 280

6. Considerations and Conclusions

[38] The parties’ respective contentions and questions to be determined, by arbitration, are set out in paragraphs [3] - [5] above. As can be seen, there was no specific or clear agreement between the parties regarding the issues to be determined by the Commission in this arbitration. However, although differently expressed, issues have been raised by both parties in relation to clause 23 of the Agreement. Therefore, an assessment of whether Alfred Health followed the disciplinary processes set out in clause 23, in relation to Mr Cherunkunnel, is an appropriate starting point for this decision.

Did Alfred Health follow the disciplinary and procedural processes in clause 23 of the Agreement?

[39] At this point, it is useful to set out clause 23 of the Agreement:

“23. Discipline

Where an employer has concerns about the conduct of an employee, or a performance issue that may constitute misconduct, the following procedure is to apply.

23.1 Investigative procedure

(a) The employer will advise the employee of the concerns in question and any allegation in writing and conduct a fair investigation having proper regard to procedural fairness and the factors set out below.

23.2 Important procedural factors at this point in time include:

(a) The employer must take all reasonable steps to give the employee a reasonable opportunity to answer any concerns or allegations.

(b) The reason for any interview is to be explained.

(c) The employee is to be provided with any material which forms the basis of the concerns and any allegation against him or her and given a reasonable time to respond.

(d) If the employee raises an issue in his or her response to the employers concerns or allegations, that warrants further investigation, the Employer shall take reasonable steps to investigate the matter.

(e) A reasonable opportunity is to be provided for a support person or representative of the Employee’s choice to attend all interviews or meetings conducted by the employer with the employee.

23.3 Disciplinary procedure

(a) If following the investigation, the employer reasonably considers that the employee’s conduct may warrant disciplinary steps being taken, the employer will notify the employee in writing of the basis of its view and any allegation and meet with the employee.

23.4 In considering whether the employee should be disciplined the employer will consider:

(a) whether there is a valid reason related to the conduct of the employee arising from the investigation justifying the disciplinary process;

(b) whether the employee knew or ought to have known that the conduct was below acceptable standards; and

23.5 Possible outcomes

Where it is determined that after following the procedures in this clause that disciplinary action is warranted, the employer may take any of the following steps depending on the seriousness of the conduct:

(a) counsel the employee, with the counselling recorded on the employee’s personnel file;

(b) give the employee a first warning, which will be verbal and a record of the warning recorded on the personnel file;

(c) give the Employee a second written warning in the event that the Employee has previously been given a first warning within the previous 12 months for that course of conduct;

(d) give the Employee a final written warning in the event that the Employee has previously been given a second written warning within the preceding 18 months period for that course of conduct;

(e) Terminate the Employee on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months;
or

(f) Terminate the Employee without notice where the conduct is serious misconduct (as defined for the purposes of the Fair Work Act) that is wilful and deliberate.

(g) In case of misconduct warranting termination, either summarily or on notice, the Employer may issue the Employee with a final warning without following the steps in (a) to (f) above.

(h) The employer’s decision and a summary of its reasons will be notified to the employee in writing.

(i) If after any warning, a period of 12 or 18 months elapses (as relevant) without any further warning being required, all adverse reports relating to the warning must be removed from the Employee's personnel file.

23.6 A dispute over the clause is to be dealt with in accordance with the Dispute Settling procedure of this Agreement.”

[40] As can be seen from the above, clause 23 sets out the procedure which applies where an employer has concerns about a conduct or performance issue that may constitute misconduct. The procedure has two parts - an Investigative procedure (clauses 23.1 and 23.2) and a Disciplinary procedure (clauses 23.3 - 23.5). The Investigative procedure requires that the employer will advise the employee, in writing, of the concerns and any allegations. It also states that the employer will conduct a fair investigation having proper regard to procedural fairness and the factors set out in clause 23.2.

[41] The preamble to clause 23.2 states that the important procedural factors “at this point in time include....” (Italics added) ie. they apply to the Investigative procedure. The important procedural factors commence at clause 23.2(a), which states that the employer must take all reasonable steps to give the employee a reasonable opportunity to answer any concerns or allegations. Further, clause 23.2(d) indicates that, if the employee raises an issue in his/her response that warrants further investigation, the employer shall take reasonable steps to investigate the matter. Clause 23.2 also specifies other procedural factors including provision of the reasons for any interview (clause 23.2(b)); the provision of any supporting material on which the employer relies (clause 23.2(c)) and the provision of a reasonable opportunity for a support person or representative to attend all interviews or meetings conducted by the employer with the employee (clause 23.2(e)).

[42] The next heading is Disciplinary Procedure - clause 23.3. Clause 23.3(a) states that, if, after the investigation, the employer reasonably considers that the conduct may warrant disciplinary action, the employer will notify the employee of the basis of its view and any allegations and meet with the employee. The factors to be considered in deciding whether the employee should be disciplined are set out in clause 23.4. Where it has been determined that disciplinary action is warranted, clause 23.5 sets out the possible options. Clause 23.5(g) provides that, in the case of misconduct warranting termination, the employer may issue a final warning without following the steps in clause 23.5(a) to (f).

[43] Therefore, it can be seen that clause 23 provides for two sets of procedures - an investigative procedure and a disciplinary procedure. It is clear that the disciplinary procedure (clause 23.3) takes place after the investigative procedure as clause 23.3(a) commences with the words “If following the investigation...”.

[44] In relation to Mr Cherunkunnel, it appears that Alfred Health commenced an investigative procedure in relation to the complaint made by Ms Hua. At the meeting on 26 November 2013, Mr Cherunkunnel was provided with a letter indicating that Alfred Health believed that he may have made comments undermining and derogatory to the management, staff and clients of the ARCC. The letter also advised that an external investigator had been engaged to investigate the allegations. The investigator’s report and recommendation was provided to Alfred Health on 2 December 2013. It is apparent that, as part of the investigation, the investigator met with a number of people including Ms Hua, Ms Cone and Client O. The people interviewed did not include Mr Cherunkunnel.

[45] It was argued by Mr Cherunkunnel that Alfred Health had not complied with clause 23 of the Agreement as he was not interviewed as part of the Investigative procedure under clauses 23.1 and 23.2. On the other hand, Alfred Health contended that clause 23 did not specifically require the employee concerned to be interviewed as part of the investigation. In satisfying the requirements of clause 23.3, and conducting a fair investigation under clause 23.1, Alfred Health submitted that it had complied with the requirements of clause 23 by its letter dated 14 January 2014 and the show cause meeting which was held on 21 January 2014.

[46] Whilst clause 23.2 does not explicitly state that the employee, about whom there are concerns/allegations, will be interviewed as part of a fair investigation, it is clearly implied in the procedural factors which guide the investigation (clause 23.2). The procedural factors would have no work to do, if it is not taken to be part of the procedure, that the employee will be interviewed. The procedural factors contained in clause 23.2 are irrelevant if, as part of the investigation, the employee concerned is not interviewed. Providing the employee with a reasonable opportunity to answer any allegations or concerns and respond to any material (clause 23.2(a)) can realistically only take place during an interview which forms part of an investigation. Clause 23.2(b) follows and specifically states that the reason for any interview is to be explained to the employee. The clause, at 23.2(e), also provides the employee with the opportunity to have a support person at “all interviews or meetings”. In the context of an investigative procedure, what could these “interviews or meetings” be if they do not include the employee concerned being interviewed by the investigator? This is irrespective of whether the investigation is conducted by an internal or external investigator. Clause 23.2(c) requires that, as part of the investigative process, the employee is to be provided with any material which forms the basis of any concerns or allegations. This is to facilitate the employee being able to answer any concerns or allegations (clause 23.2(a)). As all of these procedural factors relate to the employee, if the employee is not interviewed as part of the investigation, the investigation would not have been conducted in a fair manner with proper regard having been given to procedural fairness (clause 23.1(a)). Further, clause 23.2(d) provides for a further investigation if the employee raises an issue in their response which warrants it. What is the mechanism for an employee to respond if it is not an interview?

[47] Further, the clause requires the employer to conduct a “fair investigation”. Taking into account procedural fairness principles, it cannot be said that a fair investigation is one where the employee concerned is not interviewed by the investigator. It would appear to be a fundamental requirement of procedural fairness that an employee, the subject of the allegations, be interviewed along with all of the other relevant people, as part of an investigation into the allegations. Otherwise, an investigator is only hearing one side of the story with the result that their report and recommendations can only be unfair and the investigator has not considered everybody’s account of what happened, prior to making their recommendations. As well, if the employee is not interviewed, that person is denied an opportunity to respond to the allegations and to raise issues that warrant further investigation. Further, as happened in this case, Mr Cherunkunnel was not given the opportunity to put forward his view prior to the investigator making a recommendation. This meant that Mr Cherunkunnel was placed in the position of having to respond to a recommendation that he show cause as to why his employment should not be terminated - without having been heard in relation to his version of events prior to the investigator forming a view/making a recommendation. The recommendation in this case, was that Mr Cherunkunnel show cause as to why he should not be dismissed. This approach to an investigative procedure can, accordingly, only be described as procedurally unfair.

[48] Clause 23.3 - Disciplinary procedure - sets out what may occur following the investigation. In summary, it contemplates what has been described as a “show cause” meeting, together with the accompanying processes e.g. a letter setting out any allegation, the reasons for forming the view that the employee’s conduct may warrant a disciplinary action and advice of a meeting date. It was Alfred Health’s contention that, as there was no requirement to interview Mr Cherunkunnel as part of the investigation, clause 23 has been complied with, and in particular, clause 23.3. Taken in isolation, it would technically speaking, appear from the evidence that Alfred Health complied with the requirements of clause 23.3. This is on the basis of the letter of 14 January 2014 which set out the two allegations and attached the investigation report. Further, a meeting was held with Mr Cherunkunnel and his legal representative on 21 January 2014.

[49] During that meeting, it was Mr Cherunkunnel’s evidence that he was given an opportunity to respond to the allegations. Despite that, Mr Cherunkunnel was clearly of the view that the decision had already been made by Alfred Health and so he felt that he was not able to fully argue his case. I accept Mr Cherunkunnel’s views on this issue, hence the finding that Alfred Health technically complied with clause 23.3 in terms of following the required process. However, procedural fairness would require that the process genuinely provided the employee with an opportunity to give an explanation for their conduct (clause 23.4(c)). As the investigator, without interviewing Mr Cherunkunnel, had recommended that he show cause why he should not be dismissed, it cannot be said that Mr Cherunkunnel was genuinely able to respond to the allegations, given the stage in the process when this occurred.

[50] Taking all of this into account, I find that, in relation to Mr Cherunkunnel, Alfred Health did not comply with the requirements of clause 23 of the Agreement. This is on the basis that clauses 23.1 and 23.2 were not followed at all and clause 23.3 - in part only. Mr Cherunkunnel was not afforded an interview with the investigator (which could have been arranged for before or after his prearranged leave). Because of this failure, Mr Cherunkunnel was unable to access the procedural factors (protections) contained in clause 23.2 of the Agreement. Further, Mr Cherunkunnel was not advised that he could have a support person or representative at the meeting on 26 November 2013. Alfred Health did comply with the requirements of clause 23.3 and 23.4 in that Mr Cherunkunnel was notified, generally, in writing of the allegations and given a copy of the investigators report. Alfred Health also advised Mr Cherunkunnel that it considered that his conduct may warrant disciplinary action. A meeting was held with Mr Cherunkunnel and his representative to discuss the issues and Mr Cherunkunnel was able to respond to the allegations and to put his side of the story. However, given the comments in paragraph [49] above, clause 23.3 was followed in form rather than in substance.

Was the final warning warranted?

[51] A further issue raised in Mr Cherunkunnel’s submissions, was the contention that the imposition of a final warning was harsh. This was on the grounds that, on the material before it, there was no basis for Alfred Health to issue Mr Cherunkunnel with a final warning. On the other hand, Alfred Health submitted that the allegations were serious enough to warrant a final warning. From my reading of the submissions of the parties, therefore, the parties also wish the Commission to make a finding about whether or not the final warning was warranted.

[52] In relation to the merits of the dispute ie. whether or not a final warning should have been given to Mr Cherunkunnel, the Commission has had the benefit of hearing from all of those involved. During the hearing, Mr Cherunkunnel has had the opportunity to put his case and also to reply to the material put forward by Alfred Health.

[53] It was stated by Alfred Health that the reason for issuing Mr Cherunkunnel with a final warning was as a result of Alfred Health forming serious concerns regarding Mr Cherunkunnel’s ability to practice in accordance with Alfred Health’s current model and philosophy of care. The final warning came at the end of the process which was commenced as a result of a complaint by Ms Hua to Ms Birks, amongst other things, in relation to Mr Cherunkunnel’s comments about clients. Ms Hua also made a further complaint about Mr Cherunkunnel, in relation to Client K, during her interview with the investigator. Ms Hua gave evidence regarding this additional incident during the Commission hearing. The details of these incidents have been fully set out in the summary of the evidence above. There is therefore no necessity to comprehensively repeat them here.

[54] The essence of Ms Hua’s complaint is that Mr Cherunkunnel’s approach to clients was based on personal opinion and individual style rather than reflecting clinical reasoning or best practice. The basis for Ms Hua’s views was:

Mr Cherunkunnel’s comments to Ms Hua in response to feedback to him about a client’s concerns about his treatment of her. Mr Cherunkunnel was said to have been upset that she (Ms Hua) had spent time with Client O, telling her that she should yell at Client O and be more assertive. Client O was described as staff splitting and Ms Hua was told that she needed to ignore her. Mr Cherunkunnel also allegedly said that “She’s just a prostitute at the end of the day.”

Mr Cherunkunnel’s feedback to her after she had spent time with Client K. Mr Cherunkunnel’s comments to Ms Hua were said to have included criticism of her for having spent 2 - 3 hours engaged with Client K. Mr Cherunkunnel allegedly told her that they did not talk to clients like that and that, if she spent time with Client K, then the other staff would have to too. It was also recalled that Mr Cherunkunnel had said that “It is Client K’s problem if she doesn't eat”.

[55] Mr Cherunkunnel categorically denied that he had said the things that he was alleged to have said by Ms Hua. He argued that Ms Hua was an inexperienced graduate nurse who might have made the allegations because she felt she was not valued. Because of Ms Hua’s inexperience, Mr Cherunkunnel contended that she had misinterpreted the interactions so that they appeared in a negative light. It was also Mr Cherunkunnel’s view that most of the allegations were untrue with the others either gross exaggerations or misrepresentations.

[56] In making the decision to issue Mr Cherunkunnel with a final warning, Alfred Health took into account previous discussions with Mr Cherunkunnel regarding his performance, together with the verbal warning. These were said to include issues of a similar nature e.g. Ms Cone’s bullying and harassment complaint and the complaint by Mr Scherger. During the interview with the investigator, Ms Cone had also recounted that Client K had complained that Mr Cherunkunnel had told her that she was not allowed to use the heater in her room because it costs too much. Mr Cherunkunnel denied that he had told Client K that she could not use the heater in her room because it was too costly.

[57] There were different views as to whether or not Mr Cherunkunnel was given a verbal warning, by Ms Keppich-Arnold, regarding his behaviour, following the meeting on 12 February 2013. Ms Keppich-Arnold’s evidence, together with the document that was forwarded to Human Resources for placement on Mr Cherunkunnel’s file, was that Mr Cherunkunnel had been given a verbal warning on 19 March 2013. Mr Cherunkunnel disagreed that Ms Keppich-Arnold had given him a verbal warning. He acknowledged that he had received negative feedback from Ms Keppich-Arnold during that meeting. He recalled that Ms Keppich-Arnold had been hostile and was unhappy and so he had not argued with her during the meeting. Mr Cherunkunnel did acknowledge that he had had a conversation with Ms McFarlane.

[58] Evidence was given by Mr Vokoun at the hearing and he was interviewed by the investigator. However, no formal complaints were made by Mr Vokoun, regarding Mr Cherunkunnel’s conduct and approach to clients. Mr Vokoun’s evidence went to his view that Mr Cherunkunnel’s approach to clients was no longer appropriate as the service had changed to a Recovery focused service. He described Mr Cherunkunnel’s approach as being dictatorial and coercive towards clients.

[59] Mr Cherunkunnel denied that the particular incidents raised by Mr Vokoun had occurred. He disputed that he was not providing a caring and supportive environment for clients. He agreed that the National Mental Health Standards and Alfred Health’s Recovery oriented values principles applied and that the Standards require, amongst other things, that the customer’s preferences and demands should be heard. However, Mr Cherunkunnel qualified this by saying that the customer’s preferences and demands should be heard, as long as they are reasonable. He explained that he applied a filter, as to what he regarded as reasonable and not reasonable, to a client’s request. Mr Cherunkunnel also recounted an occasion when he had said ‘No’ to one of Client O’s many requests for milk tea or coffee, stating that it indicated poor financial management. He recalled that he had mentioned to Client O that she needed help from her Case Manager to better manage her finances.

[60] The show cause letter, dated 14 January 2014, set out the issues of concern for Alfred Health. These were that Mr Cherunkunnel had failed in his duty of care by making inappropriate comments about clients. Secondly, it was alleged that Mr Cherunkunnel had treated clients in an inappropriate manner and had failed to provide them with a caring and safe environment. The final warning stated that Alfred Health had serious concerns about Mr Cherunkunnel’s ability to practice in line with Alfred Health’s current model and philosophy of care.

[61] The evidence shows that, over the previous 18 months or so, Alfred Health had engaged in a consultation process with staff regarding implementation of a new model of care - a recovery model of care. As part of this new approach, occupational therapists were being placed on the roster. It also appears that there were teething problems associated with implementation of the new model of care.

[62] Putting aside the findings of the external investigator, on the basis of the evidence given during the hearing, I find, on balance, that Mr Cherunkunnel’s approach to clients was not consistent with Alfred Health’s recovery model of care nor the National Mental Health Standards. It also appeared to not have been client centred care as required under the National Mental Health principles nor founded in a need to establish therapeutic relationships with residents. In relation to Mr Cherunkunnel’s evidence, I accept Ms Keppoch-Arnold’s uncontested assessment that Mr Cherunkunnel’s own description of Client O, in his statement, 281 is not consistent with professional standards or recovery frameworks.282 Ms Keppich-Arnold also reflects on Mr Cherunkunnel’s evidence that he had told Client O that she needed to follow the rules regarding smoking and also that he had told Client O “No”, that she could not have sugar, milk and coffee when she had failed to manage her finances. It was Ms Keppich-Arnold’s view that, within a framework of recovery, professional language would not include “I told you…” instructions or the use of “No”, as this was not recovery focused. Rather, such an approach was described as very disempowering and alienating and not within Alfred Health’s expectation of professional conduct or was it demonstrative of a therapeutic relationship.283

[63] Ms Keppich-Arnold also gave uncontested evidence that she had provided Mr Cherunkunnel with informal feedback when she had discovered that rubbish had been left and that the house was in a dishevelled state. Mr Cherunkunnel’s response was recalled to have been that the recovery model meant that staff did not do things for residents and that it was not his job to clean up. It was stated by Ms Keppich-Arnold that she had talked to Mr Cherunkunnel about engagement and support for clients and the processes for establishing therapeutic relationships with residents. 284

[64] In relation to whether or not Ms Keppich-Arnold gave Mr Cherunkunnel a verbal warning in relation to the complaints by Ms Cone and Mr Scherger, on the balance of probabilities, it is more than likely that this did occur. Given that Mr Cherunkunnel and Ms Keppich-Arnold have different recollections of their conversation, I have been persuaded that this did occur by the email sent by Ms Keppich-Arnold to Mr Quirk. There is no evidence before me which would support a conclusion that Ms Keppich-Arnold was not being truthful in her email to Mr Quirk.

[65] Further, Mr Vokoun’s evidence, which I accept, was that he had told Mr Cherunkunnel that his role was to support clients to be independent, following an incident when Client O missed a dental appointment. This was said to have been in response to Mr Cherunkunnel’s reply to him, that staff would not support Client O getting to her first appointment by going with her. Mr Vokoun also said that he had spoken to Mr Cherunkunnel about moving away from his coercive and dictatorial practices, when dealing with residents, to a recovery focused model. 285

[66] In relation to the complaint made by Ms Hua, on the balance of probabilities, I find that it is most likely that Mr Cherunkunnel made the comments as alleged about Client O and Client K. When placed in the surrounding evidence of Ms Keppich-Arnold and Mr Vokoun, which is accepted, such comments are consistent with what seems to be Mr Cherunkunnel’s practice.

[67] Finally, the context in which the complaints were made about Mr Cherunkunnel was at the time that Alfred Health was changing the model of care from a more “traditional” approach to a client focused recovery model. It seems from the evidence that Mr Cherunkunnel was not convinced about the change and, therefore, had not altered his natural and usual practice to a therapeutic client focused approach. Given this context, it is my view that it would have been unreasonable for Alfred Health to move to dismiss Mr Cherunkunnel, very serious though his conduct was, even taking into account the previous professional discussions and verbal warning. On the basis of the evidence before me, I find that Alfred Health, in not terminating Mr Cherunkunnel’s employment but deciding to issue him with a final warning, in accordance with clause 23.5(g), together with providing him with support (the Performance Improvement Plan) to transition to the new model of care, took an appropriate approach in dealing with the issues relating to Mr Cherunkunnel’s nursing practice.

Appearances:

Ms A Kapitaniak of Counsel for the Applicant

Mr R Corboy of VHIA for the Respondent

Hearing details:

2014.

Melbourne:

December 1.

Final written submissions:

Applicant, 29 December 2014

Respondent, 30 January 2015

Applicant, 2 February 2015

1 Exhibit A6 at paragraph 11 and Exhibit R8 at paragraphs 12 -13

2 Final Submissions on behalf of the Applicant, dated 27 December 2014, at paragraph 3

3 Ibid at paragraph 6

4 Ibid at paragraph 5

5 Final submissions for Alfred Health, dated 30 January 2015, at paragraph 2

6 Final submissions on behalf of the Applicant, dated 27 December 2014, at paragraphs 7 - 10

7 Exhibit A1 and Transcript PN 149

8 Ibid at paragraph 3 and ibid PN 159

9 Ibid at paragraph 4 and ibid PN 160 - 164

10 Ibid PN 165 - 166

11 Ibid PN 118 - 119

12 Ibid PN 125 - 126, 129 - 131 and 134 - 135 and Exhibit A1 at paragraph 12

13 Ibid PN 132

14 Ibid PN 133 and 140

15 Ibid PN 144 - 145

16 Ibid PN 147 - 148 and 151 - 152

17 Ibid PN 150 - 156

18 Ibid PN 158

19 Exhibit A2 at paragraph 2

20 Ibid at paragraph 4

21 Transcript PN 211 - 216

22 Ibid PN 239 and Exhibit A2 at paragraphs 15 - 16

23 Ibid at PN 239 and ibid at paragraph 18

24 Ibid PN 239 and 994 - 996 and ibid at paragraph 22

25 Ibid at PN 264 and 989 and ibid at paragraphs 15 and 17

26 Ibid PN 245 - 250, 298 - 303, 321 - 322, 989 and 1014 - 1015, ibid at paragraph 17(b) and Exhibit A4

27 Transcript PN 990

28 Ibid PN 265 - 268 and 1018, Exhibit A2 at paragraph 23 and Exhibit A5

29 Ibid PN 997

30 Ibid PN 272 - 281

31 Ibid PN 282 - 285

32 Ibid PN 286 - 295 and Exhibit A2 at paragraph 24

33 Ibid PN 323 - 333

34 Ibid PN 334

35 Ibid PN 335 - 345 and Exhibit A2 at paragraph 26

36 Ibid at paragraph 27

37 Ibid at paragraph 28(a) and Transcript PN 355 - 361 and 428 - 430

38 Ibid PN 431 and 448 - 453

39 Ibid PN 362 - 365

40 Ibid PN 370 and Exhibit A2 paragraph 28(b)

41 Ibid PN 390 - 392 and ibid at paragraph 28(c)

42 Ibid PN 394 - 396 and ibid

43 Ibid PN 434

44 Ibid PN 456 - 459

45 Ibid PN 460 - 462

46 Ibid PN 465 - 468

47 Ibid PN 469 - 470

48 Ibid PN 472 - 478

49 Ibid PN 486 - 487

50 Ibid PN 489 and Exhibit A2 at paragraph 28(d)

51 Ibid PN 490 - 493

52 Ibid PN 495

53 Ibid PN 496

54 Ibid PN 505 - 506

55 Ibid PN 507

56 Ibid PN 512 and Exhibit A2 at paragraph 28(e)

57 Ibid PN 513 - 514 and ibid at paragraph 28(f))

58 Ibid PN 533 and 544 - 547 and Exhibit A3 at paragraph 21

59 Ibid PN 549

60 Ibid PN 558 - 561

61 Ibid PN 572 - 574 and 654

62 Ibid PN 577 and 584 - 585

63 Ibid PN 593 - 607 and Exhibit A3 at paragraph 26

64 Ibid PN 622 - 625

65 Ibid PN 631 - 633

66 Ibid PN 719 - 731, 768 - 771, 849, 853 and 856 and Exhibit A3 at paragraph 29 on page 8

67 Ibid PN 828 - 831, 847 - 848, 850 - 852 and 966

68 Ibid PN 961 - 964

69 Ibid PN 965 and 869

70 Ibid PN 837

71 Ibid PN 837, 844 - 846 and 857

72 Ibid PN 866 - 868

73 Ibid PN 794 - 795 and 832 - 834

74 Ibid PN 796 - 823

75 Ibid PN 825

76 Ibid PN 858 - 860

77 Ibid PN 772, 774, 854, 943, 954, 957 and 967 - 971

78 Ibid PN 943 and 954

79 Ibid PN 639

80 Ibid PN 640 - 644

81 Ibid PN 646

82 Ibid PN 646 - 648

83 Ibid PN 660 - 663, 676 and 681

84 Ibid PN 666 and 675

85 Ibid PN 979 - 981

86 Ibid PN 677 - 681

87 Ibid PN 682

88 Ibid PN 941 - 942

89 Ibid PN 959 - 960

90 Ibid PN 973 - 974 and 976 - 978

91 Ibid PN 975

92 Ibid PN 984

93 Ibid PN 1020 - 1026

94 Ibid PN 1059 and Exhibit R2 at paragraphs 5 - 6

95 Ibid PN 1058

96 Ibid PN 1060 - 1061 and Exhibit R2 at paragraph 6

97 Ibid PN 1066 - 1075 and ibid at paragraph 8 and Attachment 2

98 Ibid PN 1076 and 1092

99 Exhibit R2 at paragraph 10

100 Ibid at paragraph 10 and Transcript PN 1096

101 Ibid at paragraph 10 and Attachment 5 and ibid PN 1096

102 Ibid PN 1095

103 Ibid PN 1101 - 1102

104 Exhibit R2 at paragraph 12

105 Transcript PN 1106

106 Ibid PN 1121

107 Ibid PN 1106 - 1107 and 1113

108 Ibid PN 1108

109 Ibid PN 1114

110 Ibid PN 1122 - 1126 and Exhibit R2 at paragraph 15

111 Ibid PN 1129 - 1131 and 1154 and ibid at paragraph 16 and Attachment 8

112 Ibid PN 1162 - 1163

113 Ibid PN 1168

114 Ibid PN 1165 and 1167

115 Ibid PN 1172 - 1175

116 Ibid PN 1176 and Exhibit R2 at paragraph 19

117 Ibid PN 1177 and 1179 - 1181

118 Exhibit R2 at paragraph 19

119 Transcript PN 1188 and 1191

120 Ibid PN 1195

121 Exhibit R2 at paragraph 19

122 Ibid at paragraph 19 and Transcript PN 1197

123 Ibid and ibid PN 1197

124 Ibid at paragraph 19

125 Transcript PN 1198 - 1200

126 Ibid PN 1201 and Exhibit R2 at paragraph 20

127 Ibid PN 1202 - 1203 and ibid at paragraph 21

128 Ibid PN 1205 and ibid

129 Ibid PN 1207 - 1208 and ibid

130 Ibid PN 1209 - 1210

131 Ibid PN 1211

132 Ibid PN 1213 - 1217 and Exhibit R2 at paragraphs 22 - 23 and 34

133 Ibid PN 1266

134 Ibid PN 1218 - 1219

135 Exhibit R2 at paragraph 24 and Attachment 15

136 Transcript PN 1221 - 1224

137 Ibid PN 1225 - 1227 and 1232 - 1233

138 Ibid PN 1228 - 1231

139 Exhibit R4 at paragraph 5

140 Transcript PN 1289 - 1291 and 1341 - 1343

141 Ibid PN 1344

142 Ibid PN 1292 - 1293 and Exhibit R4 at paragraph 16

143 Ibid PN 1287 and 1297 and ibid at paragraph 16

144 Ibid at paragraph 16

145 Ibid

146 Ibid and Transcript PN 1288 and 1299

147 Ibid PN 1301

148 Ibid PN 1294, 1296 and 1300 and Exhibit R4 at paragraph 16

149 Ibid PN 1295

150 Exhibit R4 at paragraph 16

151 Ibid

152 Ibid

153 Ibid and Transcript PN 1305

154 Ibid and ibid PN 1306 - 1308

155 Ibid at paragraph 17

156 Ibid at paragraph 20 and Transcript PN 1317 - 1319, 1323 - 1324, 1319 and 1335

157 Ibid at paragraph 21 and ibid PN 1309 - 1310

158 Ibid PN 1311 - 1312

159 Ibid PN 1313 - 1314 and Exhibit R4 at paragraph 21

160 Ibid PN 1315 - 1316

161 Ibid PN 1325

162 Exhibit R4 at paragraph 22

163 Ibid at paragraph 23

164 Transcript PN 1327 - 1330

165 Ibid PN 1332

166 Ibid PN 1408 - 1409 and Exhibit R5 at paragraph 6

167 Ibid PN 1409 and ibid at paragraph 9

168 Ibid PN 1409 and 1410 and ibid at paragraphs 7 and 9

169 Ibid PN 1409 and ibid at paragraphs 8 and 11

170 Ibid and ibid at paragraph 10

171 Ibid PN 1411 and ibid at paragraph 4

172 Ibid PN 1411 - 1413

173 Ibid PN 1408 and Exhibit R5 at paragraph 15

174 Ibid at paragraph 16

175 Transcript PN 1415 - 1416

176 Ibid PN 1417 - 1418

177 Ibid PN 1419

178 Exhibit R5 at paragraphs 33 - 35

179 Ibid at paragraph 36

180 Ibid at paragraph 37 and Transcript PN 1426 - 1428

181 Ibid PN 1430 - 1431

182 Ibid PN 1389 - 1390, 1447 and 1465

183 Ibid PN 1391 - 1393 and Exhibit R5 at paragraph 18

184 Ibid PN 1467 and ibid at paragraph 18

185 Ibid at paragraph 18

186 Transcript PN 1421 - 1425

187 Ibid PN 1458 - 1460

188 Ibid PN 1394 - 1395 and 1447

189 Exhibit R5 at paragraph 19

190 Ibid at paragraph 20

191 Ibid at paragraph 28 and Transcript PN 1452 - 1453

192 Ibid at paragraph 29

193 Ibid at paragraph 32

194 Transcript PN 1433 - 1434

195 Ibid PN 1461 - 1464

196 Ibid PN 1488 - 1489 and Exhibit R6 at paragraph 4

197 Ibid PN 1490 - 1492

198 Ibid PN 1493 - 1495

199 Ibid PN 1496 - 1501

200 Ibid PN 1502 - 1506 and Exhibit R6 at paragraph 6

201 Ibid at paragraph 6

202 Transcript PN 1502 - 1508

203 Ibid PN 1511 and 1543 - 1545 and Exhibit R6 at paragraph 7

204 Ibid PN 1513

205 Exhibit R6 at paragraph 7

206 Transcript PN 1519 - 1520

207 Ibid PN 1518

208 Ibid PN 1516

209 Ibid PN 1546 - 1547 and Exhibit R6 at paragraph 8

210 Ibid PN 1521

211 Ibid PN 1528, 1530 and 1548 - 1549 and Exhibit R6 at paragraph 9

212 Ibid at paragraph 9

213 Transcript PN 1527

214 Ibid PN 1529

215 Ibid PN 1531 - 1535

216 Ibid PN 1536 - 1539

217 Ibid PN 1540 - 1541

218 Ibid PN 1588 and Exhibit R7 at paragraph 1

219 Ibid at paragraph 2

220 Transcript PN 1595

221 Ibid PN 1589 - 1592 and Exhibit R7 at paragraph 3

222 Ibid PN 1597 - 1598

223 Ibid PN 1604

224 Exhibit R7 at paragraph 4

225 Transcript PN 1593 - 1594 and 1596

226 Ibid PN 1605

227 Ibid PN 1607 and Exhibit R7 at paragraph 4

228 Ibid PN 1608 - 1609

229 Ibid PN 1610 and 1640

230 Ibid PN 1617

231 Ibid PN 1618 - 1620 and 1655 - 1656

232 Ibid PN 1657 - 1659

233 Ibid PN 1623, 1643 and 1647

234 Ibid PN 1641

235 Ibid PN 1637 - 1638

236 Ibid PN 1650

237 Ibid PN 1652 and Exhibit R7 at paragraph 6

238 Ibid at paragraph 6

239 Ibid at paragraph 7

240 Ibid at paragraph 10 and Transcript PN 1648 - 1649 and 1663 - 1665

241 Ibid at paragraph 10

242 Ibid

243 Ibid and Transcript PN 1651

244 Exhibit A6 at paragraph 17

245 Final Submissions on behalf of the Applicant, dated 27 December 2014, at paragraphs 35 - 36

246 Ibid at paragraph 38

247 Ibid at paragraph 39, Exhibit A6 at paragraphs 5, 12 - 13 and 15 and Employee submissions in reply to employer’s submissions dated 30 January 2015, 9 February 2015, at paragraph 1

248 Exhibit A6 at paragraphs 6 and 8 and the Employee submissions in reply to employer’s submissions dated 30 January 2015, 9 February 2015, at paragraph 1

249 Final Submissions on behalf of the Applicant, dated 27 December 2014, at paragraph 37

250 Ibid at paragraph 40 and Exhibit A6 at paragraphs 12, 14 and 16

251 Ibid at paragraph 41

252 Ibid at paragraph 42

253 Ibid at paragraphs 28 - 30 and Employee submissions in reply to employer’s submissions dated 30 January 2015, 9 February 2015, at paragraph 1

254 Ibid at paragraph 31

255 Ibid at paragraph 32

256 Ibid at paragraph 33

257 Ibid at paragraph 34

258 Ibid at paragraph 14 and Employee submissions in reply to employer’s submissions dated 30 January 2015, 9 February 2015, at paragraph 1

259 Ibid at paragraphs 17 - 22

260 Ibid at paragraph 25 and Employee submissions in reply to employer’s submissions dated 30 January 2015, 9 February 2015, at paragraph 1

261 Employee submissions in reply to employer's submissions dated 30 January 2015, 9 February 2015, at paragraph 1

262 Final submissions for Alfred Health, dated 30 January 2015, at paragraph 3

263 Ibid at paragraph 4

264 Ibid at paragraph 5

265 Ibid at paragraph 6

266 Ibid

267 Lloyd v Mildura Base Hospital [1997] IRCA 89 (6 March 1997)

268 Final submissions for Alfred Health, dated 30 January 2015, at paragraphs 12 and 14

269 Ibid at paragraph 12

270 Ibid

271 Ibid at paragraph 14

272 Ibid at paragraph 12

273 Ibid

274 Ibid at paragraph 12

275 Ibid

276 Ibid at paragraph 13

277 Ibid at paragraph 14

278 Ibid

279 Ibid

280 Ibid at paragraph 15

281 Exhibit A2 at paragraph 28(c)

282 Exhibit R4 at paragraph 14

283 Ibid

284 Ibid at paragraph 17

285 Exhibit R6 at paragraph 9

Printed by authority of the Commonwealth Government Printer

Joby Cherunkunnel v Alfred Health

[2015] FWC 1127

12 MARCH 2015

DECISION