Kelvin Walsh v Ambulance Victoria
[2013] FWC 1999
•29 APRIL 2013
[2013] FWC 1999 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kelvin Walsh
v
Ambulance Victoria
(U2012/12308)
COMMISSIONER CRIBB | MELBOURNE, 29 APRIL 2013 |
Application for unfair dismissal remedy - application dismissed.
[1] Mr Kelvin Walsh (the applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that his dismissal by Ambulance Victoria (the respondent) was harsh, unjust or unreasonable.
[2] The application was subject to conciliation on 11 September 2012 but no agreement was reached. Hearings were held on Monday 10 December 2012, Tuesday 11 December 2012 and Wednesday 12 December 2012. United Voice filed written closing submissions on 14 January 2013 and Ambulance Victoria on 5 February 2013.
[3] Mr Walsh was represented by Ms B Forbath of United Voice (the union) whilst Ambulance Victoria was represented by Mr R Millar, of Counsel.
[4] Mr Walsh gave evidence as did Mr S Brereton, Mr T Geary and Mr P McCalman, all MICA Flight Paramedics. For the respondent, evidence was given by Mr A de Wit, Acting Manager of Air Operations, Mr M Barkmeyer, Team Leader of HEMS 3, Mr P Holman, Manager Air Ambulance and Emergency Management and Mr M Stephenson, Regional Manager, Gippsland region.
EVIDENCE
APPLICANT
Mr Walsh
Transfer from Swan Hill Hospital
[5] It was Mr Walsh’s evidence that the reason the transfer took five and a half hours was because it was a rather complicated ventilated transfer. It was his view that the time taken was not unusual for a transfer like that. 1 He said that he was unable to get a meal at the Bendigo Hospital at 11.00 pm as nothing was open.2 Further, he said that he could not have completed the paperwork (VACIS) during the flight. This was because it was forbidden for VACIS to be used in a moving vehicle. Secondly, in any event, he had been too busy with the patient.3 Mr Walsh disagreed that the re-stocking from the first two jobs would have taken 5 - 10 minutes. This was because he had used a lot of equipment due to it being a complicated ventilated transfer.4
[6] Mr Walsh gave evidence about the other jobs and things that he did during that night shift. 5
Incident - 14 August 2012
[7] Mr Walsh agreed that he received the dispatch call at 6:11am on 14 August 2011 and that the ambulance was not airborne until 6.46am with Mr Brereton on board rather than himself. He did not agree that that was an extraordinarily long delay as it was said to not be unusual on some mornings for despatches to take 15 to 20 minutes. Mr Walsh said that he could not physically get out the door at 6:11am when the phone first rings. Therefore, if another 20 minutes was put on top of that, it is a 15 minute delay beyond the time it would normally take. 6
[8] It was confirmed that he was told that it was a primary case, a head-on accident with a truck versus a car and that he knew that the driver was unconscious and pale. Mr Walsh agreed that the driver could have been dying in the vehicle. He also agreed that this was a classic Air Ambulance situation which he had been trained for and that his first duty was to get airborne without delay. He also agreed that this involved waking crew, getting what he needed on board and then departing. 7 The union contended that other paramedics had had difficulty with the procedure when it was first introduced in July 2011.8
[9] Following receiving the call at 6.11am which lasted about 4 minutes, Mr Walsh explained that he then got dressed into his flight suit and walked out of the bedroom door. 9
(d) Waking up pilot and crewman
[10] Mr Walsh completely disagreed with the proposition that he had not woken up the pilot and crewman until 6:30am. He stated that he had done what he had done for the previous 11 and a half years. It was recalled that he took the call, got dressed and walked past the pilot’s and crewman’s bedrooms, banged on the doors and told them that there was a job. 10 He stated that he specifically recalled banging on their doors.11 He said that generally, he would bang on the doors until he heard a response but on this occasion, he did not hang around to hear a response. This was because he was anxious and fixated with going out and changing the blood over.12
[11] It was Mr Walsh’s evidence that he was so anxious to get out and check the blood that he should have gone back and checked but he did not until later. He then saw that the pilot and crewman were not out of bed so he went to knock on the door again. He explained that they do not have a phone in their room so that the paramedics have to bang on the door until they wake up. It was recalled that there had been several times over the years where he had banged on their door and they simply had not woken up and that he had had to go and physically wake them up. 13
[12] It was denied by Mr Walsh that he did not in fact wake the pilot and crewman until 6:30am. He said that that was the second time that he woke them. 14 Mr Walsh explained that, if he had successfully woken the pilot and crewman up at 6:15am, he would have had to tell them that there was no rush as he had things to do before they took off. He denied that, because he knew there was going to be a delay in taking off, he had delayed waking the pilot and crewman. He further denied that he was stretching the times out past 6:11am to make sure that it was not him who took off.15 Mr Walsh stated that he was only taking the necessary time to change the blood over - that was all.16
[13] Mr Walsh acknowledged that during the second call from the Flight Coordinator, and 6.26am, he was quite agitated. This was due to anxiety because it would not load onto the computer and he ended up having to print a hard copy. He was having extreme difficulty with the computer and was also extremely fatigued and he was trying to perform these functions knowing that there was a job that needed to be done. He acknowledged that his first response to the Flight Coordinator was that he was changing the blood over and that Mr Brereton should be here in a couple of minutes. It was denied that in saying this, he was preoccupied with when Mr Brereton was going to arrive. 17 Rather, he was extremely agitated because he was trying to download the information on the computer but it would not download.18
[14] Mr Walsh agreed that, in his written response to the allegations on 5 July 2012, he had stated that he had minimal recollection of the wake-up. Mr Walsh said that this meant that he believed that he had knocked on the doors but he really could not remember whether he hung around and waited. He did not think that he did that but that he just went out to download the information. 19 It was conceded that there was a difference between his previous written response20 and his oral evidence. He explained that he was under enormous pressure at the time he wrote the letter and that he put it together so that he could get some response in.21
[15] It was recalled that he then walked out to the hangar and opened it up. 22 He said that he rang Mr Brereton whilst he was walking out to the hangar to ask him how far away he was but there was no answer. He said that he did not leave a message. Mr Walsh agreed that it was probably about 6:15am but he could not confirm exactly when it was.23
[16] Mr Brereton was said by Mr Walsh to have phoned back a few minutes later. It was recounted that he had told Mr Brereton that he had had the blood on the machine (helicopter) for the whole night, that he had to go and change it now and that there would be a delay. If he could get in earlier, that would be great. 24 He said that the connection between changing the blood and Mr Brereton arriving earlier was that, by the time he had finished downloading all the information, Mr Brereton would be there and there would no longer be a delay.25 It was stated that normal practice was for the incoming person to get there at 6.30am. He therefore knew that, by the time it took to get information for the blood, Mr Brereton would be there. He recounted that he told him that he was experiencing difficulty with downloading the information and that it was going to take some time.26 It was agreed that he was angling for Mr Brereton to come in earlier because he had more knowledge about the computer than he did.27
[17] Mr Walsh recalled that he had finished the download of the blood at the same time that Mr Brereton arrived because, in the end, he did not even try and load it to the G drive. Rather, he printed a hard copy of it. It was denied that he had timed the moment when he finished the blood changeover to coincide with Mr Brereton’s arrival which meant that Mr Brereton left rather than himself. He also denied that the whole process leading up to that was to buy time, to stretch time so that Mr Brereton would go rather than him. 28
[18] It was stated that he was not trying to find out when Mr Brereton was going to arrive so that he could do the job instead. Mr Walsh further said that he had not started to think about how he could string things out so that Mr Brereton would arrive and he could go instead of him. 29 He stated that he had not made any special arrangements with Mr Brereton to start earlier that day.30
(b) Conversation with Flight Coordinator
[19] Mr Walsh confirmed that his first response to the call was to say that they had to get a landing site and could they wait for the MICA unit to turn up? The importance of the MICA crew arriving at the scene was said to be that they could make a full assessment. 31 In terms of needing the site details, it was Mr Walsh’s explanation that the pilot and crewman liked being provided with the latitude and longitude because they could put it straight into the helicopter and fly directly to the scene.32
[20] It was denied by Mr Walsh that, by asking for the MICA team to arrive first, he thought that that was going to buy him some time so that Mr Brereton would have arrived and he would not have to go out on the job. He said that the only reason there was a delay was because he was changing the blood over due to the instructions he was given by his Team Manager. 33 Mr Walsh agreed that, because he had to change the blood over, he delayed the case.34 He said that delaying the departure to a priority case so that his colleague could go instead of him was something that he would not do because it was not the right thing to do.35 It was Mr Walsh’s evidence that “I knew there was going to be a delay because I had to go out and attend to this blood...”36 He said that he did not tell the Flight Coordinator what he was doing - that he was going out to the helicopter to change the blood over - because he was so fatigued, he hadn’t eaten and had only a couple of hours sleep after a busy night shift.37
[21] Further, Mr Walsh said that:
“I knew it was going to take me a good 15 to 20 minutes to change this blood over. That was the problem. I just didn’t verbalise it to the Flight Coordinator. That’s the biggest mistake I’ve made. I’d never delayed flights in the past. I’ve been on the helicopter for 11 ½ years. I’ve never been accused of delaying a flight. I’ve had busy night shifts before where I’ve flown off at six o’clock in the morning to do jobs and finished at 11 or 12 o’clock during the afternoon. So this is not an unusual case to come in at that time. However the unusual thing was that I had to change this blood over. That was what was verbalised to me that night from Murray, to change the blood over in the morning.” 38
And further:
“And I’m sorry I can’t move from that because that’s the truth.” 39
[22] It was denied by Mr Walsh that he had delayed the case because he did not want to go. He said that, in 11 and a half years, he had never delayed a case. He had always gone out and done the job. 40 He disagreed that, in asking if it was ok if he waited for a few minutes and saying that Mr Brereton would be here in 10 minutes, was about putting it all on hold for a little while. He said that he was so fatigued that morning that he was struggling to piece together what he was doing but that he knew that he had to go and change the blood over.41
[23] Mr Walsh stated that, during the conversation with the Flight Coordinator, he was not saying to try and wait until Mr Brereton got here because there was no great urgency in getting HEMS 3 to the scene. 42 He said that that was not how he was thinking and that he was thinking about going out and changing the blood over. He indicated that he realised that it was an urgent job but said that he was told the night before by his Team Manager to change the blood over before the end of his shift and that was what he was trying to do.43 Mr Walsh stated:
“What I’m saying is I was not attempting to delay the case apart from the fact that I had to change the blood over in the aircraft. I wasn’t waiting for Mr Brereton. I wasn’t waiting to hand over the job to him. I was going out to change the blood over. The biggest mistake I didn’t mention was - to the Flight Coordinator at the start, and I should’ve told him that I was changing the blood over.” 44
[24] Mr Walsh stated that the big mistake he made was not saying to the Flight Coordinator that he had to change the blood over. He said that he had said it during the second phone call but unfortunately, not during the first phone call. 45 He agreed that he said it on the second phone call because the Flight Coordinator was wondering what was going on and why he was not airborne. He confirmed that he should have told the Flight Coordinator that he had to do the blood changeover.46
[25] Mr Walsh explained that the initial conversation with Flight Coordinator was to the effect that it was “okay to give him (Mr Brereton) a quick call to hurry him up.” It was stated that he understood that, in saying that, the Flight Coordinator had realised that there was going to be a delay. 47 He stated that he understood that the Flight Coordinator had agreed to waiting for the MICA crew to arrive.48 Further, he understood that the Flight Coordinator had agreed to wait for the next flight crew to arrive so that that person (Mr Brereton) could go up on the helicopter. This was on the basis of the Flight Coordinator saying to give him a call and see if he could hurry him up a bit.49 Mr Walsh agreed that he had not asked the coordinator explicitly if he could wait for Mr Brereton to take over the job.50
[26] The reason he was asking that was because he knew that the time it would take him to change the blood would be basically the same time it would take for Mr Brereton to arrive. 51 Mr Walsh stated that he finished the blood changeover procedure around the same time that Mr Brereton arrived - about 6:35am.52 It was explained that, at 6:26am, when he said to the Flight Coordinator that “I’ll get him moving in a couple of minutes,” he was referring to Mr Brereton.
(c) Changing the blood
[27] Mr Walsh stated that, that night, Mr Barkmeyer had told him to leave the blood on the aircraft for 24 hours - as was being done at HEMS 4. He was then to make sure that he changed it over before the end of his shift the next morning. He said that the only reason he had changed over the blood that morning was because his Team Manager had instructed him to do so. If he had not been so instructed, he would have changed the blood over at the start of his shift. 53 Mr Walsh stated that it was never the case to change the blood in the middle of a shift at all. It was always done before the end or at the start of the shift.54
[28] Mr Walsh confirmed that he had not included the discussion and direction from Mr Barkmeyer not to change the blood over until the next morning in his written response to the allegations on 5 July 2012. 55 Further, when asked why the written response indicated that the call was received at 6:15am, Mr Walsh explained that he did not have VACIS in front of him when he was preparing the report.56
[29] It was indicated that Mr Barkmeyer had not changed the blood over before he had finished his shift. Therefore, he (Mr Walsh) had not changed the blood over because he was directed not to. This was why the blood had to be changed over that morning as there had not been a change since Saturday morning when Mr Barkmeyer started his shift. 57
[30] It was stated that the policy was that he would have changed the blood over at the start of the shift. However, he said that the policy may not have changed but that the procedures kept changing. Mr Walsh explained that they normally changed the blood of over just before the end or near the end of the shift. 58 It was recounted that between 21 July 2011 and the incident in August 2011, responsibility for changing the blood varied from day to day depending on who the crew was. Mr Walsh stated that sometimes you would start changing the blood over as the night shift or day shift arrived - to give them a hand. He said that they helped each other out because it was a complicated procedure and most of the paramedics are not particularly good on computers.59 It was explained that the storage place for the blood container evolved from being kept in the fridge to it being left permanently in the aircraft after it was changed over every day and every morning.60
[31] Mr Barkmeyer was said to have told Mr Walsh that it was imperative that the blood not stay out of the fridge for more than 24 hours. 61 It was further explained that the blood was over 24 hours at that point. Mr Walsh said that he had the impression that, after 24 hours, the blood would be “no good”.62
[32] It was Mr Walsh’s evidence that he was doing what he had been told to do. He was changing the blood over. He “wasn’t dragging my feet. I wasn’t waiting. I was simply changing the blood over.” 63 “Otherwise, I would’ve done what I normally did every other morning for 11 and a half years. I would’ve have gone out, got in the helicopter and did the job.”64
[33] Mr Walsh explained that Mr Barkmeyer was not at that Branch when the blood transfusions were introduced. The Acting Team Manager had written up a sheet to show him and others who were not very good with computers step-by-step how to get in and out of the computer. He stated that, when they were first being shown how to do it, they had raised their concerns about the data logging difficulties. This was because it was difficult to get into and at times one could not load the information onto the G drive. 65
Fatigue policy
[34] Mr Walsh explained that he was aware of the fatigue policy but said that he had never used it. He said that it was common practice on the road but not on the helicopters. It was stated that he had not reported feeling fatigued to the Flight Coordinator. 66
[35] It was denied that he had only mentioned feeling fatigued when the delay was being investigated. Mr Walsh stated that he did not know that it was being investigated. 67
15 August 2011
[36] Mr Walsh stated that he had rung Mr Barkmeyer on 15 August 2011 to report that there had been a delay and that there might be questions about it. He recalled that the call was more about the procedure for changing the blood over which he wanted changed and made simpler. 68 He stated that Mr Barkmeyer had not known about the delay until he told him.69
Incident Report
[37] It was confirmed by Mr Walsh that, during this conversation with Mr Barkmeyer, he had been requested to complete an Incident Report which he did so on 23 August 2011. 70 The Report indicated that he received the call at about 6:20am, Mr Walsh said that he should have consulted VACIS to get the correct time. He denied that he had pushed the time out.71 He said that, until he heard the tape when he was preparing his witness statement, he thought he was absolutely positive that he had told Flight Coordinator that he was downloading the blood information.72 Further, he indicated in the report that Bendigo MICA were 3 minutes away from the accident when, he thought it was actually 2 minutes but he had put down 3 minutes.73
[38] In terms of the Incident Report stating that he called the FCC back to tell them that he had to go out to the helicopter and change the blood, it was Mr Walsh’s evidence that they had called him back. It was explained that he was very fatigued on that particular morning so that he could not really remember exactly what he had done. 74 The reason that he had not included in the Incident Report Mr Murray’s direction regarding not changing the bloods over was said to be because he was providing it to the person who had given him the direction.75
Letter of the allegations dated 23 August 2011
[39] At the time of his conversation with Mr Barkmeyer, it was Mr Walsh’s evidence that he had no idea that the incident was being regarded quite so seriously. On Tuesday, 23 August 2011, when he received the letter containing the allegations of serious misconduct, he said that he then had a full appreciation of the seriousness of what had happened. 76 Mr Walsh confirmed that the letter clearly set out the allegations that were made against him.77
[40] Following receipt of the letter of allegations, Mr Walsh indicated that he drove home in tears and subsequently developed a serious illness. He said that he had a medical certificate which certified him as being unfit for normal duties from 1 to 16 September 2011. 78 He subsequently wrote to Ambulance Victoria seeking a printed copy of the phone tapes and stating that he was unavailable for the meeting on 7 September 2011.79 It was stated that he received a CD with the recorded phone calls relating to the investigation and advice that the meeting had been rescheduled for 21 September 2011.80 Mr Walsh said that, on his doctor’s advice, he did not attend the meeting on 21 September 2011.81
[41] With respect to the questionnaire forwarded by Ambulance Victoria, Mr Walsh indicated that, on advice from his doctor and psychologist, he did not respond to the questions. 82 He agreed that, as of 11 November 2011, he was unable to answer the questions on medical advice.83 It was confirmed that he received a letter from Ambulance Victoria, on 7 December 2011, requesting a response to the allegations by 16 December 2011. Mr Walsh said that he did not respond because of his medical condition.84
[42] Mr Walsh confirmed that his doctor had drawn his attention to the letter to him from Ambulance Victoria, dated 16 December 2011, seeking clarification of Mr Walsh’s ability to participate in the interview process. 85
[43] In terms of his doctor’s response to Ambulance Victoria, it was Mr Walsh’s recollection that his doctor had sent a report but that Ambulance Victoria had not received it so his doctor then sent it again. 86 It was confirmed that he was aware that Ambulance Victoria wrote to his doctor indicating that he had not answered the question regarding Mr Walsh’s ability to participate in an interview.87 There was confirmation by Mr Walsh of further correspondence regarding his medical condition.88
[44] Mr Walsh indicated that he had responded to the letter of 23 May 2012 from Ambulance Victoria which provided him with a further opportunity to respond to the questions. It was agreed by Mr Walsh that, in the letter dated 26 June 2012, Ambulance Victoria notified him of the outcome of the investigation and sought details of any mitigating circumstances by 6 July 2012. This was the statement of 5 July 2012. 89 He confirmed receiving the termination of employment letter on 31 July 2012.90
[45] With respect to whether or not he was a union delegate, it was Mr Walsh’s evidence that he was the union delegate when Air Ambulance started up and that Mr Barkmeyer was very well aware of this. 91 He stated that Mr Barkmeyer had advised him that Mr Holman was out to get him because Mr Holman believed that he was causing too much trouble and was bulling people into not signing the new secondment agreement.92
[46] In terms of alternative employment, it was Mr Walsh’s evidence that he has not worked anywhere else since his dismissal and that he had not applied for any other jobs because he was waiting for the outcome of this case. This was because he wanted his job back. He indicated that he has been in receipt of income protection benefits which were paying about 70% to 80% of his base rate excluding overtime. This was about half of his income, including overtime, prior to his dismissal. It was his understanding that the income protection would continue until sometime in December 2013, subject to his doctor and psychologist’s advice. 93
Mr Brereton
[47] Mr Brereton is an Intensive Care Paramedic working with the Air Ambulance. He provided a witness statement 94 and gave oral evidence.
[48] It was Mr Brereton’s evidence that, at night, it can take a little bit longer to respond - somewhere up to 15 to 20 minutes. This was said to be due to the staff being in bed and then needing to get organised etc. 95
[49] In terms of changeover of the blood, he disagreed with Mr Barkmeyer’s statement that this was done at the start of every shift. Mr Brereton stated that the way they had been doing it was that the crew that was coming off shift can change the blood over as well. He explained that if nothing was happening 30 or 40 minutes before the end of the shift, the crew may decide to change the blood over and get everything organised before the next crew comes on. He said that this was just courteous and made things easier if a job did come in late. If the outgoing crew had not been able to change over the blood, it would be done at the commencement of the new shift. 96 He agreed that it was unthinkable for neither the outgoing shift nor the incoming shift to have changed the bloods over.97
[50] It was Mr Brereton’s evidence that, prior to this case, he had not heard of a direction being given not to change the blood over at shift change. He explained that the blood changeover became part of the departure procedure and that you would quickly change the blood over if a case came in. 98 In this particular case, he disagreed that it should not have been changed before the helicopter went out. If it was a normal 14 hour night shift, Mr Brereton said that it should not have been held up and that it should just be dispatched.99
[51] With respect to Mr Barkmeyer’s assertion that the procedure for changing over the blood is very simple, he agreed with respect to changing over the blocks and the blood but said that it does take time. However, he said that the associated paperwork and the downloading of the data logger takes time as well. If there are any issues with the computer (which they were having at the time), it can delay the procedure. He said that, over the first 2 to 3 months, there was a lot of pressure on the paramedics to get it right and to do it perfectly and to not mess it up. 100
[52] Mr Brereton also disagreed with Mr Barkmeyer’s statement that the shipping device is kept in the medical store room when the Flight Paramedic is not attending a case. He recounted that, at that time, the shipping device was kept on the helicopter at all times. Removing the shipping device from helicopter, transporting it into the storeroom and then back again and putting it on the helicopter was said to add an extra 2 to 3 minutes in terms of response times. 101
[53] With regard to the training provided when Air Ambulance commenced carrying and delivering blood, it was Mr Brereton’s view that the training did not include how to problem solve and fix issues with the computer. He recalled that, during that time, they were having trouble with the G drive on the computer but they had not received training on how to deal with this issue. 102
[54] In terms of Mr Barkmeyer being unable to understand why it took Mr Walsh five and a half hours to complete the first job on his night shift on 13 August 2011, Mr Brereton indicated that all of the jobs at HEMS 3 are generally between 4 to 6 hours. He explained that they are quite long jobs which include the paperwork and restocking of the helicopter. He stated that VACIS is not supposed to be used in flight. Further, he recalled that the cafeteria at the Bendigo Hospital closes at 7:30pm at night so there would have been nowhere for Mr Walsh to have found food. Also, he said that, once the paramedic hands over the patient, it does not mean that the paramedic’s work is finished. 103 Mr Brereton estimated that, even in a moderate case, it can take 15 to 20 minutes to restock the helicopter.104
[55] Mr Brereton also disagreed with Mr Barkmeyer’s statement that there was no reason for Mr Walsh to have commenced changing the blood when he did. It was Mr Brereton’s opinion that the statement was bizarre as the paramedics were under a lot of pressure not to do anything wrong with the blood. He said that he would hate to have been the first MICA Flight Paramedic to have been responsible for damaging blood by letting it become unviable. 105
[56] With respect to the fatigue policy, Mr Brereton stated that he was unaware that the policy included staff and so was unaware that this was available. He said that he would not like to be the first MICA Flight Paramedic to call up and say that they were fatigued and to take the helicopter off line because they were tired. It was his view that the fatigue policy did not sit well with MICA Flight Paramedics. 106
[57] Mr Brereton disagreed with Mr de Wit’s statement that, on the basis of the number of cases that were performed on the night of 13 August 2011, he could not see a reason for Mr Walsh to be fatigued. It was his evidence that three cases on a 14 hour night shift is a very busy night. As each case is generally between four and six hours, on a 14 hour night shift, if they were to receive three cases, it would generally run over your shift by quite an extensive period of time. 107 Further, he said that there was no chance for a rest break or a meal break as all of the hospital cafeterias are closed - unlike during the day.108 He said that, before even thinking about having a meal break, he would always complete a case, get the paperwork done and get the aircraft ready to respond again. If a job comes in, it needs to be done and now so you do not get an opportunity to have a meal break.109
[58] It was stated that it was well-known that Mr Walsh was the union delegate and that he had been the union delegate at the base for at least the last 10 years. 110
[59] Mr Brereton recounted a situation where he had knocked on the doors of the pilot and the crewman and subsequently discovered that the pilot had not woken up. They had to go and wake the pilot up again which delayed things a bit. 111 He agreed that, when they wake up the crew, it is a loud thump on the door followed by an enquiry as to whether they are awake. He said that he had never come across a case where both the pilot and the crew member failed to wake up after he had thumped on their doors.112
[60] It was agreed by Mr Brereton that, when they received a call, the first priority was to do everything possible to get airborne. He indicated that 35 minutes from the time of the call to being airborne was outside normal considerations. He said that it was generally around 10 minutes with overnight around 15 to 20 minutes. He said there were some considerations as to why it extended on. 113 Mr Brereton explained that there had been situations when he had received a late call and he had then discussed with the Flight Coordinator that the next crew coming on was not far away and were they happy to wait for them to arrive? - and they had been. He said that every situation is different and that, if the Flight Coordinator was not happy to give the next paramedic a few minutes to get there, you have to go and do the job.114
[61] In terms of the occasion in question, Mr Brereton pointed out that there was a MICA crew on the scene. Mr Brereton reiterated that it was the Flight Coordinator’s call and that, on a number of occasions, the Flight Coordinator would give them a job and say that a crew was 5 minutes away and that they would wait for the crew to arrive, give a situation report to see if you are required, before despatching. It was stated that, frequently, the Flight Coordinator would say to get organised, get the aircraft out on the apron and be ready to go and in 5 minutes we should have a situation report as to whether you are required. He repeated that the discussion was with the Flight Coordinator. If he was happy for the next few minutes for things to be put on hold then that is what happens. 115 Mr Brereton said that it was not common practice but that it had occurred a number of times when the outgoing crew had called to find out his whereabouts.116
[62] Mr Brereton confirmed that he did not have any special arrangement with Mr Walsh in terms of when he would arrive on the morning of 14 August 2011. He explained that he generally aimed to be at work around 30 – 25 minutes ahead of his shift starting time. 117
[63] It was explained by Mr Brereton that he had phoned Mr Walsh because he saw that he had a missed call and a message from him as he was walking out the door. He recalled that the message said that there was a job and could he give him a call asap and let him know what time he would be in. 118 It was recollected that, with when he phoned Mr Walsh, he had told him that there was a job pending, that he was changing over the blood and downloading the data at that time and asked him how long he would be? Mr Brereton had responded that he would be there in 10 minutes as he knew how long it took to drive to work.119 It was stated that it was his understanding from what Mr Walsh had said that, as soon as he got there, he would do the job that was pending.120 He indicated that Mr Walsh did not say anything about needing help with the blood.121 The conversation was said to have gone for about 20 – 30 seconds and that he had called Mr Walsh at about 6.20am.122
[64] Mr Brereton recalled that he had arrived at work between 6.30am and 6:35am. He said he did not look at his watch when he arrived. As he was aware that there was a case pending, he walked in the door and went to find Mr Walsh. He confirmed that, at that point in time, the pilot and crew member were out in the hangar getting the aircraft ready for flight. 123 It was stated that Mr Walsh was putting the blood on the machine.124
[65] It was explained by Mr Brereton that, as he had walked into the base, he had put on his uniform and then rung the Flight Coordinator to see if there was any further information from the scene. He said that he had been given a quick rundown from Mr Walsh whilst he was getting changed. He then got ready to depart. 125 When questioned as to why all of this had happened shortly after 6:30am and the flight did not actually take off until 6:46am, Mr Brereton said that he had had got changed, put his gear on the machine and rung the Flight Coordinator which had then taken a few minutes. The time of 6.46am was said to have come from the crewman who has a clock in the machine so Mr Brereton suggested that there may be a discrepancy between the clock and his watch.126
Mr Brereton confirmed that he completed an Incident Report on 24 August 2011. When it was pointed out that the Incident Report said that he had arrived at work between 6.35am and 6.40am, he responded by saying that Mr Millar was splitting hairs. He said that he had written the Incident Report at one stage and his witness statement as another stage. 127
[66] With respect to his belief that someone in management wanted to get rid of Mr Walsh, Mr Brereton recalled that Mr Barkmeyer had told him this 4 - 6 times in the months preceding the incident with the last conversation being about 2 to 3 months prior. Mr Brereton explained the issues that had arisen regarding their secondment to Air Ambulance and Mr Walsh’s involvement in them. He said that there was a constant belief that management were out for Mr Walsh as he had locked horns with the previous Team Manager numerous times who now had a bit of an issue with Mr Walsh. 128
Mr Geary
[67] Mr Geary is an Intensive Care Paramedic with the Air Ambulance. He provided a written statement 129 and also gave oral evidence.
[68] It was Mr Geary’s evidence that the procedure for changing over the blood, as set out by Mr Barkmeyer in his witness statement, had changed in early 2012. He explained the changes and indicated that it used to take a little bit longer to change over the blood and download the data than this year. 130 He agreed that, during the day, cases are responded to within 10 minutes. However, at night, he said that the response time was longer due to environmental factors (weather), if you’re in bed when the phone rings, waking the other crew members up etc.131
[69] Mr Geary’s view was that two or three jobs on a night shift was not routine (maybe every two or three months). Rather, it would generally be one job a night. 132 With respect to how long the paperwork took, Mr Geary explained that it depended on the individual and how familiar they are with the VACIS process and also the complexity of the job.133
[70] It was Mr Geary’s experience that meal breaks are taken when it is convenient to do so - as dictated by workload. He said that two or three jobs on night shift is an overly busy night and there would be limited opportunities to take a meal break. 134 With respect to the fatigue policy, it was his understanding that it related to after duty overtime. Therefore, he did not know that he could put his hand up during his shift and say to the Duty Manager that he was fatigued which meant that he was then entitled to go home.135
[71] Mr Geary agreed that as soon as he received a call-out, the first priority was to do everything you need to in order to get airborne. 136 He also agreed that 35 minutes from dispatch to take off, even on night shift, is a particularly long time. It was also said that if you received a call and were dispatched, even if it was near the end of your shift, you just proceeded to depart. Mr Geary also agreed that if his replacement arrived before he had departed, it made sense for that person to go. However, he said that he would not delay things in order for the next staff member to arrive as that would be the wrong thing to do.137
[72] With respect to whether a late job can be held over for the oncoming crew, Mr Geary said that it comes back to the information that they have been given regarding the primary job. He said that he did not say to the Flight Coordinator that the next shift is 10 minutes away - he goes. It was agreed that, if it is a primary case, whether a job can be held over depends on the time critical nature of the job. 138 With respect to secondary cases, Mr Geary said that there is some flexibility with how you dispatch and that there is room to move with holding over for the incoming crew.139
[73] It was explained by Mr Geary that, when he goes to wake up the flight crew, he thumps loudly on the door and waits for a verbal response before he moves on. If there is no verbal response forthcoming, he actually opens the door a little bit and again tells them that they have a job. He again waits until he gets a verbal response and then moves on. Mr Geary stated that in his experience, he has not had an issue with crew members not waking up for a job. 140
[74] With respect to changing over the blood, based on the training he received, Mr Geary recalled that he was very diligent about changing it at the appropriate time. This was said to be at the beginning of the shift as per the policy. He said that part of your duties before you go on shift is to change over the blood. 141 Prior to reading Mr Walsh’s statement, he had not ever heard of a paramedic being told not to change the blood over at the beginning of the shift but to let it go for 24 hours.142
Mr McCalman
[75] Mr McCalman is an Intensive Care Paramedic with the Air Ambulance. He provided a witness statement 143 and gave oral evidence.
[76] It was Mr McCalman’s evidence that Flight Paramedics will be at the base about 20 to 30 minutes prior to the start of their shift to allow their colleague to go home - whether it is day or night shift:
“....It’s just common practice that we try to be there at least half an hour so the guys can go home and they don’t want to - so if they get another job it will extend out for an extended period of time and the guys will never get home.” 144
However, he said that you cannot rely on that happening so that is why you would make a phone call to find out how far away your partner is. 145
[77] With respect to changing over the blood, Mr McCalman agreed that it takes under 10 minutes now because the paramedics are familiar with it. However, at the time, they were not familiar with it and it took him easily 15 to 20 minutes as he is not very good on computers. 146 It was recalled that, at the beginning, he understood that the blood should not go for more than 14 hours. He said this was fine for a 10 hour day shift but, with night shift, he was pretty aware of the fact that they did not want it to go for more than 14 hours. Mr McCalman stated that his understanding now is that it is 16 hours.147
[78] Mr McCalman explained that the policy might have been that the blood was changed over at shift change twice a day but that was not what the practice was at the beginning - on instructions from Mr Barkmeyer. He stated that, once they had worked out how better to do it, the changeover of blood was to occur at 7.00am and 5.00pm each day. 148 It was said that he was not surprised that Mr Barkmeyer might have wanted the blood to go for 24 hours. This was because, at the time, they were so unsure of exactly what was going on - it seemed to be very trial and error at that stage.149
[79] In terms of whose responsibility it is to change over the blood, Mr McCalman indicated that, a lot of the time, the incoming paramedic and the outgoing paramedic do the blood together or the person who has been on shift, if they haven’t been busy, changes the blood over for you when you come on. He stated that “If you want to look after your mate you will change the blood for him.” 150
[80] Mr McCalman recalled that, in the early days, they had a lot of issues with trying to get the data onto the G drive. In addition, he explained that there was a lot of pressure to not wreck anything as it was his Team Manager who had organised the carrying of the blood. They did not want to be the branch that made the first mistake by losing four units of blood. 151
[81] It was Mr McCalman’s view that three jobs is a very busy night shift. He said that a standard shift is probably one job during the day, maybe two and maybe one job at night time. 152 He indicated that, whether they got a job and then they went, it depended on a range of considerations including how tired pilot is or what is actually going on at the job. Mr McCalman said that sometimes the Flight Coordinator tells them to wheel the helicopter out and get prepared but it looks like you might be cancelled off this case.153
[82] With respect to VACIS, Mr McCalman stated that, for a complicated case, it will take well over an hour and up to 2 hours on VACIS. 154
[83] It was stated that one of the Flight Paramedic’s responsibilities was to wake the pilot and crewman up as they don’t have a telephone in their room. 155 Following speaking to the Flight Coordinator when he is given a job, Mr McCalman explained that he puts his suit on and then goes and thumps loudly on the door of the pilot and crew and tells them that they’ve got a job, waits to hear a response and then he gets ready for the flight. He said that he had twice experienced a situation where the pilot would not wake up and they had to physically go into his room and shake him.156 He said that he had never had a case where both the pilot and crewman did not wake up.157
[84] Mr McCalman agreed that when they receive a call-out, the priority is to get airborne. With respect to a delay of 35 minutes, it was stated that, if he had been in Mr Walsh’s shoes, he would probably have done exactly the same thing - given the pressure they were under to try and get the blood sorted out. He said that, at the time, there were very good reasons for the delay. Mr McCalman indicated that, if the blood had been there for 24 hours, he would be conscious of changing the blood before despatching on the next job. He did not agree with the proposition that no paramedic should have been in the position of needing to change over the bricks before a primary case departure in the latter part of the shift. 158
[85] It was agreed that it did not matter if you were near the end of your shift when you received a call as you must do everything you can to depart as soon as possible. 159 It was stated that you would not intentionally sit in the aircraft waiting for the time to tick over and tell the pilot not to take off but you would have to be doing something for the delay.160 Mr McCalman indicated that, if he knew that the person who was coming on lived 5 minutes away, he would probably be making a phone call to see if they could come in a little bit earlier. If the oncoming Flight Paramedic indicated that he was going to be longer than required, Mr McCalman said that he would then probably get airborne.161
[86] If he received a call-out for a priority dispatch (a primary case), it was Mr McCalman’s evidence that he would have ensured that everything that he required to go with him on the aircraft was there before he did dispatch. This included sorting out his equipment. 162 He said that he would not deliberately delay getting airborne. However, if it was the case that it was more than likely that blood would be required, he would ensure that he would be taking the blood.163 Mr McCalman stated that: “If you’re saying would I purposely delay a case so I can wait for my mate to come in to do the job will then no is my answer to you.”164 Mr McCalman agreed that it was his evidence that sometimes there may be steps that are necessary to be taken with the result that the despatch may not actually occur until after the oncoming crew has arrived.165
[87] Mr McCalman stated that the Flight Paramedic never took it upon himself to decide whether a job could wait until the new crew arrived. It was said that you normally contact the Flight Coordinator and let them know that the oncoming crew is 5 minutes away, ask if they have any further information on this case and if they are happy to wait an extra 5 minutes for the oncoming crew to dispatch? He agreed that he would not say to the flight co-ordinator that the replacement is minutes away unless that had been confirmed with the incoming crew member. Mr McCalman indicated that the flight co-ordinator was the person who made the decision about possibly waiting for the oncoming crew. 166
RESPONDENT
Mr de Wit
[88] Mr de Wit is Acting Manager of Air Operations. He provided a witness statement 167 and also gave oral evidence.
[89] It was Mr de Wit’s evidence that, prior to the incident on 14 August 2011, he was not aware of any other problems with Mr Walsh’s response times. 168
[90] In his written witness statement, Mr de Wit set out the chronology of events on the night shift on 13 August 2011. 169 This included the statement that there was no need for Mr Walsh to do anything regarding changing over the blood as it was not scheduled to be changed until the next shift at 7am.170 Further, it was asserted that the pilot and crew member were not woken until 6.30am.171
[91] Mr de Wit indicated that, as he had not worked with Mr Walsh, he could not comment on his clinical capability. Further, he said that Mr Walsh was stood down within a month or so of him starting in the role of Acting Manager of Air Operations. It was stated that Mr Walsh was dismissed whilst he was overseas so he was not involved in the specific discussions regarding his dismissal. 172
[92] However, Mr de Wit explained that he was involved in the original investigation and that he had reported verbally to the Operations Manager Mr Holman and had also spoken to Mr Barkmeyer (Team Manager for HEMS 3). He said that he had not prepared a written report of his investigations but had taken diary notes and had sent an email to Employee Relations. He did not recall saying anything in his verbal report or email about Mr Walsh’s previous history, clinical practice or response times. 173 It was stated that he did not make the decision around punishment. Rather, it was recalled that he had listened to tapes and had been provided with a Multi Sector Delay Sheet that outlined a significant delay. He said that he could not understand why there would have been such a delay. So, he just followed the information that he was able to gather.174
[93] Mr de Wit explained that he had never been put in a position where he had to look back at someone’s response times because the situation seemed to be quite clear-cut. This was because there was a report of an unconscious patient, a head on collision and it fitted all of the requirements to respond immediately. He said that he had also received an exception report for a response time greater than 10 minutes from the helicopter company. 175 On receipt of the exception report, he had asked Mr Barkmeyer to obtain further information which resulted in provision of the multi sector delay sheet. He had then requested the tapes because “.... it was such a unique thing to have to deal with I wanted to make sure before I followed through with anything that we had the right information.”176 Mr de Wit thought that this had all occurred within a couple of days of the incident.177
[94] In terms of the role of the Flight Coordinator, it was Mr de Wit’s evidence that the Flight Coordinator was responsible for making the decision to allow any undue delay. However, if there was going to be a long delay they may need to escalate it to the overnight duty manager. It was Mr de Wit’s understanding that the Flight Coordinator on the night in question did not discuss the delay with anybody else. He said that he did not believe that the Flight Coordinator was fully aware that the delay was going to be 35 minutes. It was stated that the Flight Coordinator was originally advised on the first call (6.11am) that he needed a landing site which Mr de Wit thought was questionable. Also questionable was said to be the original request (6.11am call) about the road ambulance going to be there because there was no indication where the road ambulance was coming from. Therefore, Mr de Wit did not believe that it was in the Flight Coordinator’s mind that there was going to be a 35 minute delay. 178
[95] With respect to the first phone call at 6:11am, Mr de Wit indicated that, if he had been
having this conversation, he may have thought that it was good that there was a MICA unit on the way. However, he did not think that he would have been thinking about their capability because a MICA Flight Paramedic’s skill set suited the particular patient down to a tee (higher level skill set, additional drugs and clinical skills). In addition, the Flight Paramedics (via the helicopter) had a more rapid means of transport available to them. Rather, he would have viewed the MICA road unit as giving him an extra pair of hands with a difficult job. 179 He disagreed with the proposition that the Flight Coordinator and Mr Walsh would have concluded that there was probably not a lot that could be done for the patient by the MICA Flight Paramedic until they were at the point where they could extricate the patient from the vehicle. Mr de Wit stated that the MICA Flight Paramedic has additional pharmacology that was going to benefit the patient and that Mr Walsh needed to respond to that case.180
[96] It was Mr de Wit’s view that, during the first phone call, it was reasonable for Mr Walsh to have thought that it was okay to wait for Mr Brereton to arrive as long as he gave him a call while he was getting the helicopter out. It was pointed out that the Flight Coordinator had only been a Flight Coordinator for a short period of time and that he was dealing with an experienced MICA Flight Paramedic who was providing him with advice. 181
[97] However, Mr de Wit stated that the totality of the whole conversation had to be taken into account, particularly when, by the second call at 6:26am, it was his understanding that the crew had not been woken up at that stage. 182 With respect to the second call, he agreed that Mr Walsh could have interpreted that call to mean that he was getting approval from the Flight Coordinator to get Mr Brereton moving in a couple of minutes.183
[98] With respect to the length of the delay, Mr de Wit stated that at night, the response time can be up to 20 minutes. However, based on the statistics, HEMS 3 are airborne quicker than most of the other helicopter bases throughout Victoria. Therefore, he thought that they could have been airborne by around 6.25am to 6.30am. It was stated that the expectation is that the crew will get airborne as soon as physically possible which could result in a response time of 6 minutes. 184
[99] Mr de Wit explained that there was a key performance indicator for a 10 minute response time day or night. He said that the helicopter company reports response times outside of that 10 minute timeframe. If it takes 30 minutes to get airborne because the pilot needs to plan weather and actually work out fuel requirements and the safety of the aircraft, then Ambulance Victoria may have to accept 30 minutes, subject to review. However, if there is no real reason for a delay beyond 10 minutes, the expectation is that the aircraft is airborne within about 10 minutes. 185 In regard to Mr Stephenson’s evidence, Mr de Wit explained that the acceptable nighttime response is 20 minutes for HEMS 4 and HEMS 5.186
[100] It was Mr de Wit’s evidence that the delay was 31 minutes based on the time it takes to get airborne following the conclusion of the Flight Coordinator’s call when the Flight Coordinator states the time out (the time that the crew is dispatched). He said that the telephone call concluded around 6:15am and the aircraft did not get airborne until the 6:46am - resulting in a 31 minute delay. It was stated that time to airborne was a factor of safety and that there is no pressure on the crew to get going when it is a matter of safety. 187
[101] Mr de Wit stated that he believed that Mr Walsh should have gone irrespective of changing over the blood. This was because there were strategies in place whereby he could have consulted/determined whether or not the blood was suitable for use. He said that, as the patient was unconscious and trapped in a car, Mr Walsh’s airway skills would have been required first rather than an actual blood transfusion. Further, the blood should have been changed over at the commencement of the shift or at the earliest possible opportunity. 188
[102] In terms of the reason for the delay, Mr de Wit recounted that he had been told that the blood changeover was the reason and then that it was fatigue and then the question for landing sites and other information that is not necessarily needed. Added to that was the fact that the crew, to his knowledge, had not been woken up and that there was no requirement to change blood. Therefore, he said that he was confused about the reason for the delay. 189 With respect to the request in the first phone call for the latitude and longitude and a landing site, Mr de Wit made the observation that the request for a landing site was never followed through, either by the Flight Coordinator or by Mr Walsh, in the second and subsequent phone call.190
[103] It was Mr de Wit’s view that the delay was caused because Mr Walsh did not want to respond to this particular case. He believed that Mr Walsh had asked for information that he did not need and had chosen to use the blood as an additional reason for the delay. 191 He said that, in terms of MICA Flight Paramedics, the case in question was the kind of case that they got up for in the mornings to go to work for. It was explained that this is a job where you want to go and you want to go and help these people.192 However, there did not appear to be any urgency to go to this particular case by Mr Walsh. By asking for other information that was not previously needed when he had gone to that same area, and when you start putting those components together, it appeared to Mr de Wit that, for whatever reason, Mr Walsh did not want to go to that job.193
[104] Mr de Wit explained that, as part of the disciplinary process, he was actually hoping that Mr Walsh would explain what happened. This was because he just wanted to get an answer as to why, as MICA Flight Paramedics would much rather have responded to that particular case than to someone with a sore toe. Further, there were said to be too many anomalies in the Incident Reports and that that was why they were hoping to sit down with Mr Walsh and get answers to questions they had. 194
[105] It was stated by Mr de Wit that it appeared from the Incident Reports from the pilot and the crew member that they were not woken up by Mr Walsh until 6:30am. 195 He indicated also that the Incident Report cited a delay of 32 minutes due to blood changeover.196
[106] Mr de Wit recalled that he had spoken to Mr Barkmeyer on 19 August 2011 about the delay amongst other things. He had wanted to find out the background and what had gone on. He thought that Mr Barkmeyer had indicated that he knew about the delay. It was stated by Mr de Wit that he already knew about the blood changeover because it was on the multi sector load sheet. He thought he might have asked Mr Barkmeyer to check out what was going on but he did not believe that they discussed the blood changeover because there wasn’t anything for them to discuss. 197
[107] It was explained by Mr de Wit that he got all the information and then sought advice from Employee Relations about what was he needed to do. He recalled speaking to Mr Holman, the Operations Manager and said that the decision was then made to stand Mr Walsh down whilst management got all the information. Part of the information gathering was supposed to be a disciplinary meeting with Mr Walsh so that Ambulance Victoria could actually get his side of the story and tease out the anomalies in the information. 198 Mr de Wit stated that the reason for standing Mr Walsh down was that he actually may have posed a danger to the public because he did not respond when Ambulance Victoria and the community expected him to do so.199 He agreed that Mr Walsh did not refuse to respond.200
[108] However, Mr de Wit said that Ambulance Victoria believed that they were not in a position to allow Mr Walsh back at work until they could get to the bottom of what went on. He said that the call came in at 6:11am and was completed at 6.14am or 6:15am. The aircraft should then have been airborne and responding and Ambulance Victoria had to be sure that that aircraft was going to respond to an emergency when requested. 201 Mr de Wit indicated that Mr Holman would have spoken to Mr Rogers and the Chief Executive Officer about the situation. He recalled that he was advised to stand Mr Walsh down whilst they got all the information and held a disciplinary meeting.202 It was stated that this was viewed as a matter of serious misconduct. He said that he had not known anyone not to respond and this was a primary case with a person trapped in a car that had had a head on and “.... it didn’t get any clearer in my mind to warrant a helicopter response.”203
[109] Mr de Wit explained that by saying that Mr Walsh had failed to respond, he meant that Mr Walsh was the person on duty and that Mr Walsh had not been on the aircraft responding to that particular case within a timeframe he would have expected. He indicated that perhaps he should have said “delayed response” rather than “failed to respond.” 204 In this case, Mr de Wit stated that the delay was not an acceptable response.205 He explained that he had described it as a “failure to respond” because the aircraft was not airborne within the 10 minutes of dispatch or within a reasonable timeframe. The duties carried out prior to becoming airborne did not seem appropriate as they were not indicated nor in the policies or procedures. Further, the timeframe for the aircrew to have the aircraft out was longer than he would have expected and there was no feedback to the Flight Coordinator that there was going to be an extended delay, even after the request to actually contact Mr Brereton.206
[110] It was acknowledged that Mr Walsh did not say that he was not going and that there was a discussion with the Flight Coordinator about delaying his response. However, Mr de Wit believed that Mr Walsh, for some reason, really did not want to go to that job. 207 He explained that, unlike the road crews, there is no overnight supervision of MICA Flight Paramedics. Therefore, the organisation trusts that they will have the aircraft ready to respond as soon as they come on shift and that they will be airborne as soon as physically possible.208
[111] With respect to the Fatigue Management Policy, Mr de Wit explained that if a MICA Flight Paramedic thought they could no longer undertake their tasks safely, that person could ring up and indicate such and be released from duty. He stated that this none of the crews on HEMS 1, over the past year, has ever rung up for a fatigue break. It was said that the staff know their roster 28 days in advance so therefore they can prepare themselves for the rigours of shift work to ensure that they can, as best as possible, undertake those duties. 209 It was Mr de Wit’s view that Mr Walsh was not so fatigued that he was unable to respond to the third despatch that night/morning.210
[112] In terms of an incident involving a MICA Flight Paramedic where that person was unable to be contacted at all when he was required to go on a flight job, Mr de Wit indicated that he recalled part of that case but was not made privy to the details. With respect to a further incident regarding that paramedic, it was explained that the issue there was that he was never clearly dispatched. He confirmed that the Flight Paramedic was sent off on road duties for clinical issues and that he was scheduled to return to the air wing in January 2013, provided he met all the clinical requirements. 211
[113] Mr de Wit indicated that he was not aware of any litigation against the Ambulance Service for failure to respond to a dispatch. He explained that it was his personal opinion that there could be grounds for someone to do that. 212
[114] Evidence was also provided by Mr de Wit regarding the procedure for changing over the blood. 213
Mr Barkmeyer
[115] Mr Barkmeyer is the Team Leader of HEMS 3 in addition to being an operational MICA Flight Paramedic. He provided a witness statement 214 and also gave oral evidence.
[116] In terms of the reasons for the delay, Mr Barkmeyer indicated that Mr Walsh had stated that it was because he was changing the blood. However, it was recalled that when the investigation was conducted, there were a lot of other factors. These included the assumption that Mr Walsh did not wake up the crew. Further, there was the fact that Mr Walsh had called the day shift to come in early at the time of despatch which was said to not be the usual practice. As well, it was stated that the practice of changing the blood at about 6.10am was not part of the work instructions. In addition, there was a request by Mr Walsh for a landing site prior to take off. 215
[117] With respect to the chronology of events on 14 August 2011, it was Mr Barkmeyer’s view that, if the case came in at 6:11am, the phone call would have taken less than a minute, from his personal experience. 216 He explained that the pilot and crew were under a contractual agreement that they must be airborne in less than 10 minutes otherwise they have to put in a delay report. Therefore, it was said that they would have been pushing the paramedic after they had been dispatched. The normal process was outlined to be that, after the phone call comes in, the paramedic knocks on the door and there is an acknowledgement from the crew that they are awake. The paramedic then goes about their business whilst the crew person takes the aircraft out and the pilot checks the weather. Then they get airborne which generally happens in less than 12 minutes.217 On 14 August 2011, it was stated that the despatch call came in at 6.11am but the crew did not get airborne until 6.46am.218
[118] It was confirmed by Mr Barkmeyer that he had not changed over the blood at the end of his shift. He said that it was the night shift crew who generally changed over the blood bricks for the next shift. Mr Barkmeyer explained that when the ongoing person comes on, there is generally a conversation about whether there were any problems during the day shift, both do a drug check. It is assumed that the person who comes on actually changes over the bricks for the blood in preparation for the 14 hour night shift. 219 He said that he did not recall a conversation whereby he told Mr Walsh to change the blood over at the end of his shift or anything about the blood on that particular night.220 Further, Mr Barkmeyer stated that he did not even recall the conversation he had with Mr Walsh in the changeover but doubted that he would have given that direction as it contradicted the work instruction.221 He said that he did not recall a conversation but he assumed that he and Mr Walsh did say something but he could not recall the conversation.222
[119] Mr Barkmeyer indicated that the reason that Mr Walsh had not changed the blood at the start of his shift was that he (Mr Barkmeyer) assumed that he had wanted to change it over at some other stage. He could not recall that Mr Walsh had ever done that before. However, he did not accept that the only reason for Mr Walsh to have changed his practice was because he, as his Team Manager, had directed him to do something different which was to change the blood over at the end of the shift rather than at the beginning of his shift. 223 Mr Barkmeyer stated that there was no reason for Mr Walsh to have started changing the blood when he did. This was because he was nearing the end of his shift and he had been despatched to a primary case.224
[120] Mr Barkmeyer did not recollect having given a direction, to a person coming onto shift, to wait until the end of the shift to change over the blood. 225 Mr Barkmeyer stated that such a direction contradicts the work instruction regarding the blood.226 The work instruction was said by Mr Barkmeyer to state that the blood bricks needed to be changed over at the start of every shift. He said that he could remember changing over the blood on 13 August 2011 at 7.00am. However, he did not change over the blood at the end of his shift because it was assumed that the oncoming night shift would change over the bricks.227
[121] It was explained by Mr Barkmeyer that, if the blood is kept at between 2 and 8 degrees, there are validations on the box of 14 hours (now 16 hours). This was said to mean that, if the blood is stored on that basis, the paramedic does not need to change over the blood at the 14 hours mark. Rather, it could be changed over at the next available opportunity. It was stated that what was supposed to occur was that the paramedic goes to the job and, if they were concerned about the blood, the paramedic would call Mr Barkmeyer or the Team Manager from another base and the bricks are swapped over at the other end. If the blood has not gone outside the parameters of 2 to 8 degrees, then there is no concern. It was his view that this was made clear to the paramedics at the training session. 228
[122] In terms of when he had handed over to Mr Walsh on the evening of 13 August 2011, Mr Barkmeyer could not recall when Mr Walsh came in. He said that Mr Walsh generally came in about 20 minutes before the shift started so he assumed it would have been about 4:45pm. He said that he was not out on a job when Mr Walsh arrived and that he would have signed out the drugs which Mr Walsh would have then checked and countersigned. It was stated that Mr Walsh was actually airborne at around 5:30pm and so he assumed that they had had a discussion prior to 5.00pm. This was because the outgoing person is generally driving out the gate a couple of minutes past 5.00pm. 229
[123] With respect to the incoming MICA Flight Paramedics coming into work 20 or 30 minutes prior to the commencement of their shift, Mr Barkmeyer explained that it was a matter of common courtesy as the majority of the Bendigo MICA Flight Paramedics now live in Melbourne. He said that if a job comes in at that time, it is common courtesy that the incoming shift takes the job because jobs generally take 3 to 4 hours to complete. It was his view that coming in 20 to 30 minutes early is the norm for the majority of the Flight Paramedics. 230 He said that if a late job comes in around 20 minutes to half an hour before the end of the shift, and the incoming crew is at the base, the assumption is that the ongoing person takes the job. However, any earlier than this, even if the ongoing crew is at the base, the majority of people would not go out on the job as there is no obligation to.231 It was said that the outgoing person would assume that the person replacing them would not get to the base until 6.30am or after.232
[124] Mr Barkmeyer expressed the view that he thought it was unreasonable for Mr Walsh to ring Mr Brereton. He stated that he did not believe that Mr Walsh wanted to go on this particular case and that he was attempting to delay the response because he was waiting for Mr Brereton to arrive. He said that he did not know anybody else who had rung at 6:11am to call the day shift in when they know that the day shift is probably not going to be there until after 6:30am. 233 Mr Barkmeyer could think of no other reason for Mr Walsh to have started changing the blood after being dispatched and for failing to wake up the pilot and crew member until 6.30am.234
[125] It was stated that it was a given that, on primary cases, you will be airborne in less than 10 minutes otherwise it is going to be investigated. With respect to secondary cases, Mr Barkmeyer indicated that there might be some leeway. However, at his base, he indicated that both primary and secondary cases were generally responded to in less than 10 minutes. 235
[126] It was Mr Barkmeyer’s understanding that Mr Walsh had been having problems with the data logger and saving the data correctly from the beginning. He agreed that he had had to assist him a couple of times but indicated that it was not just Mr Walsh - that there were others who were also having issues. It was stated that he could understand that Mr Walsh and a couple of the others were struggling with the concept. He indicated that the training they had received did not include hands-on computer training. However, he (Mr Barkmeyer) was the person that they were able to call for assistance. 236
[127] It was explained by Mr Barkmeyer that the blood arrangements commenced at the Bendigo base on 21 July 2011 and that, in the early stages, they placed the blood units with their refrigerated blocks into the blood refrigerator. By the time of the incident, the process of changing the bricks in the portable shipping device was said to have been in place. 237 Mr Barkmeyer described the procedure of changing over the refrigerated and frozen bricks in the shipping device. This was said to require taking the blood with the refrigerated bricks out of the shipping device and putting in new frozen bricks and refrigerated bricks and returning the blood to the device. Before this, the probe (which monitors the temperature of the blood) was disconnected from the data logger. Once the bricks have been changed over, the data from the previous shift is downloaded and entered on the Ambulance Victoria network drive.238
[128] Mr Barkmeyer was not aware of any cases, prior to the incident on 14 August 2011, when Mr Walsh did not respond in a timely manner. He stated that he had never had any cause for concern about Mr Walsh’s clinical practice. It was said that in the years he had known Mr Walsh, prior to this event, he had not experienced Mr Walsh deliberately doing anything that would be harmful for the patient. 239
[129] It was confirmed by Mr Barkmeyer that he was the Project Manager for the new clinical responsibility for blood transfusions and that he was anxious to ensure that everything was done correctly and that there would not be any mistakes. This was said to be because he did not want to lose any of the blood units because they were very expensive. Also, he stated that he wanted to prove to the pathology departments throughout the state that Ambulance Victoria was able to handle using the blood. 240 Mr Barkmeyer confirmed that at the time of the incident, it had only been underway for three weeks at the Bendigo base and that he had been very vigilant about ensuring that the blood was changed over correctly.241
[130] With respect to response times, Mr Barkmeyer did not agree that, during night shift, the response time can be longer than the 10 minutes on day shifts, namely 20 minutes, due to additional factors such as the crew being asleep. He stated that, in terms of the Bendigo base, it was not unusual on night shift for a job to take 12 or 13 minutes from dispatch to getting airborne. He said that, from his experience, it depended on the individual’s sense of urgency but that the crew know that it is an emergency and that they have to go and generally they know that the response times are always 10 minutes or under. 242
[131] In terms of the investigation, Mr Barkmeyer explained that he was investigating the delay report on the Multi Sector Load Sheet by the helicopter contractor which specified that the delay was because the paramedic was changing over the blood. It was recalled that he had been made aware of the delay basically straight away. He contacted Mr Walsh and there were some conversations between them and he then asked Mr Walsh to provide him with an Incident Report. It was recalled that he was not involved in the investigation fully because, once it got going, it was the Manager of Air Operations (Mr de Wit) and Employee Relations who were involved. 243
[132] Mr Barkmeyer confirmed that he and Mr Walsh had a conversation but he was not sure who had called who or the date. He thought that Mr Walsh had talked about having problems with logging data for the blood but could not remember the rest of the conversation. 244 Later in his evidence, Mr Barkmeyer said that he had a conversation with Mr Walsh on 15 August 2011 and that he had asked Mr Walsh to supply an Incident Report for the purposes of an investigation.245 He did not deny that Mr Walsh took the initiative to tell him that about the delay due to problems with the data logger but said that Mr Walsh had been around for long enough to realise that there was going to be an investigation and that he (Mr Barkmeyer) would have been on top of it. Further, it was his view that every MICA Flight Paramedic has a responsibility to report to their Team Manager that there has been a delay in responding - which Mr Walsh had done.246 He did not recall Mr Walsh telling him that he (Mr Barkmeyer) had told him not to change over the blood until the end of his shift. It was recalled that he was surprised when he saw that in Mr Walsh’s statement. This was because, all he could remember of their conversation on 15 August 2011, was Mr Walsh saying that he had an issue with the data logger.247
[133] After having spoken with Mr Walsh, Mr Barkmeyer recalled that he decided to investigate what had occurred that night and that he found out from the pilot and crewman about being woken up at 6:30am. It was said that he thought that the investigation was not going too well so that he had better have a closer look at it. It was said that he then had another conversation with Mr Walsh and asked him, either in this conversation or the first conversation, to provide an Incident Report. 248
[134] With respect to his conversation with Mr de Wit, Mr Barkmeyer assumed that it had occurred on 19 August 2011. 249
[135] It was stated by Mr Barkmeyer that he was not involved in the decision to terminate Mr Walsh’s employment and did not have any influence over the outcome of the investigation. He did not know specifically who that person was. 250 It was indicated that he did not make a report to Employee Relations but that he gave his monthly report on the delay to the Manager of Air Operations. He said that he indirectly had input into the report prepared by the Manager of Air Operations because he had to investigate the circumstances of the delay.251 Mr Barkmeyer explained that he had only sighted the pilot’s statement and recalled that it said that he was not woken until around 6:30am on 14 August 2011. He did not read the crew member’s statement. Given that they got airborne at 6:46am, he said that it made sense that they were woken up around 6:30am.252
In terms of use of the VACIS, it was confirmed by Mr Barkmeyer that the policy was that it was not to be used in moving vehicles but he stated that in aircraft it was fine. 253 In terms of his view that Mr Walsh should have had something to eat at the Bendigo Hospital, Mr Barkmeyer explained that he had had sandwiches and orange juice in the nurses’ rest rooms in the Emergency Department. He stated that Mr Walsh had a chance to have a meal between 9:10pm and 11:05pm, either at the hospital or back at base.254 Mr Barkmeyer also gave evidence about the Fatigue Policy.255
[136] With regard to whether or not Mr Walsh was a union delegate, it was Mr Barkmeyer’s evidence that he did not realise that he was and said that he still did not know whether he was. It was his view that Mr Walsh had a tendency to get involved in industrial issues. 256 He did not recall that there was antagonism towards Mr Walsh from other managers over his involvement with the secondment issue.257
Mr Holman
[137] Mr Holman is Manager Air Ambulance and Emergency Management and he gave oral evidence.
[138] It was stated by Mr Holman that he first became aware of the incident that occurred on 14 August 2011 in one of his daily meetings with the Manager of Air Operations, soon after the event. He then set out to get the facts and then asked the Manager of Air Operations to conduct an investigation involving Employee Relations. It was stated that he then stood aside from it because he knew that the results of the investigation would come to him ultimately. It was recalled that he received a weekly update on where the investigation was from the Manager of Air Operations (Mr de Wit). 258
[139] In terms of the factors he took into account in deciding to dismiss Mr Walsh, Mr Holman explained that he looked at it as three different pillars. The first one was said to be the individual and whether due process was followed and whether there were any mitigating factors. Secondly, Mr Holman said that he looked at what the political and business risk to the organisation was and community expectations. Finally, he looked at what the patient’s expectations were. Having reviewed these three pillars, it was stated that he concluded that it was serious misconduct and that the best course of action was Mr Walsh’s dismissal. 259
[140] With respect to the first pillar, Mr Holman explained that he was satisfied that due process had been followed. He indicated that he had been informed about the nature of the response provided by Mr Walsh. Further, he thought that Mr Walsh had been given an opportunity to respond on multiple occasions using whatever method. It was stated that Mr Walsh’s long service was not a consideration except in terms of him, therefore, being well aware of the ramifications of his behaviour and the consequences of not complying with his responsibilities. 260
[141] Mr Holman explained that, with respect to the second pillar, it was his view that what the community expects when someone rings 000 is that Ambulance Victoria will respond immediately. This was said to be particularly so in terms of the work of the Air Ambulance which was set up to look after the sickest and worst cases. It was all about speed - hence the helicopters - and timely access to the patient and then timely access to definitive care (a trauma centre). The third pillar was said to be irrelevant in terms of the outcome to the patient. 261
- There was no sense of urgency about responding to the dispatch call in Mr Walsh’s voice. It is accepted that he was fatigued but he was “with it” enough to have a conversation with the Flight Coordinator which put barriers up to a speedy departure, requested a delay (wait for the MICA unit/wait a few minutes (for Mr Brereton). During this conversation also, Mr Walsh managed to obtain the reluctant acquiescence from the Flight Coordinator that they could wait a few minutes/wait until Mr Brereton arrived.
- Very shortly after the call from the Flight Coordinator ended, at 6.15am, Mr Walsh rang Mr Brereton and left him a message asking him when he was coming in. I accept the majority witness evidence that this was an unusual thing for Mr Walsh to do as it was customary for Flight Paramedics, in any event, to come in 20 to 30 minutes before their shift start time.
- The crew were not woken up until 6.30am.
- When Mr Walsh finished the blood changeover coincided with Mr Brereton’s arrival at the base.
- I accept Mr de Wit’s evidence that primary cases, such as the job in question, are what MICA Flight Paramedics get up for in the morning. 449
[311] I have formed the view that it is most probable that Mr Walsh, for some unknown reason, did not want to go out and do the job. He “managed” the Flight Coordinator so that he was given the reluctant okay, with qualifications, to wait for Mr Brereton who was arriving in 10 minutes. Mr Walsh did not know, at that point in time, exactly when Mr Brereton would be arriving. There had been no prior agreement between them that Mr Brereton would come in earlier than the customary 20 to 30 minutes.
[312] Therefore, I am satisfied that there was a valid reason for Mr Walsh’s dismissal on the basis that Mr Walsh did not want to go out on the late job and that he delayed his departure so that Mr Brereton would arrive and go instead of him.
[313] If I am wrong and Mr Barkmeyer did instruct Mr Walsh to change the blood over in the morning at the end of his shift and the blood changeover genuinely took until 6:30am/6:35am or 6:35 am/6:40am, I would still hold the view that there was a valid reason for Mr Walsh’s dismissal. I accept Ambulance Victoria’s statement that changing the blood over should never delay the departure of HEMS 3 to a priority case. 450 Both Mr Barkmeyer and Mr de Wit stated that, under no circumstances, is a MICA Flight Paramedic to delay a response to a primary case in order to change the blood.451 Mr de Wit indicated that there were other strategies in place to deal with a situation where the blood became unusable.452
Notification of the reason – section 387(b)
[314] Mr Walsh was notified of the reasons for his dismissal by letter dated 31 July 2012. 453 Prior to that, details of the allegations had been provided to Mr Walsh in letters dated 26 August 2011 and 28 October 2011. The outcome of the investigation was relayed to Mr Walsh by letter dated 26 June 2012.454
[315] Therefore, I am satisfied that Mr Walsh was notified of the reason for his dismissal.
Opportunity to respond - section 387(c)
[316] The union stated that Mr Walsh was on sick leave after he was stood down and that, on medical advice, he was advised not to meet with the respondent until he was better able to cope with the situation. 455 Further, it was argued that it was Mr Walsh who first notified Ambulance Victoria about the delay and the reasons for it when he called Mr Barkmeyer on 15 August 2011.456
[317] It was submitted that Mr Walsh was given an opportunity to present his reasons for the delay. However, the union contended that Mr Walsh was not given a chance to respond to the report which contained the details of the investigation. 457
[318] Ambulance Victoria was of the view that this was not a case which turns on any issues of procedural fairness. 458 It was stated that, from 26 August 2011, Ambulance Victoria sought an opportunity to sit down with Mr Walsh to discuss what had happened. The respondent argued that, despite their efforts, that opportunity never eventuated. Therefore, the allegations/responses needed to be put in writing as was the decision to terminate Mr Walsh’s employment. It was submitted that the content of the letter of termination showed that opportunities to respond and provide any mitigating reasons had been given and that the responses received had been considered.459
[319] Mr Walsh was advised in writing, on 26 August 2011, that Ambulance Victoria was undertaking an investigation into the allegations that had been made against him. The letter also confirmed that he had been stood down on ordinary pay and requested that he attend an interview on 7 September 2011. 460 Due to Mr Walsh’s medical condition, he was not well enough to attend an interview and was on personal leave until his dismissal. A letter was sent to Mr Walsh, dated 26 June 2012, which set out the outcome of the investigation.461 By letter dated 5 July 2012, Mr Walsh provided a response to the allegations.462
[320] Given the circumstances, it would seem that the process followed by Ambulance Victoria was generally appropriate. However, there was not a lot of detail provided to Mr Walsh regarding each of the allegations. For example, the first allegation was that:
“At 0615 hours on Sunday, 14 August 2011 at HEMS 3, you failed to respond in an adequate timeframe to a primary motor vehicle accident.” 463
[321] On the basis of the documentation before me, it seems that that was the extent of the information given to Mr Walsh. The next two allegations were more specific - that he failed to alert the pilot and crewman until 0630 hours/in a timely manner. The last allegation was that he had delayed the HEMS 3 crew from responding appropriately. 464 There was an investigation conducted by Ambulance Victoria but it is unclear as to whether there was a written report provided to the Chief Executive Officer which formed the basis of the decision to dismiss Mr Walsh. Mr Walsh does not appear to have been given the results of the investigation let alone more detail about the allegations than is set out above. Even in the particular circumstances of this case, Ambulance Victoria should have provided Mr Walsh with more details of the allegations together with, at the very least, the findings of the investigation.
Support person - s.387 (d)
[322] The union sent Mr Walsh’s response to the outcome of the investigation, to Ambulance Victoria, on his behalf.
Previous warnings about unsatisfactory performance - s. 387(e)
[323] Mr Walsh’s dismissal was for serious misconduct. Therefore this section does not apply.
Size of the employer’s enterprise/absence of dedicated human resources - s. 387(f) and (g)
[324] Ambulance Victoria is a large employer and has a dedicated Human Resources area which was involved in the disciplinary process.
Any other matters - s. 387(h)
[325] The union submitted that Ambulance Victoria should have taken account of the following in making the decision to dismiss Mr Walsh:
- Mr Walsh’s length of service (25 years, with the last 12 years as a MICA Flight Paramedic);
- Mr Walsh’s prior good record in regard to responding to primary cases;
- Mr Walsh’s clinical competence;
- The fact that it was a one-off incident;
- That there was no adverse impact on the patient as a result of the delay;
- The respondent did not challenge Mr Walsh’s clinical competence nor his prior good record in regard to responding to primary cases.
[326] Ambulance Victoria argued that, as a long serving employee, Mr Walsh knew the ramifications of his behaviour and what his responsibilities were. 465 It was Mr Holman’s evidence that account could not be taken of Mr Walsh’s prior good record or clinical competence because responding immediately to a primary case:
“It’s the core of what we do. It’s the reason that we’re paramedics. It is the reason we’re an Ambulance Service. It’s what the community expects. It is one of the most serious things that you cannot do by not responding....So not to do that and delay that response is - I can’t think of anything terribly more serious.....every paramedic knows that.” 466
[327] Mr Holman also stated that he was not sure that the organisation would allow a pattern (of delayed departures) to develop because “.... it was such a serious offence in terms of not responding to what one’s core duty was.” 467
CONCLUSIONS
[328] In all of the circumstances of this matter and, having taken account of each of the factors in section 387 of the Act, I determine that Mr Walsh’s dismissal was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Mr Walsh’s dismissal which was that he had delayed his preparations for departure so that the oncoming shift would arrive and would go on the job instead of him. On the other hand, even given Mr Walsh’s medical circumstances, Ambulance Victoria should have provided Mr Walsh with details regarding the allegations and the findings of the investigation.
[329] At the end of the day, I accept Mr Holman’s and Mr de Wit’s evidence which was to the effect that, responding immediately to a priority case, is the core of what a MICA Flight Paramedic does 468 and that the case on 14 August 2011 was the kind of case that that they get up for in the mornings to go to work for.469
[330] It therefore follows that, pursuant to s.385 of the Act, Mr Walsh was not unfairly dismissed. Accordingly, Mr Walsh’s application is dismissed. An order 470 to this effect will be issued separately.
COMMISSIONER
Appearances:
Ms B Forbath, of United Voice, for the Applicant
Mr R Millar, of Counsel, for the Respondent
Hearing details:
2012.
Melbourne:
December 10, 11, 12.
Final written submissions:
Applicant, 14 January 2013
Respondent, 5 February 2013
1 Transcript PN 127 and 218 and Exhibit A3
2 Ibid PN 162 - 163
3 Ibid PN 164 - 165
4 Ibid PN 166 - 168
5 Ibid PN 621 - 655 and Exhibit A3
6 Ibid PN 228 - 234 and 859 - 860
7 Ibid PN 235 - 241
8 Ibid
9 Ibid PN 243 - 246
10 Ibid PN 182, 187 - 188, 247, 290, 333, 353, 355 - 358 and 617 - 619
11 Ibid PN 248, 334 - 337, 351 and 375
12 Ibid PN 342 - 345 and 350
13 Ibid PN 222 and 352
14 Ibid PN 354, 373 - 374 and 453 - 454
15 Ibid PN 455 - 459 and 598 - 600
16 Ibid PN 463
17 Ibid PN 464 - 468
18 Ibid PN 469
19 Ibid PN 362 - 365 and 372
20 Exhibit R1
21 Transcript PN 366 - 369 and 380
22 Ibid PN 346 - 348
23 Ibid PN 182, 250 - 257, 290 and 601
24 Ibid PN 476 - 477
25 Ibid PN 478
26 Ibid PN 479 - 485
27 Ibid PN 486 - 487
28 Ibid PN 488 - 494 and 888
29 Ibid PN 255 - 258
30 Ibid PN 289
31 Ibid PN 272 - 273 and 865 and Exhibit A2 at Attachment KW2
32 Ibid PN 275, 179 - 180 and 862 - 863
33 Ibid PN 281 - 282, 285, 327 and 329
34 Ibid PN 285 and 306 - 314
35 Ibid PN 332 and 495
36 Ibid PN 319 and 325
37 Ibid PN 326
38 Ibid PN 321
39 Ibid PN 322
40 Ibid PN 283 - 285
41 Ibid PN 286 - 287
42 Ibid PN 294
43 Ibid PN 294 - 296 and 304 - 305
44 Ibid PN 297 and 425 - 426
45 Ibid PN 258, 276 - 277, 280, 295, 306, 447 and 473
46 Ibid PN 259 - 261 and 550
47 Ibid PN 182, 427 - 431 and 884
48 Ibid PN 434 - 435
49 Ibid PN 442 - 444, 449 - 450 and 551
50 Ibid PN 451 and 474 - 475
51 Ibid PN 445 - 446 and 880
52 Ibid PN 452
53 Ibid PN 185, 214 - 215, 220, 496 - 498, 508 - 510, 515 - 518, 520 - 521, 542, 548 - 549, 558 and 612
54 Ibid PN 656 - 657
55 Ibid PN 559 - 565
56 Ibid PN 566 - 567
57 Ibid PN 185, 504 - 507 and 611
58 Ibid PN 216 - 217, 498, 501 - 503, 519, 524, 540, 609 and 892
59 Ibid PN 209 - 211
60 Ibid PN 212
61 Ibid PN 185 and 537
62 Ibid PN 186, 221 and 538
63 Ibid PN 190
64 Ibid PN 220
65 Ibid PN 203 - 205
66 Ibid PN 191 - 199, 223 - 224 and 662 - 668
67 Ibid PN 200 - 201
68 Ibid PN 169 - 176 and 674 - 676 and Exhibit A2 at paragraph 18
69 Ibid PN 177 - 178
70 Ibid PN 677 - 678 and 703
71 Ibid PN 568 - 573
72 Ibid PN 574 - 584
73 Ibid PN 585 - 588
74 Ibid PN 590 - 596
75 Ibid PN 613
76 Ibid PN 706
77 Ibid PN 710
78 Ibid PN 720 and Exhibit R2
79 Ibid PN 721 and Exhibit R3
80 Ibid PN 734 and Exhibit R4
81 Ibid PN 735
82 Ibid PN 744 - 748 and Exhibit R6
83 Ibid PN 756 - 757
84 Ibid PN 762 - 764 and Exhibit R7
85 Ibid PN 769 - 770 and Exhibit R8
86 Ibid PN 775
87 Ibid PN 776 - 777 and Exhibit R9
88 Exhibits R10 and R11
89 Transcript PN 798 - 814 and Exhibits R12 and R13
90 Ibid PN 819
91 Ibid PN 820 - 839
92 Ibid PN 822 - 832
93 Ibid PN 840 - 858
94 Exhibit A4
95 Transcript PN 912
96 Ibid PN 913, 1018 - 1019 and 1038
97 Ibid PN 1020
98 Ibid PN 1021 - 1025
99 Ibid PN 1026 - 1027
100 Ibid PN 915
101 Ibid PN 918 - 920
102 Ibid PN 922 and 937 and Exhibit A4 at paragraphs 15 - 16
103 Ibid PN 923
104 Ibid PN 924
105 Ibid PN 925
106 Ibid PN 929
107 Ibid PN 932 and Exhibit A4 at paragraph 6
108 Ibid PN 932
109 Ibid PN 935 - 936
110 Ibid PN 930 - 931
111 Ibid PN 943 and 945
112 Ibid PN 946 - 949
113 Ibid PN 950 - 955 and 999 - 1000
114 Ibid PN 1001 - 1003
115 Ibid PN 1005 - 1006 and 1014
116 Ibid PN 1041
117 Ibid PN 956 - 957
118 Ibid PN 961 - 966
119 Ibid PN 967, 973 - 976 and 997
120 Ibid PN 968 - 969
121 Ibid PN 970
122 Ibid PN 972 and 977
123 Ibid PN 940 - 942 and 978 and Exhibit A4 at paragraph 11
124 Ibid PN 979 - 980
125 Ibid PN 982 - 986
126 Ibid PN 987 - 988 and 1047
127 Ibid PN 989 - 996
128 Ibid PN 1028 - 1034 and Exhibit A4 at paragraph 17
129 Exhibit A5
130 Ibid at paragraph 10 and Transcript PN 1103 - 1106
131 Transcript PN 1107
132 Ibid PN 1108
133 Ibid PN 1109
134 Ibid PN 1124
135 Ibid PN 1128
136 Ibid PN 1133
137 Ibid PN 1136 - 1139
138 Ibid PN 1149 - 1159
139 Ibid PN 1160 - 1162
140 Ibid PN 1165 - 1170
141 Ibid PN 1172 - 1176
142 Ibid PN 1177 - 1178
143 Exhibit A6
144 Ibid at paragraph 7 and Transcript PN 1207 and 1245
145 Transcript PN 1243
146 Ibid PN 1209 - 1211 and 1229 and Exhibit with A6 at paragraph 10
147 Ibid PN 1212 - 1214 and 1273
148 Ibid PN 1274 - 1280 and 1315
149 Ibid PN 1281 - 1282
150 Ibid PN 1226 and 1283
151 Ibid PN 1219 - 1221 and Exhibit A6 at paragraph 9
152 Ibid PN 1222
153 Ibid PN 1224 - 1225
154 Ibid PN 1231
155 Ibid PN 1232 - 1233 and Exhibit A6 at paragraph 12
156 Ibid PN 1236 - 1237, 1267 - 1270 and 1272
157 Ibid PN 1271
158 Ibid PN 1238 - 1241, 1250 - 1251 and 1288 - 1298
159 Ibid PN 1242
160 Ibid PN 1244
161 Ibid PN 1247 - 1248
162 Ibid PN 1252 - 1253 and 1264
163 Ibid PN 1254 - 1255 and 1284 - 1287
164 Ibid PN 1257 and 1263
165 Ibid PN 1259 and 1316 and Exhibit A6 at paragraph 7
166 Ibid PN 1260 - 1262 and 1318 - 1320
167 Exhibit R16
168 Transcript PN 1352 and 1484
169 Exhibit R16 at paragraphs 37 - 48
170 Ibid at paragraph 43
171 Ibid at paragraph 46
172 Transcript PN 1348 - 1355
173 Ibid PN 1357 - 1359
174 Ibid PN 1360
175 Ibid PN 1361 and Exhibit R17 at paragraph 49
176 Ibid PN 1362 and Exhibit R16 at paragraph 50
177 Ibid PN 1363 - 1365
178 Ibid PN 1366 - 1380
179 Ibid PN 1386 - 1387 and PN 1555 - 1557 and Exhibit R16 at paragraph 8
180 Ibid PN 1388 - 1392
181 Ibid PN 1397 - 1402
182 Ibid PN 1403 - 1408
183 Ibid PN 1409
184 Ibid PN 1412 - 1415 and Exhibit R16 at paragraph 22
185 Ibid PN 1415 and ibid at paragraph 51
186 Ibid PN 1416 - 1417
187 Ibid PN 1418 - 1421 and 1490 - 1495
188 Ibid PN 1422 - 1424
189 Ibid PN 1427 - 1428
190 Ibid PN 1429
191 Ibid PN 1438 - 1439 and Exhibit R16 at paragraph 53
192 Ibid PN 1440 and 1485 - 1487
193 Ibid PN 1440
194 Ibid PN 1442 - 1444
195 Ibid PN 1445 - 1460 and PN 1558 and Exhibit R16 at paragraph 47
196 Ibid PN 1463 and ibid at paragraph 49
197 Ibid PN 1465 - 1471 and ibid
198 Ibid PN 1472
199 Ibid PN 1473
200 Ibid PN 1475
201 Ibid PN 1475
202 Ibid PN 1478
203 Ibid PN 1479
204 Ibid PN 1480 and 1553 - 1554
205 Ibid PN 1559
206 Ibid PN 1560
207 Ibid PN 1481 - 1482
208 Ibid PN 1483
209 Ibid PN 1496 - 1505 and 1579 and 1586 and Exhibit R16 at paragraphs 54 - 60
210 Exhibit R16 at paragraph 59
211 Transcript PN 1540 - 1548
212 Ibid PN 1549 - 1552 and Exhibit R16 at paragraph 62
213 Exhibit R16 at paragraphs 28 - 36
214 Exhibit R17
215 Ibid at paragraph 45and Transcript PN 1674 - 1677
216 Ibid PN 1679
217 Ibid PN 1680 and Exhibit R17 at paragraphs 12 - 17
218 Exhibit R17 at paragraph 43
219 Transcript PN 1600 - 1601 and 1604
220 Ibid PN 1602 - 1603 and 1605 and 1608 and 1622 - 1623 and 1625 - 1627
221 Ibid PN 1624
222 Ibid PN 1636 - 1638
223 Ibid PN 1646 - 1650
224 Exhibit R17 at paragraph 36
225 Transcript PN 1606
226 Ibid PN 1607
227 Ibid PN 1607 - 1608
228 Ibid PN 1740 - 1745
229 Ibid PN 1628 - 1635
230 Ibid PN 1762 - 1763 and Exhibit R17 at paragraphs 21-22
231 Ibid PN 1778 - 1783 and 1845 - 1846
232 Ibid PN 1847
233 Ibid PN 1784 and Exhibit R17 at paragraph 49
234 Exhibit R17 at paragraph 49
235 Transcript PN 1785
236 Ibid PN 1786 - 1789 and Exhibit R17 at paragraph 35
237 Ibid PN 1609
238 Ibid PN 1610 and Exhibit R17 at paragraphs 25 - 34
239 Ibid PN 1615 - 1620
240 Ibid PN 1639 - 1641 and Exhibit R17 at paragraph 5
241 Ibid PN 1642 - 1645
242 Ibid PN 1651 - 1654
243 Ibid PN 1691 - 1693 and 1732 - 1733 and 1835 - 1837 and Exhibit R17 at paragraph 43
244 Ibid PN 1696 - 1703 and 1706 and 1720 and 1726
245 Ibid PN 1720 and Exhibit R17 at paragraph 48
246 Ibid PN 1728 - 1731
247 Ibid PN 1828 - 1842
248 Ibid PN 1694 - 1704 and Exhibit R17 at paragraph 47
249 Ibid PN 1708 - 1711
250 Ibid PN 1790 - 1793
251 Ibid PN 1795 - 1796
252 Ibid PN 1798 - 1805
253 Ibid PN 1806 - 1807
254 Ibid PN 1813 - 1819
255 Exhibit R17 at paragraphs 51 - 53
256 Transcript PN 1822 - 1831
257 Ibid PN 1833 - 1834 and Exhibit R17 at paragraphs 54 - 55
258 Ibid PN 1926 - 1931
259 Ibid PN 1937
260 Ibid PN 1938 - 1941 and 2046
261 Ibid PN 1942 - 1943 and 2020
262 Ibid PN 1944 - 1945 and 1954 - 1955
263 Ibid PN 1946 - 1947
264 Ibid PN 1957 - 1960 and 2009 - 2011
265 Ibid PN 1961
266 Ibid PN 2012
267 Ibid PN 1944 - 1950 and 2024 - 2037
268 Ibid PN 1962 - 1963
269 Ibid PN 1967 - 1970
270 Ibid PN 2057 - 2058
271 Ibid PN 1973 - 1974
272 Ibid PN 1975 - 1980
273 Ibid PN 2013
274 Ibid PN 1998 - 2000
275 Ibid PN 2002 - 2005
276 Ibid PN 2014 and 2045
277 Ibid PN 2015
278 Ibid PN 2047
279 Ibid PN 2040 - 2044
280 Ibid PN 2048 and 2050
281 Ibid PN 2016 - 2019
282 Exhibit R18
283 Transcript PN 2105 - 2106
284 Ibid PN 2111
285 Ibid PN 2107 - 2110
286 Ibid PN 2112
287 Ibid PN 2113 - 2117
288 Ibid PN 2117 - 2118
289 Ibid PN 2119 - 2121 and Exhibit R18 at paragraph 22
290 Ibid PN 2122 - 2125 and ibid at paragraphs 26 - 30
291 Ibid PN 2126 and 2139 - 2140
292 Ibid PN 2128 - 2130
293 Ibid PN 2132 - 2133
294 Ibid PN 2134 - 2135 and 2138
295 Final Submissions of the Applicant dated 14 January 2013 at paragraph 6
296 Ibid at paragraph 7
297 Ibid
298 Ibid at paragraph 8
299 Ibid at paragraph 9
300 Ibid at paragraph 10
301 Ibid
302 Ibid
303 Ibid at paragraph 11
304 Ibid
305 Ibid and Exhibit R1 at paragraph 23
306 Ibid at paragraph 12
307 Ibid at paragraph 13 and Exhibit R1 at paragraph 23
308 Ibid at paragraph 15
309 Ibid
310 Ibid at paragraph 16
311 Ibid at paragraph 17
312 Ibid at paragraph 18
313 Ibid at paragraphs 18 - 19
314 Ibid at paragraph 20
315 Ibid at paragraph 21 and Exhibit R1 at paragraph 18
316 Ibid at paragraph 21
317 Ibid at paragraph 22
318 Ibid at paragraph 24
319 Ibid at paragraph 25
320 Ibid
321 Ibid at paragraph 28
322 Ibid at paragraph 27
323 Ibid at paragraph 29 and Exhibit R1 at paragraph 21
324 Ibid at paragraph 30
325 Ibid at paragraphs 30 - 31 and Exhibit R1 at paragraph 20
326 Ibid at paragraph 31
327 Ibid at paragraph 33 and Exhibit A1 at paragraph 16
328 Ibid at paragraph 34
329 Ibid at paragraph 35
330 Ibid at paragraph 36
331 Ibid
332 Ibid at paragraph 40
333 Ibid
334 Ibid and Exhibit R1 at paragraph 28
335 Ibid
336 Ibid
337 Ibid and Exhibit R1 at paragraph 28
338 Ibid
339 Ibid
340 Ibid
341 Ibid
342 Ibid
343 Ibid
344 Ibid
345 Ibid
346 Ibid
347 Ibid
348 Final Submissions of the Respondent dated 5 February 2013 at paragraphs 99 - 100
349 Ibid at paragraph 2
350 Ibid at paragraph 2(e)
351 Ibid at paragraph 5
352 Ibid at paragraph 6 - 9
353 Ibid at paragraph 11
354 Ibid at paragraphs 12 - 13
355 Ibid at paragraph 14 and Exhibit R15 at paragraphs 28 - 30
356 Ibid at paragraph 16 and ibid at paragraphs 31 - 35
357 Ibid at paragraph 8
358 Ibid at paragraphs 19 - 23 and Exhibit R15 at paragraph 3
359 Ibid at paragraph 24
360 Ibid
361 Ibid at paragraph 26
362 Ibid at paragraphs 26 - 27 and Exhibit R15 at paragraph 21
363 Ibid at paragraphs 28 - 29
364 Ibid at paragraph 30
365 Ibid at paragraphs 31 - 32
366 Exhibit R15 at paragraph 21
367 Ibid at paragraph 3 and Final Submissions of the Respondent dated 5 February 2013 at paragraph 33
368 Final Submissions of the Respondent dated 5 February 2013 at paragraph 35 - 36
369 Ibid at paragraphs 38 - 39
370 Ibid at paragraph 40
371 Ibid
372 Ibid at paragraphs 41 - 42
373 Ibid at paragraph 43
374 Ibid at paragraph 44
375 Ibid at paragraphs 44 - 45 and 49
376 Ibid at paragraphs 46 - 48
377 Ibid at paragraphs 51 - 52
378 Ibid at paragraph 53
379 Ibid at paragraph 54
380 Ibid at paragraphs 55 - 58
381 Ibid at paragraph 59 - 60
382 Ibid at paragraph 62
383 Ibid at paragraph 63 - 65
384 Ibid at paragraph 65
385 Ibid at paragraph 69
386 Ibid at paragraph 70 and Exhibit R15 at paragraph 15
387 Ibid at paragraph 71
388 Ibid at paragraph 74 and Exhibit R15 at paragraph 16
389 Ibid at paragraphs 75 - 76
390 Ibid at paragraph 76
391 Ibid at paragraph 77
392 Ibid
393 Ibid at paragraph 78
394 Ibid at paragraphs 78 - 79
395 Ibid at paragraphs 80 - 81
396 Ibid at paragraph 81
397 Ibid at paragraph 82
398 Ibid at paragraph 83
399 Ibid at paragraph 84 and Exhibit R15 at paragraphs 36 - 38
400 Ibid at paragraph 85 and ibid at paragraph 25
401 Ibid at paragraph 87 and ibid at paragraph 26
402 Ibid at paragraph 88 and ibid at paragraph 24
403 Ibid at paragraph 89
404 Exhibit R15 at paragraphs 48 - 49
405 Ibid at 50 - 54 and Final Submissions of the Respondent dated 5 February 2013 at paragraphs 90 - 91
406 Final Submissions of the Respondent dated 5 February 2013 at paragraph 92
407 Ibid at paragraph 93
408 Exhibit R15 at paragraph 55 - 58
409 Final Submissions of the Respondent dated 5 February 2013 at paragraph 94
410 Ibid at paragraph 95 - 96
411 Ibid at paragraph 97
412 Ibid at paragraph 98
413 Ibid at paragraph 102 and Exhibit R15 at paragraph 39
414 Ibid at paragraph 103
415 Ibid
416 Ibid
417 Ibid and Exhibit R15 at paragraph 60
418 Exhibit A2 at Attachment KW1 and Exhibit R15 at paragraph 2
419 Final Submissions of the Respondent dated 5 February 2013
420 Final Submissions of the Applicant dated 14 January 2013 at paragraph 12
421 Final Submissions of the Applicant dated 14 January 2013
422 Exhibit A2 at Attachment KW2
423 Ibid
424 Ibid
425 Final Submissions of the Respondent dated 5 February 2013 at paragraphs 8 - 9
426 Final Submissions of the Applicant dated 14 January 2013 at paragraph 14
427 Transcript PN 319 - 321 and 325
428 Ibid PN 321 and 326
429 Exhibit R16 at Attachment ADW4
430 Exhibit A2 at Attachment KW2
431 Transcript PN 333 - 338, 343 - 345, 350, 355, 357 - 358, 372 - 373 and 375 and Exhibit A2 at paragraph 7
432 Final Submissions of the Respondent dated 5 February 2013 at paragraph 31
433 Ibid PN 26, Exhibit R17 at paragraph 47 and Transcript PN 1799
434 Transcript PN 254 and 257
435 Ibid PN 961 and Exhibit A4 at paragraph 10
436 Ibid PN 967, 969, 973 - 976 and 978 and Exhibit A4 at paragraph 10
437 Ibid PN 477
438 Ibid PN 478
439 Final Submissions of the Applicant dated 14 January 2013
440 Transcript PN 354 and373 - 374 and Exhibit A2 at paragraph 13
441 Transcript PN 1799
442 Ibid PN 1455
443 Exhibit R1
444 Exhibit A2 at Attachment KW2
445 Exhibit R14
446 Exhibit A2 at paragraph 14
447 Final Submissions of the Respondent dated 5 February 2013 at paragraphs 51 - 54
448 Transcript PN 932
449 Ibid PN 1440
450 Final submissions of the respondent dated 5 February 2013 at paragraph 61
451 Exhibit R16 at paragraph 43, Exhibit R17 at paragraph 45(c) and Transcript PN 1424
452 Transcript PN 1424
453 Exhibit A2 at Attachment KW1
454 Exhibit R13
455 Final submissions of the applicant dated 14 January 2013 at paragraph 40
456 Ibid
457 Ibid
458 Final submissions of the respondent dated 5 February 2013 at paragraph 94
459 Ibid at paragraphs 91 and 93
460 Exhibit A2 at Attachment KW3
461 Exhibit R13
462 Exhibit R1
463 Exhibit A2 at Attachment KW3
464 Ibid
465 Final submissions of the respondent dated 5 February 2013 at paragraph 97
466 Transcript PN 2015
467 Ibid PN 2047
468 Ibid PN 2015
469 Ibid PN 2015
470 PR536078
Printed by authority of the Commonwealth Government Printer
<Price code J, PR535328>
3