Lloyd and the Australian Nursing Federation (Victorian Branch) v Mildura Base Hospital
[1997] IRCA 89
•06 March 1997
DECISION NO:89/97
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - serious misconduct - employer’s honest belief of misconduct held on reasonable grounds after sufficient enquiry - Applicant responsible for management of nursing home - Applicant not personally involved in any patient abuse or in any other inappropriate conduct directly involving residents of nursing home, reasonable grounds for concluding that Applicant involved in mismanagement to a degree which constituted misconduct
Workplace Relations Act 1996 ss.170DB, 170DC, 170DE, 170EA
CASES:
Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J) Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224.
Puccio v Catholic Education Office and Another (unreported, IRCA, von Doussa J, 17 May 1996)
Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 and 373.
DIANNE JUDITH LLOYD AND THE AUSTRALIAN NURSING FEDERATION (VICTORIAN BRANCH) -v- MILDURA BASE HOSPITAL
No. VI-1262 of 1996
Before: Ryan JR
Place: Melbourne
Date: 6 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1262 of 1996
B E T W E E N :
LLOYD
& THE AUSTRALIAN NURSING FEDERATION
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 6 March 1997
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1262 of 1996
B E T W E E N :
LLOYD
& THE AUSTRALIAN NURSING FEDERATION
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
Before: Ryan JR
Place: Melbourne
Date: 6 March 1997
REASONS FOR JUDGMENT
THE APPLICATION
This is an application for relief in respect of termination of employment. The application was lodged by the Australian Nursing Federation (Victorian Branch) (the Union) on behalf of Dianne Lloyd (the Applicant).
THE DISMISSAL
On 3 February 1996 the Chief Executive Officer of the Mildura Base Hospital advised the Applicant in writing that her employment as a Charge Nurse had been terminated immediately “for serious and wilful misconduct”.
The grounds for the decision were stated in the letter to be:
failure to fully investigate issues when presented and include residents and/or relatives in the process of investigation and failure to act as a Charge Nurse
failure to address and appropriately deal with standards of professional behaviour including conveyor belt showering
failure to act on allegations of aged abuse
failure to ensure that award conditions and entitlements of staff were appropriately monitored
failure to appropriately manage gross insubordination and harassment by members of staff
THE CLAIM
The Applicant claims unlawful termination of employment and asserts that:
there was no valid reason for the termination
the termination was harsh, unjust and unreasonable
the hospital did not afford her any opportunity to respond to the allegations made against her
the hospital failed to give her four weeks notice of termination which, she claims, was required under s170DB
THE APPLICANT’S BACKGROUND
The Applicant trained as a nurse at the Mildura Base Hospital. From 1978 to 1996 she worked in Raechel Willson House, a nursing home attached to the hospital. For seventeen years, from early 1979 to early 1996, she was the charge nurse responsible, on her own admission, “for the management of Raechel Willson House”.
THE COMPLAINT
On 23 November 1995 the Secretary of the Resident/Relative Group at Raechel Willson House wrote to the Director of Nursing at Mildura Base Hospital. She described herself as “a concerned relative and Secretary of the .....Group”. She raised “concerns as to nursing practices in Raechel Willson House” and requested that “the source of complaints be kept strictly confidential, even from the unit coordinator, as we fear retribution against our residents.”
The Secretary of the group also enclosed what she described as “four letters written by relatives”. Three of these letters are handwritten and signed. Two are from women complaining about treatment of their husbands, both residents at Raechel Willson House. One is from a woman complaining about treatment of her mother, a resident at Raechel Willson House. The fourth “letter” (if it be a letter) is a typed, unsigned, anonymous note which alleges that “if an inmate dares make a complaint some of the nurses penalise them with minimal care and a complete lack of T.L.C.” The anonymous note provides the first names of four State Enrolled Nurses then working at Raechel Willson House. One of the signed letters provides the first names of five State Enrolled Nurses then working in the nursing home.
THE INVESTIGATION
The Applicant gave evidence that the Deputy Director of Nursing at the hospital, Mr Bill Brown, approached her on 7 December 1995 about “some complaints from relatives”. She deposed that she discussed the complaints at a meeting with Mr Brown on 8 December and at a second meeting on 11 December. The Director of Nursing, Mrs Ella Lowe, was present at the meeting on 11 December.
Mrs Lowe gave evidence that she directed Mr Brown to speak to Human Resources Manager, Mr Caulfield and the Assistant Director of Nursing (Human Resources), Ms Beaumont, and the Applicant and “get in train an investigation of the complaints”. Mrs Lowe stated that she briefed the Chief Executive Officer, Mr Duckett, on 13 or 14 December . In fact, Mr Duckett gave evidence that he was first advised of the complaints on 11 December.
A number of staff appear to have been interviewed between 12 and 14 December and on 14 December Mr Duckett directed a panel comprising Mr Caulfield, Mrs Lowe and Mr Brown to conduct a more detailed investigation. On 15 December Mr Corboy, Principal Human Resources Consultant, Victorian Hospitals Industrial Association was telephoned by Mr Caulfield. Mr Corboy remained in telephone contact with Mr Caulfield and attended at the hospital on 20 December. On that day he read the statements that had been taken and signed by various staff members and his evidence is that the allegations were sufficiently serious to justify standing down the Applicant and several State Enrolled Nurses.
Mr Duckett confirmed in his evidence that the Applicant and several State Enrolled Nurses were stood down on 21 December.
THE SUSPENSION
On 21 December the Chief Executive Officer for the hospital wrote to the Applicant in the following terms:
“Please be informed that very serious allegations of misconduct have been made about you and your professional performance in your employment with Mildura Base Hospital.
The seriousness of these allegations is such that I have decided to stand you down with pay immediately.
Please note that a thorough and immediate investigation into these allegations will be conducted by the Hospital. As part of these preliminary investigations you will be given every opportunity to respond to the allegations made.
A written communication will be forwarded to you not later than the 2nd January 1996, detailing these allegations and you will be directed to respond in writing to these allegations within a defined period.
In addition I direct that you be available to attend the hospital at 9.00a.m. on the 5th January 1996, to be interviewed by senior management representative. Please be at the Director of Nursing’s office at the above time. I advise that you may wish to bring an observer to this meeting.
I should also inform you that should any form of intimidation or harassment be carried out against any person or persons who have advised the hospital of the allegations, such action itself will be regarded by the hospital as serious and wilful misconduct and will result in the instant dismissal of those involved.”
On 2 January 1996 the Chief Executive Officer wrote to the Applicant again and detailed a series of “allegations concerning your conduct and performance at the Raechel Willson House Nursing Home”. The letter stated that “copies of individual statements are attached”. The eighteen page attachment did not comprise identifiable individual statements but appears to be a compilation of unsourced extracts from signed and dated statements by persons most of whom appear to be staff who have witnessed certain events and are complaining about them.
The letter concludes as follows:
“Given the severity of these allegations, I direct you to consider and respond in writing. Further I advise that you are required to attend the Mildura Base Hospital at 9.00am on Monday the 8th January, 1996.”
On 3 January the Applicant replied to the Chief Executive Officer stating that “to reply to the allegations...it is essential...(to) have access to various documents that relate to the alleged incidents.”. The Applicant nominated various categories of documents and asked that they be made available as soon as possible. She also indicated that union representation was unavailable until Thursday 11 January and that she had been advised not to participate in any meetings until representation was available. The Applicant concluded her letter by asking for details of why it was necessary to attend the hospital on Monday 8 January.
The Chief Executive Officer replied immediately the same day (i.e. 3 January). He indicated that in general terms the documents requested by the Applicant had been made available or would be made available to her.
His letter continued as follows:
“With regard to ANF representation not being available until Thursday 11th January 1996, the Hospital can not hold up its inquiry on this account. I am advised that there are other able local ANF union representatives that are available.
Your position of being stood down with pay will continue until the Hospital has completed its inquiry and a decision made in regard to the allegations and your response to these allegations. The Hospital is most anxious, for these reasons, that the inquiry be completed as soon as possible.
Your attendance at the Hospital on Monday 8th January 1996, at 9.00am is to attend the inquiry and address the panel with your response to the allegations that have been made against you.
This panel will consist of the Director of Nursing, Mrs Ella Lowe, Deputy Director of Nursing, Mr Bill Brown, and the Human Resources Manager, Mr Bruce Caulfield.
Your written response addressing and answering the allegations prior to 9.00am on the 8th January 1996, is expected.”
About the time the above letter was written the union appears to have suggested that there should be “an independent element” on the panel of inquiry. Mr Duckett confirmed in evidence that a former councillor of the Shire of Mildura, Mrs Elizabeth Maffei replaced Mr Brown as a member of the panel. In fact Mrs Maffei was appointed as Chairperson although the report of the panel (“the Inquiry”) records Mr Brown as present at the inquiry on 10 and 11 January 1996 in the role of “Secretary”.
By letter dated 4 January an Industrial Officer of the union requested that the meeting scheduled for 8 January be deferred to 10 January on the basis that the Applicant needed more time to respond to serious allegations and on the basis that a nominated union officer would be available to attend on 10 January.
On 7 January the Chief Executive Officer wrote to the Applicant again and advised that “the Hospital has rescheduled the inquiry to Wednesday 10 January 1996 at 2pm to enable you to further consider allegations made against you”.
The letter continued as follows:
“You will be required to attend this inquiry and you will be given an opportunity to defend yourself against the allegations that have been made against you. This opportunity is available to you under Section 170DC of the Industrial Relations Act 1988 (copy attached).
Should you decline this offer or opportunity, the Hospital will decide on the allegations on the evidence that has been presented to it.
I have also attached further particulars relating to the serious allegations made against you and the possible contravention of various Standards, Rules, Policies and Acts and Regulations. Please note that these further particulars may have caused these allegations to vary slightly from those sent to you on 2nd January, 1996. This may have happened because of the original witnesses supplying more and further particulars in regard to their statements.
The seriousness of these allegations are such that the Hospital is protecting the identity of the people who have made these allegations as they fear that they may be subject to reprisals, intimidation or harassment type action.
Please be advised that as indicated in these further particulars, the incidents that have been set out have been properly identified and witnessed by one or more witnesses.
Again, I should inform you that should any form of intimidation or harassment be carried out against any person, or persons who have advised the Hospital of the allegations, such action itself will be regarded by the Hospital as serious and wilful misconduct and will result in instant dismissal of those involved.”
THE INQUIRY INTO ALLEGATIONS OF MISCONDUCT - 10 AND 11 JANUARY 1996
The report of the inquiry (Exhibit R20) indicates that
Mrs Maffei, Mrs Lowe, Mr Caulfield and Mr Brown were present and that the Applicant was accompanied by Mr Reid, a Union Industrial Officer and Ms Smith, a Union Job Representative
on 10 January the inquiry sat between 3:05 pm and 3:25 pm, 3:57 pm and 4:50 pm, 4:54 pm and 5:45 pm, 6:40 pm and 7:20 pm, 7:30 pm and 9:15 pm
the Applicant was allowed to consult separately with her Union representatives between 3:25 pm and 3:57 pm, between 4:50 pm and 4:56 pm, between 5:45 pm and 6:40 pm and between 7:20 pm and 7:30 pm
It is not necessary to go into the detail of the numerous allegations made against the Applicant. The allegations and extracts from relevant statements signed by staff and residents were provided to the Applicant in writing with Mr Duckett’s letter of 7 January. The Court is satisfied that the Applicant and the union had access to signed statements and access to the smaller number of statements where the identity of the complainant was suppressed.
At the inquiry on 10 January eleven of fifteen specific allegations were read out to the Applicant and the Applicant responded to each of the eleven allegations. The allegations to which the Applicant responded included allegations of
failure to investigate rough handling of a resident
failure to investigate the leaving of a resident on a toilet for an excessive period of time
failure to take action to correct conveyor belt showering after it was brought to attention
failure to provide appropriate orientation to staff
failure to address complaints of excess noise
failure to investigate an incident in which a resident was allegedly required to beg for a towel to dry her hair
failure to take action to correct the practice of staff taking extended breakfast breaks
failure to take action to correct abusive behaviour by State Enrolled Nurses in the vicinity of residents
failure to take action in respect of alcohol allegedly consumed by staff while on duty
At 9:15 pm on 10 January the panel agreed to reconvene at 9:15 am on 11 January. At 9:37 am on 11 January Mr Reid apologised for being late and stated that the Applicant “had only 3 hours sleep and was not able to go on”.
In the panel’s final report of 31 January (Exhibit R25), a report signed by Mrs Maffei on her own behalf and on behalf of Mrs Lowe and Mr Caulfield, Mrs Maffei reported that
“attempts to set more appropriate dates for the panel were unsuccessful”
the Applicant’s written responses to the allegations were considered and in many cases inconsistencies in the written responses and the oral responses on 10 January were noted
“further information sent to (the Applicant) for clarification was responded to with a brief letter”
In this respect the Court notes that on 11 January the Chief Executive Officer wrote to the Applicant (Exhibit R22) and indicated that the panel wanted to raise certain allegations which it had been unable to put on 10 January. The allegations put to the Applicant in this letter were to the following effect
an allegation by a State Enrolled Nurse, confirmed by another State Enrolled Nurse and by an acting Charge Nurse, of failure on the part of the Applicant to issue a proper direction or seek direction from a more senior supervisor in relation to “gross insubordination (to the Applicant) and harassment (of the Applicant) by members of....staff”
an allegation by an unnamed registered nurse, confirmed by a named acting Charge Nurse that the Applicant “was aware of the staff practice of watching television during paid working hours”
an allegation by an unnamed relative of a resident and confirmed by another unnamed relative of a resident that complaints brought by relatives were “dismissed” or “belittled” and later found to be “legitimate”
The Court also notes that on 12 January an Industrial Officer of the Union wrote to Mr Corboy (the V.H.I.A. Consultant) and outlined the Union’s “intended process for response to the additional questions posed to (the Applicant) by letter dated 11 January”. This letter (Exhibit R23) contained the following statement:
“Ms Lloyd is extremely upset by the events of yesterday and has sought medical attention. Ms Lloyd does intend to provide further details to the panel and will do so, in writing, on Monday 15 January 1996. It is the view of ANF (Vic Branch) that this information, in addition to Ms Lloyd’s original written statement concludes our response to the allegations at this stage. There will therefore be no requirement for further attendance before the panel at 3.00 p.m. on Monday.
ANF (Vic Branch) will await formal advice of the Hospital’s determination of the allegations against our member once their investigation is concluded.”
The Court further notes that the Applicant wrote to Mr Duckett on 14 January (Exhibit R24) in response to his letter of 11 January (Exhibit R22) and stated
“I am unable to provide any further information in regard to the allegations made.”
The final report to Mr Duckett by Mrs Maffei on behalf of the panel of inquiry contained the following findings
“serious deficiencies in investigating, following up and documenting the handling of issues and incidents”
“standards of nursing care have been seriously compromised over a prolonged period of time”
“aged abuse has occurred on repeated occasions and...the failure to act on..complaints when presented has exposed residents to ongoing abuse”
“available staff hours were considerably reduced because of extended and unauthorised breaks...this compounded the poor work practices of some staff, further reducing the standard of care”
“failure to appropriately manage gross insubordination and harassment (of the Applicant) by members of staff”
THE RESPONDENT’S POSITION
This is a case in which the Respondent relies on the failure of the Applicant to manage Raechel Willson House. The Respondent asserts that
it had reasonable grounds for concluding that a series of incidents and practices occurred
the incidents and practices breached hospital policies, Commonwealth Nursing Home Outcome Standards, Nursing Quality Assurance Committee Standards, the Equal Opportunity Act and the Occupational Health and Safety Act
a number of State Enrolled Nurses under the direct control and supervision of the Applicant were involved in the incidents and practices
the Applicant failed to address the incidents and practices
In more specific terms the Respondent asserts the Applicant failed to
investigate the incidents and practices
act on complaints
supervise staff under her direct control
manage Raechel Willson House adequately
ensure adequate standards of nursing care
The Respondent did not attempt to establish the occurrence of any or all of the incidents and practices by calling evidence from those who made statements or from those who investigated the complaints or, with one exception, from those who sat on the panel of inquiry. Mrs Lowe sat on the panel of inquiry and directed the earlier investigations. She was an important witness for the Respondent.
The Respondent’s position was based in no small measure on Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J) and on Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224.
In Bi-Lo at 229-230 the Full Bench of the South Australian Industrial Relations Commission said:
“An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal.”
In Imogen at 10 von Doussa J states:
“It has been held that a “valid” reason exists where the employer had a “sound, defensible or well founded” reason for termination of the applicant’s employment: see Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 and 373.
These dictionary definitions for the word “valid”, whilst wide enough to include a reason based on an honest belief held on reasonable grounds, do not assist in determining whether on the true interpretation of the section such a belief, if later shown to be erroneous, could nevertheless still constitute a “valid reason” for a dismissal, The expression “valid reason” must be read in the full context of the Act. The reason must be a “valid reason connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”
In virtually every situation of termination of employment, hardship to a greater or lesser degree is likely to come to the employee. Often the economic and personal hardship to the employee and to his family will be considerable. But in considering the application of Division 3 of Part VIA of the Act, it must be recognised that its provisions are intended to operate in the practical arena of commercial activity, and that in the endeavour to achieve industrial fairness it is necessary to balance the interest and well being of an individual employee against the interests of the employer, and also to have regard to matters of wider public interest which may be involved. The construction of the Act is not to be considered only from the viewpoint of the employee.”
In Imogen at 11 von Doussa J states:
“Section 170DE(1) should not be construed so as to exclude from the notion of a “valid reason” an honest belief held on reasonable grounds by the employer, after inquiry of the type envisaged in Bi-Lo Pty Ltd v Hooper, that a state of fact exists which justifies termination of the employment. In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of s170DE(1) exists for terminating the employment of the employee.”
In Sangwin and also in Puccio v Catholic Education Office and Another (unreported, IRCA, von Doussa J, 17 May 1996) the Court focused on the investigation by the employer and the reasonableness of its belief that its operational requirements required the termination of an employee believed by the employer to have been guilty of misconduct. The court noted the need for an appropriate investigation to ascertain relevant facts, and then the need to put the matters of concern to the employee. Provided such a reasonable approach is taken and the employer has an honestly held belief that its operational requirements require the termination of employment, then the employer has satisfied the requirements of s170DE(1) of the Act.
Von Doussa J said in Sangwin at 11:
“An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator’s employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?”
In Sangwin the employer was ultimately unable to satisfy the court that it had a sound reason. Puccio (above), in contrast, was a case analogous to the “health worker or child care provider” referred to as an example in Sangwin. The case dealt with a teacher dismissed for alleged misconduct. Von Doussa J held that the respondent had a valid reason because he was satisfied that the inappropriate conduct alleged did in fact occur. He said:
“The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee’s capacity or conduct within the meaning of s170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee.”
The Respondent does not accuse the Applicant of personal involvement in patient abuse or in any other inappropriate conduct directly involving the residents of Raechel Willson House. The Respondent asserts that the Applicant failed to stop abuse, failed to adequately investigate and report complaints about the conduct of nurses under her control and failed to manage Raechel Willson House.
THE APPLICANT’S POSITION
The Applicant, through Counsel, attacks the dismissal of the Applicant as without valid reason. Counsel for the Applicant points out that no evidence was put to the Court from those who made complaints against the State Enrolled Nurses or from those who brought information of the incidents to the attention of the Applicant.
It is asserted that the Court cannot be satisfied that there was or could be a valid reason for termination of the Applicant’s employment without hearing direct evidence from the complainants and, more importantly, direct evidence from those who advised the Applicant of the various incidents.
It is further asserted that the Court must determine what happened and determine whether the response of the Applicant was adequate. Counsel for the Applicant put it as follows:
“The Respondent must lead admissible evidence to enable the Court to appreciate the circumstances which warranted investigation and action. The Court cannot say the response of the Applicant was inadequate without admissible evidence of what happened. The only evidence was that of the Applicant herself.”
The attack on “validity of termination” was extended to embrace
the reliance of the Respondent on Sangwin v Imogen Pty Ltd
alleged lack of assistance to the Applicant and managerial responsibility at levels above that of Charge Nurse
defects in the panel of inquiry process leading to breaches of s170DC
The Sangwin argument was as follows. The test is honest belief on reasonable grounds after adequate inquiry. The Court cannot determine whether the Respondent held an honest belief on reasonable grounds without having direct evidence of the circumstances of the incidents and practices which are said to justify the termination of the Applicant’s employment because of the Applicant’s failure to investigate and act in respect of the incidents and practices.
The “higher responsibility” argument was put as follows. The Applicant may not be without fault but the difficulties in the management of Raechel Willson House and in the control and supervision of nursing staff below the Applicant were indicative of problems “more fundamental than those which can be properly visited on the Applicant”.
The claim that the Respondent had breached s170DC and failed to give the Applicant adequate opportunity to respond to the allegations seems based on an attack on the composition of the panel of inquiry. It is suggested that a panel of inquiry involving the Director of Nursing and the Director of Human Resources and with the Deputy Director of Nursing as secretary led inevitably to blaming the Applicant and absolving the higher nursing managerial structure.
FINDINGS
Dealing with these matters in reverse order the Court finds that:
the Applicant was given extensive, numerous and adequate opportunities to respond to the allegations made and there was no breach of s170DC
the Court is dealing with a claim by the Applicant and action taken by the Respondent to terminate the Applicant’s employment. The possibility that some responsibility and culpability might lie above the Applicant (e.g. her immediate superior), does not absolve the Applicant from responsibility and does not in this case detract from any valid reason for termination
the Respondent held an honest belief on reasonable grounds after adequate investigation. The belief was that the Applicant was responsible for
· serious deficiencies in the investigation, documentation and handling of issues and incidents
· seriously compromised standards of nursing care
· continuation of “aged abuse”
· reduction of available staff hours because of extended and unauthorised breaks
· mismanagement including failure to manage gross insubordination and harassment of the Applicant herself
the Applicant was not personally involved in any patient abuse or in any other inappropriate conduct directly involving the residents of Raechel Willson House
there was a valid reason for the termination of the Applicant’s employment and this was a sound, defensible and well founded reason and was based on the Respondent’s honest belief the Applicant had failed to manage Raechel Willson House and had failed to adequately discharge her duties as Charge Nurse
The Court notes in conclusion that it is satisfied that the Applicant failed to manage Raechel Willson House and to adequately discharge her duties as a Charge Nurse and in the circumstances was guilty of misconduct of a kind such that it was unreasonable to continue the employment during the notice period prescribed in section 170DB(2). It follows that the application under s170EA must be dismissed.
In reaching this conclusion the Court took account of the totality of the evidence presented in the hearing and in particular
the statements taken during the preliminary investigation and provided to the Applicant and her advisers
the responses made in writing by the Applicant
the responses reportedly made by the Applicant when she appeared at the Panel of Inquiry
the evidence of the Applicant given in Melbourne on 6 December 1996
The evidence of the Applicant in the hearing was sufficient of itself to convince the Court that the Applicant failed to adequately investigate, report and record complaints about alleged incidents and practices and that her admitted failure to investigate, report and record constituted mismanagement at a level which amounted to serious misconduct.
MINUTES OF ORDERS
THE COURT ORDERS:
That the Application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 14 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 6 March 1997
Solicitors for the Applicant: Ryan Carlisle and Thomas
Counsel for the Applicant: Mr R Niall
For the Respondent: Victorian Hospitals Industrial Association
Counsel for the Respondent: Mr L Kaufman
Date of hearing: 3, 4, 5 September 1996
6 and 9 December 1996
Date of judgment: 6 March 1997