Louise Hay v Ambulance Victoria
[2020] FWC 2193
•28 APRIL 2020
| [2020] FWC 2193 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Louise Hay
v
Ambulance Victoria
(U2019/2083)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 28 APRIL 2020 |
Application for an unfair dismissal remedy.
[1] On 26 February 2019, Ms Louise Hay made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Ambulance Victoria (AV). Ms Hay seeks reinstatement and compensation for lost remuneration.
[2] AV denies that Ms Hay was unfairly dismissed on the basis that the dismissal was not harsh, unjust or unreasonable.
Background
[3] Ms Hay was employed by AV in the position of Mobile Intensive Care Ambulance (MICA) Paramedic. On 21 February 2019 Ms Hay’s employment was summarily terminated for serious and wilful misconduct pursuant to clause 60.5 of the Ambulance Victoria Enterprise Agreement 2015 (Varied and Extended) (Agreement). At the time of her dismissal Ms Hay had been employed by AV for approximately 19 years and held the substantive role of Paramedic for approximately 10 years. The misconduct relied upon by AV to justify Ms Hay’s termination of employment arose from the attendance by Ms Hay on 2 October 2017 to a 15 year old boy presenting in cardiac arrest due to intentional hanging.
[4] On 5 – 7 June, 24 – 26 July and 13 September 2019 I conducted the proceeding by way of hearing. Pursuant to section 596 of the Act, Mr Hull appeared on behalf of Ms Hay and Mr Harrington appeared on behalf of AV.
Witnesses
[5] Ms Hay gave evidence on her own behalf and the following witnesses also gave evidence on her behalf:
• Ms Cecilia Wilmot Griffiths, Ambulance Paramedic
• Dr Belinda Flanagan, Academic and Nationally Registered Nurse, Midwife and Paramedic
[6] The following witnesses gave evidence on behalf of AV:
• Mr Mark Rogers, Chief Operating Officer
• Mr Alan Snow, Paramedic Educator
• Ms Maddie Brennan, Advanced Life Support Paramedic
• Mr Jarrod Wakeling, MICA Paramedic
• Ms Jessica Pemberton, Paramedic
• Ms Kelly Mercer, Advanced Life Support Paramedic
• Ms Melanie Jorgensen, mother of Lachlan Jorgensen
• Mr Leigh Jorgensen, father of Lachlan Jorgensen
• Mr Michael Stephenson, Executive Director Emergency Operations
• Prof Stephen Bernard, Medical Director
• Mr Daniel Cudini, Clinical Support Officer
• Mr Murray Kennedy, MICA Paramedic 1
Submissions
[7] Ms Hay filed submissions in the Commission on 26 April 2019, 9 May 2019, 4 June 2019 and 14 June 2019. AV filed submissions in the Commission on 24 May 2019, 27 May 2019 and 14 July 2019.
[8] Final written closing submissions were filed by Ms Hay on 23 August 2019 (and an amended version on 12 September 2019). Final written closing submissions were filed by AV on 10 September 2019.
Initial matters
[9] The initial matters which must be decided before the merits of an application are considered are not in dispute and I find that:
• Ms Hay’s employment with AV terminated at the initiative of AV;
• Ms Hay was employed for a period in excess of 12 months and had therefore completed a period of employment with AV of at least the minimum employment period;
• at the time of dismissal, the Agreement applied to Ms Hay’s employment. I am therefore satisfied that, at the time of dismissal, Ms Hay was a person protected from unfair dismissal;
• AV was not a small business employer within the meaning of the Act and therefore the Small Business Fair Dismissal Code did not apply; and
• Ms Hay’s dismissal was not effected for reasons of redundancy and therefore it was not a case of genuine redundancy within the meaning of section 389 of the Act.
[10] Having considered each of the initial matters, I am required to consider the merits of Ms Hay’s application.
[11] I have determined that Ms Hay’s dismissal was not unfair. These are my reasons for that decision.
Background
Terminology
[12] Set out in Annexure A to this decision is a glossary of medical terminology used in this decision and an explanation of some of the medical equipment used and referred to in the evidence.
Base chronology of events
[13] The following base chronology of events is uncontested.
[14] On the evening of 2 October 2017, at 20.37 AV received a 000 emergency call to attend a 15 year old boy (Lachlan) presenting in cardiac arrest due to intentional hanging (Lachlan’s Case). Crew 1, comprising, Ms Kelly Mercer, an Advanced Life Support (ALS) Paramedic, and Ms Madelaine Brennan, then a Graduate Paramedic, was dispatched at 20.37.40. Crew 2, also comprising one ALS Paramedic, Mr Alan Snow, and a Graduate Paramedic, Ms Jessica Pemberton, was dispatched at 20.37.46. Crew 3, being a MICA crew comprised of Ms Hay and Mr Jarrod Wakeling (MICA 24), was dispatched at 20.37.54.
[15] Crew 1 was first on scene, arriving at 20.41.31, and with Lachlan at approximately 20.44. Crew 2 arrived on scene at 20.52.13 and MICA 24, and therefore Ms Hay, arrived on scene at 20.56.41. MICA 24 were with Lachlan at 20.59.39.
[16] The Helicopter Emergency Medical Service (HEMS 1) was dispatched at 20.45.38 and its dispatch cancelled by Mr Wakeling at 20.59.51.
[17] At 21.08.00, after approximately 23 – 24 minutes of resuscitation and approximately eight minutes after MICA 24 arrived at the scene, attempts to resuscitate Lachlan ceased. Lachlan died at the scene.
[18] Following clearing the scene each attending crew completed an electronic patient care record (ePCR) in relation to Lachlan’s Case.
[19] Following Lachlan’s death, AV undertook a clinical case review of the circumstances of Lachlan’s Case. That review was undertaken by Mr Daniel Cudini. On 20 November 2017 Mr Cudini produced a clinical case review report of his review (Cudini Report).
[20] The Cudini Report identified the following issues for investigation:
“1. The Riddles Creek (RC) ALS crew were first on scene (o/s) and observed asystole as the presenting rhythm on the Zoll monitor screen. The rhythm was not printed out to confirm. This was relayed during handover to both Hanging Rock (HR) ALS crew and MICA 24 (Z24). The ZOLL ECG summary displays Sinus Bradycardia as the initial presenting rhythm.
2. On arrival of the second ALS crew (HR), the patient continued to present with an obstructed airway due to copious vomitus. This was unsuccessfully rectified by the RC crew (first crew o/s). The airway was effectively cleared and ventilated by the HR crew 14 minutes after the resuscitation had commenced.
3. The alleged down time of the patient was 10 - 20 minutes and information identified through the interview process could suggest the downtime was < 10 mins.
4. Upon arrival of Z24 (21:02), changes in ECG rhythms had occurred associated with significant improvement in ETCO2 and effective CPR being performed. The Z24 attendant advised the paramedic’s o/s to cease CPR / Advance Cardiac Life Support (ACLS) at 21:08 after approximately 23 mins of AV resuscitation.
5. Allegedly, the Z24 attendant was advised three times by the ALS Paramedic Educator o/s that the patients ECG rhythm had changed (Sinus Bradycardia and Accelerated Idioventricular) and was associated with significant improvement in ETCO2 / patient skin colour. This was allegedly dismissed on all three occasions by the Z24 attendant and resuscitation was ceased.
6. The ECG rhythms / ETCO2 highlighted in the Zoll summary (Sinus Bradycardia and Accelerated Idioventricular) reflect the assessment made by the ALS Paramedic Educator (Issue no.5) prior to the Z24 attendant advising to cease resuscitation.
7. AV resuscitation comprised of; CPR, intravenous (IV) Adrenaline and ventilation via a supraglotic airway device (iGel) and resuscitation ceased after approximately 23 minutes. The Z24 attendant assumed the scene leader role at 21:00 (16 minutes into the resuscitation) and no endotracheal intubation (ETI) was performed by the Z24 airway MICA paramedic (MP).
8. The ePCR’s written by RC and Z24 attendants lacked detail and the timing/ interventions performed did not accurately reflect what occurred at the case.
9. Three of the ALS paramedics involved in this case alleged, the Z24 attendant made a number of unprofessional comments and inappropriate clinical decisions at this case. This was identified during the interview process and in the incident reports. The alleged behavioural matters relating to the Z24 attendant have been referred to the Professional Misconduct Unit as per Executive Director of Emergency Operations.” 2
[21] The Cudini Report contained the following timeline and correlating information from the Zoll monitor (Zoll):
“20:37:00 – 000 call received.
20:37:40 – Riddles Creek (RC) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 2.1 km from location
20:37:46 – Hanging Rock (HR) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 17.4 km from location
20:37:54 – MICA 24 (Z24) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 29.5 km from location
20:39:53 – CPR in progress as per call taker 20:40:58 – AAV dispatched on case as per CSP
20:41:31 – RC arrive o/s
20:44:00 – RC at patient – Zoll monitor applied
20:45:04 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia, Heart Rate 30. CPR recommenced
20:45:38 – HEMs 1 dispatched as per AAV
20:47:13 – SAED “No Shock Advised”, ZOLL printed summary displays irregular junctional complexes and PAC, Heart Rate 30.
20:49:24 – SAED “No Shock Advised”, ZOLL printed summary displays asystole and PAC
20:51:34 – SAED “No Shock Advised”, ZOLL printed summary displays asystole
20:53:43 – SAED “No Shock Advised”, ZOLL printed summary displays asystole, PAC and a QRS complex with prolonged PR interval. Regular ventricular complexes evident under CPR.
20:55:53 – SAED “No Shock Advised”, ZOLL printed summary displays asystole, one ventricular narrow complex evident
20:56:41 – Z24 arrive o/s
20:57:03 – HEMs 1: ETA < 10 minutes
20:58:03 – SAED “No Shock Advised”, ZOLL printed summary displays asystole
20:59:51 – HEMs 1 cancelled
21:00:04 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia, Heart Rate 30, ETCO2 38 mmHg. CPR continued.
21:02:23 – SAED “No Shock Advised”, ZOLL printed summary displays asystole 21:04:33 – SAED “No Shock Advised”, ZOLL printed summary displays asystole. CPR recommenced, ETCO2 68 mmHg
21:06:43 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia transitioning to Sinus Rhythm with 1st degree AVNB transitioning to accelerated idoventricular rhythm, Heart Rate 96, ETCO2 80 mmHg. No CPR was being performed at this point. Nil palpable carotid or femoral pulses present.
21:08:00 – Resuscitation ceased
21:10:08 – Patient signal 83
21:24:17 – Z24 clear of case
21:37:39 – HR clear of case
21:54:59 – RC clear of case” 3
[22] The overall conclusion of the Cudini Report was as follows:
“This unfortunate case highlighted circumstances where significant emotion, cognitive overload / bias’s and unprofessional behaviour lead to poor communication, clinical decision making / judgement, loss of situational awareness and an ineffective team working environment.
The initial incorrect rhythm recognition and failure to rapidly address the patient’s airway obstruction may have further impacted on the likelihood of achieving ROSC. Once the patient’s obstruction was adequately removed and effective ventilation / oxygenation restored, significant improvements in skin colour and changes in ECG rhythm / ETCO2 were observed.
The patient did not receive the expected AV standard of minimum 30 minutes ACLS resuscitation. Furthermore, compelling evidence existed to continue resuscitation based on age, changes in skin colour, ECG rhythm and ETCO2 affording the patient and the patient’s family every opportunity to achieve ROSC.” 4
[23] On 30 November 2017 AV advised Ms Hay that she was placed on alternative duties effective that day due to concerns it had regarding her clinical practice and behavior associated with her clinical practice. It also advised her that a review process of her clinical performance would be undertaken. This review was undertaken by the Professional Conduct Unit (PCU).
[24] On 14 March 2018 AV advised Ms Hay in writing that:
• the PCU review process was concluded;
• allegations of misconduct concerning Ms Hay’s professional conduct during attendance at Lachlan’s Case had been made against her (Allegations); and
• an independent external Investigator (Investigator) had been engaged to conduct an investigation into the Allegations.
[25] The Allegations were as follows:
“Allegation 1
1. On 2 October 2017, when in attendance on a 15 year old male patient who had
attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you failed to take reasonable care for the health and safety of the patient as follows:
1.1 You directed the treating paramedics to cease resuscitation on the patient in circumstances where:
(a) you were aware that there were 'compelling reasons' to continue resuscitation, namely:
(i) the patient was under the age of 18 years; and
(ii) 'signs of life', including an accelerated idioventricular rhythm, heart rate 96, ETC02 80 mmHg and significant improved skin colour
(b) you were aware that resuscitation by Ambulance Victoria had been undertaken for approximately 23 minutes and the minimum expected timeframe for resuscitation is 30 minutes prior to cessation and/or it was premature to cease resuscitation.
Allegation 2
8. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present you were the scene leader, you failed to take reasonable care for the health and safety of the patient by unreasonably dismissing advice regarding 'compelling reasons' to continue resuscitation which were brought to your attention by the Paramedic Educator on the scene, Mr Alan Snow, as follows:
8.1 Shortly after you arrived on the scene at 20:59, the ALS Paramedic Educator on scene, Mr Alan Snow, advised you that there was some spontaneous cardiac activity. You dismissed Mr Snow's advice and said words to the following effect 'That is artefact'. Mr Snow replied that it was not artefact because he could see clear complexes.
8.2 At or around 21:00, Mr Snow advised you that there was a clear narrow complex rhythm. You dismissed Mr Snow's advice and said words to the following effect: 'The rhythm is adrenalin driven'. You instructed Kelly Mercer (ALS Paramedic Clinical Instructor) not to give any more adrenalin to the patient.
8.3 After returning to the patient following a conversation with the patient's parents, you stated that the family had requested that resuscitation cease. Mr Snow again advised you of changes in the patient's ECG rhythm/ETC02, in particular, that there was a clear rhythm. You dismissed Mr Snow's advice and replied 'I am not going to fuck with the family.'
Allegation 3
1. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you misled the patient's family as to the utility of continuing with resuscitation on the patient, where there were 'compelling reasons' to continue resuscitation and you had been on scene for approximately only 3 minutes.
Allegation 4
1. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you made at least two unprofessional and disrespectful comments regarding the patient and the patient's family in your communications with other attending paramedics as follows:
1.1 you described attempts at continued resuscitation on the patient as 'flogging a dead horse'; and
1.2 when you were advised of clinical changes to the patient you responded by saying 'I am not going to fuck with the family'.” 5
[26] If substantiated, the Allegations were stated to be variously in breach of the Ambulance Victoria Code of Conduct 2017, Clinical Practice Guideline A0203 Withholding or Ceasing Resuscitation (CPG A0203) and certain of AV’s policies.
[27] On that day, AV further advised Ms Hay in writing that she was suspended on full pay, effective immediately, while the Allegations were investigated.
[28] On or around 23 March 2019, the Investigator commenced investigations into the Allegations (Investigation).
[29] On 15 June 2018 Ms Hay filed a Form F10 application for the Commission to deal with a dispute pursuant to the dispute settlement procedure contained in the Agreement concerning her grievance with the disciplinary procedure (First Dispute Application). The First Dispute Application was resolved following a conference before the Commission on 25 June 2018.
[30] On 28 June 2018 Ms Hay, together with her legal representative, attended an interview with the Investigator to provide her response to the Allegations. The interview was recorded and transcribed. Ms Hay was subsequently provided with a transcript of her interview with the Investigator (Interview Transcript) and on 17 July 2018 Ms Hay confirmed to the Investigator that she had read the Interview Transcript and that it was accurate. She indicated this by signing each page of the Interview Transcript.
[31] On or about 30 August 2018, the Investigator concluded the Investigation and provided AV with an investigation report.
[32] On 13 September 2018, the PCU created a briefing note that informed Mr Mark Rogers, Chief Operating Officer of AV, as delegate of the Chief Executive Officer, of the Investigation findings. That briefing note recommended that disciplinary action, in the form of termination of employment, be taken against Ms Hay for serious and wilful misconduct in accordance with clause 60.5 of the Agreement.
[33] On 24 September 2018, Mr Rogers advised Ms Hay in writing that:
• the Investigator had found Allegations 1 and 3 substantiated, Allegation 2 partially substantiated and Allegation 4 not substantiated;
• the Investigator had found the substantiated conduct in Allegations 1, 2 and 3 constituted a breach of CPG A0203 and AV’s Professional Conduct Policy and Procedure;
• the Investigator had found the substantiated conduct in Allegations 1 and 3 constituted a breach of Part 3.1 of AV’s Code of Conduct;
• the Investigator had found the substantiated conduct in Allegation 2 constituted a breach of Part 3.1 and Part 4.1 of AV’s Code of Conduct;
• AV accepted the Investigator’s findings;
• AV considered that Ms Hay had engaged in serious and wilful misconduct with the meaning of clause 60.5 of the Agreement;
• the proposed disciplinary action was termination of employment; and
• AV required Ms Hay to show cause within 10 days as to why the proposed disciplinary action ought not be taken.
[34] On 6 October 2018, Ms Hay provided her show cause response and filed a second Form F10 for the Commission to deal with a dispute pursuant to the dispute settlement procedure contained in the Agreement (Second Dispute Application).
[35] On 7 November 2018, the parties attended a conference before the Commission in relation to the Second Dispute Application. The Second Dispute Application did not resolve.
[36] On 17 January 2019, AV filed a Form F1 Application for an order that the Second Dispute Application be dismissed pursuant to section 587(1)(c) of the Act (AV's section 587 Application).
[37] On 1 February 2019, Ms Hay filed a third Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure.
[38] On 7 February 2019, AV determined that Ms Hay was to be dismissed for serious and wilful misconduct in employment (Dismissal) and foreshadowed that a letter would be issued to Ms Hay communicating the Dismissal following the Commission's determination of AV's section 587 Application.
[39] On 12 February 2019, Ms Hay filed a fourth Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure.
[40] On 19 February 2019, the Commission issued a decision in AV's section 587 Application, in which it granted AV's section 587 Application and dismissed the Second Dispute Application, and Ms Hay’s 1 February 2019 and 12 February 2019 dispute applications.
[41] On 20 February 2019, AV invited Ms Hay to attend a meeting to discuss the disciplinary outcome for the Allegations.
[42] On 20 February 2019, Ms Hay, through Mr Hull, notified AV that she wished to be informed of the disciplinary outcome by way of letter via email rather than by attending a meeting with AV.
[43] On 21 February 2019, AV provided Ms Hay with a letter of termination, confirming that she had been summarily dismissed from her employment for serious and wilful misconduct in accordance with clause 60.5 of the Agreement. 6
Evidence
[44] I make some preliminary remarks about the evidence.
[45] Firstly, I found Ms Hay to be, generally, an unimpressive witness. Her evidence lacked spontaneity and appeared overly considered, she was reluctant to make concessions where they appeared warranted and appeared to give her evidence with a view to its strategic and forensic advantage. Ms Hay’s evidence as to the events of 2 October 2017 is largely inconsistent with the evidence of the other Paramedics who attended the scene. Where there is a contest on the evidence as between particular witnesses (in particular, Ms Hay and Mr Snow), I will explain below whose evidence I prefer and why.
[46] Secondly, it should be noted that the direct evidence of AV’s attending Paramedic witnesses, other than Ms Pemberton, has four primary sources; the incident report each provided to Mr Cudini as part of the clinical case review, their record of interview produced as part of the Investigation, their witness statement prepared as part of this proceeding and their oral evidence before the Commission. Ms Hay contended that the accounts provided by AV’s Paramedic witnesses were not consistent and had been embellished over time. AV rejected this contention. As a general statement, I do not find the various statements made by the Paramedic witnesses to be inconsistent. I consider the key elements of their various statements to have remained largely consistent, although I accept that their statements prepared for this proceeding are considerably more fulsome than either their incident reports or their record of interview with the Investigator and contain additional matters. I find nothing unusual in this or the fact that the statements are not in the same form, given the differing purposes for which they were produced and, indeed, the differing manner in which they were produced. However, I will address certain inconsistencies in the evidence of the Paramedic witnesses in the course of setting out my factual findings in these reasons.
[47] Similarly, Ms Hay’s direct evidence also comprised multiple sources; the Investigation Transcript, her witness statement prepared as part of this proceeding and her oral evidence before the Commission. Ms Hay contends that her version of events “unlike those of most of her colleagues” has remained consistent. AV rejects this and contends that in certain important aspects Ms Hay’s evidence is inconsistent. In the course of setting out my factual findings in these reasons I will address certain inconsistencies in Ms Hay’s evidence.
[48] Thirdly, in addition to the above four primary sources, Ms Pemberton’s evidence also comprised notes which she says are her recollection of the events of 2 October 2017. She says she prepared the notes on her home computer on or about 3 October 2017 (JP Notes). She says she prepared the JP Notes because of her concerns regarding AV’s treatment of Lachlan. AV submits that the JP Notes are an accurate and truthful detailed record of aspects of the clinical treatment Lachlan received on the night. I address the JP Notes in the course of setting out my factual findings in these reasons.
[49] Fourthly, AV called Mr Cudini, Mr Stephenson and Professor Bernard, all of whom are employees of AV. Professor Bernard is the Medical Director of AV and has been employed by AV for 26 years. Professor Bernard is a registered medical practitioner, holds a Doctor of Medicine and is a Fellow of the Australasian College of Emergency Medicine, the Australian and New Zealand College of Intensive Care Medicine and the American College of Critical Care Medicine. 7 He is a Senior Specialist in Intensive Care Medicine at the Alfred Hospital, the Director of Intensive Care at Knox Private Hospital and an Adjunct Professor with the Department of Epidemiology and Preventive Medicine at Monash University.8 Mr Stephenson is the Executive Director Clinical Operations for AV, responsible for AV’s road and air operations across Victoria. All AV Paramedics report ultimately to Mr Stephenson in relation to service delivery.9 He has been employed by AV for approximately 22 years.10 Mr Stephenson is a registered MICA Paramedic and continues to practise as one.11 He is also an Adjunct Associate Professor in the Department of Epidemiology and Preventive Medicine at Monash University and an Adjunct Associate Professor in the Department of Community Emergency Heath and Paramedic Practice at Monash University.12 Mr Cudini has been employed by AV for approximately 13 years and is currently employed in the role of Clinical Support Officer, Metropolitan West Region.13 He is a registered and practising MICA Paramedic and has previously held the roles of ALS Paramedic/Clinical Instructor, MICA Paramedic/Clinical Instructor and MICA Paramedic Educator.14 Mr Cudini, Mr Stephenson and Professor Bernard all gave evidence as to what could be drawn as to Lachlan’s condition from the information available from the Zoll. They also all gave evidence as to the standard of clinical care they say Ms Hay ought to have provided Lachlan on the evening of 2 October 2017 as the scene leader and a MICA Paramedic. Mr Hull submitted that this evidence was opinion evidence, although he ultimately did not object to it being received by the Commission.15 Mr Hull also submitted that whilst he did not object to the evidence of these three witnesses being treated as experts, the Commission ought take into account the fact that they were called by a party and did not give any undertaking that their duty as an expert is to the Commission.16 Firstly, whilst AV called Mr Cudini, Mr Stephenson and Professor Bernard because of their specialist knowledge and expertise, which I accept, they were not called by AV as expert witnesses. Secondly, although the Commission is not bound by the rules of evidence,17 it tends to follow them.18 I consider that had the Evidence Act 1995 (Cth) applied, the evidence of Mr Cudini, Mr Stephenson and Professor Bernard would fall within the specialist knowledge exception to the opinion rule. I have had regard to their evidence where I consider it relevant.
[50] Fifthly, it is uncontentious that the Zoll used was that of Crew 1 and was taken with that crew when it left the scene on that evening. Further, it is also uncontentious that Ms Hay sought production of the full Zoll printout, being the print out of all the information recorded by the Zoll during the entire period of its operation at Lachlan’s Case (Full ECG) and that AV did not produce this, on the basis that it could not be located. Ms Hay submits that it “beggars belief” that AV lost a copy of the Full ECG. 19 She submits that this is a critical document of fundamental importance and that the Full ECG is the only clinical record that can provide a complete and accurate analysis of an arrested patient’s cardiac and related activity.20 AV relies upon the ECG Treatment Summary Report and eight ECG strips attached to Mr Cudini’s witness statement.21 I deal with this issue in the course of my reasons.
[51] Sixthly, Ms Hay called Ms Cecilia Wilmot Griffiths and was given leave to call Dr Belinda Flanagan, as an expert witness. AV objected to the entirety of both Ms Wilmot Griffiths’ and Dr Flanagan’s evidence being admitted into evidence. I determined to receive both of their evidence.
[52] Ms Wilmot Griffiths is a MICA Paramedic and work colleague of Ms Hay. Her evidence went to her experience of working with Ms Hay and Ms Hay’s character. Mr Hull agreed with this summation of Ms Wilmot Griffiths’ evidence. 22 Ms Wilmot Griffiths was not an attending Paramedic on 2 October 2017. She gave no direct evidence as to the events of that evening or any of the matters that followed from it. She gave no evidence as to clinical matters nor the standards of behaviour of a MICA Paramedic. Accordingly, I have not relied upon Ms Wilmot Griffiths evidence in reaching my findings of fact.
[53] For the following reasons I have accorded Dr Flanagan’s evidence little weight. Firstly, I consider that Dr Flanagan lacks the relevant expertise and knowledge to assist the Commission. Dr Flanagan is a Registered Nurse, Midwife and Advanced Care Paramedic. 23 She is currently employed as an academic in the Faculty of Health Science, Education and Engineering at the University of the Sunshine Coast (USC).24 She holds a Masters of Midwifery and a Doctor of Philosophy.25 The USC website26 and Dr Flanagan’s curriculum vitae27 indicate that her professional emphasis is Paramedic obstetrics and neo-natal care. Her PhD involved an epidemiological study of unplanned birth before arrival at hospital while in Paramedic care and an examination of factors that affect intra-partum care from a mother’s and a Paramedic’s perspective.28 As set out above, her Masters qualification is in Midwifery.29 Her conference presentations, almost exclusively, focus on the subject of women birthing in paramedic care.30 Under cross-examination Dr Flanagan agreed that if it were that she had a specialist expertise, it was in the area of maternal and/or neo-natal emergency paramedicine.31 Accordingly, Dr Flanagan’s area of specific expertise is in maternal and neo-natal emergency paramedicine. It is readily apparent that matters of maternal and neo-natal emergency paramedicine are not relevant to the matters in issue in these proceedings. Further, Dr Flanagan does not hold a MICA Paramedic qualification.32 She said she had an understanding of the MICA training in Victoria33 but she had not researched the training or qualification undertaken by a MICA Paramedic nor their scope of practice.34 She is not trained as a Critical Care Paramedic in Queensland.35 That qualification is a higher paramedic qualification than that of an Advanced Care Paramedic in Queensland.36 She was not sure of the qualifications of an ALS Paramedic in Victoria and had not conducted any research into the qualifications and training of ALS Paramedics in Victoria.37 She was unsure as to the scope of practice of an ALS Paramedic.38 She was unable to say whether an Advanced Care Paramedic was to be equated with an ALS Paramedic in Victoria.39 Accordingly, whilst Dr Flanagan is an Advanced Care Paramedic in Queensland and may be able to give evidence as to the clinical practice and conduct of such Paramedics, Dr Flanagan does not have any particular knowledge of the training, qualifications or scope of practice of either a MICA Paramedic or an ALS Paramedic in Victoria. In circumstances where Dr Flanagan does not have any particular knowledge as to these matters, most particularly training and scope of practice, it is difficult to see how her evidence, even if limited to scene management, could be of assistance to the Commission. Dr Flanagan declined to comment on clinical matters in relation to Lachlan’s Case, on the basis that she understood the matter to be the subject of a Coronial Inquiry40 and, further, that such matters were outside her scope of expertise.41
[54] Secondly, I do not consider that Dr Flanagan could properly comment on the expectations of conduct of a MICA Paramedic at the scene in Lachlan’s Case in the absence of knowledge of a MICA Paramedic’s training and scope of practice. Although Dr Flanagan agreed that comment on clinical management at Lachlan’s Case were outside her scope of expertise, 42 she disagreed that she was not sufficiently qualified to comment on the management of a scene and cardiac arrest.43 She gave evidence that she had attended 50 – 60 cardiac arrests during her 20 years as a Paramedic where she had undertaken “some active resuscitation”.44 Under cross-examination she agreed that management at the scene involved both clinical and non-clinical behaviour by MICA Paramedics.45 Her evidence was that she could comment on the expectations of conduct at a scene by a MICA Paramedic with reference to the expectations of conduct of a Critical Care Paramedic.46 Under cross-examination she accepted that in order to conduct this comparison she would need to understand the training and expertise of a MICA Paramedic in Victoria.47 She said that she did not hold a MICA Paramedic qualification, and that she was not an expert in the training taken by a MICA Paramedic in Victoria.48 She agreed that she did not research the training or qualification undertaken by a MICA Paramedic or their scope of practice.49 I accept that Dr Flanagan may be able to provide comment as to the conduct of an Advanced Care Paramedic at the scene of a cardiac arrest. However, in my view, in order to make any comment of weight as to the conduct of a MICA Paramedic in Victoria at a scene based on the expectations of a Critical Care Paramedic in Queensland in the same circumstances, I consider that Dr Flanagan would need to understand the training and expertise of a MICA Paramedic. Further, Dr Flanagan agreed this would be required.50 On the basis of her own evidence she does not possess this knowledge. Further, there is no other evidence before the Commission upon which it could be concluded that a MICA Paramedic in Victoria is to be equated with a Critical Care Paramedic in Queensland. Accordingly, I accord little weight to Dr Flanagan’s evidence as to scene management and conduct expected of a MICA Paramedic at the scene.
[55] Seventhly, as an administrative, quasi-judicial tribunal, the Commission is required to take into account relevant considerations, and to ignore irrelevant considerations. Relevant considerations are found in “material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.” 51 If the material has probative value the weight to be attached to it is a matter for the decision-maker. The Commission should consider and carefully weigh all relevant material, including circumstantial evidence, and where appropriate draw reasonable inferences.
[56] Finally, as already set out above, the Commission is not bound by the rules of evidence, 52 although it tends to follow them.53 Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just.54
Was the dismissal harsh, unjust or unreasonable?
[57] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[58] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 55
[59] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Ms Hay’s capacity or conduct?
[60] Section 387(a) of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct. The principles that are relevant to the consideration of this concept are well-established. A valid reason is one that is ‘sound, defensible and well-founded.’ 56 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in its position.57 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good reason and a substantiated reason.
[61] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. 58 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.59
[62] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, 60 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained”61 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”62 or “circumstances pointing with a wavering finger to an affirmative conclusion”.63 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.64
[63] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 65 In Greyhound Racing Authority,66Santow JA noted:
“… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].” 67
[64] The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.” 68
[65] It was agreed by the parties that the allegations made against Ms Hay are of the utmost seriousness and that the Commission requires a high degree of satisfaction that the alleged misconduct engaged in had occurred. 69 It was also agreed that the seriousness of the Allegations made against Ms Hay affects the application of Briginshaw.
[66] Ms Hay’s employment was terminated pursuant to clause 60.5 of the Agreement. Clause 60 provides as follows:
“60. DISCIPLINARY PROCESS
60.1 Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be oral and will be recorded on the employee's personal file.
60.2 If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.
60.3 If the problem continues the employee will be seen again by management. If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant Union.
60.4 In the event of the matter recurring, then the employee may be terminated. No dismissals are to take place without the authority of senior management.
60.5 Dismissal of an employee may still occur for acts of "serious and wilful misconduct".
60.6 If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Commission for resolution. Such resolution shall be accepted by the parties as final.
60.7 If after any warning, a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the employee's personal file.” 70
[67] I note that the Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. AV has advanced several valid reasons for the termination of Ms Hay’s employment. I shall now examine the reasons advanced by AV to determine whether I am actually persuaded that Ms Hay engaged in some or all of the relevant conduct, and whether any such conduct constitutes a valid reason.
Factual findings
Obligations of Ms Hay as MICA Paramedic
[68] Before turning to the events of 2 October 2017, I shall first consider the obligations imposed upon Ms Hay as a MICA Paramedic with AV. Ms Hay submits that AV have failed to identify the standards of professional conduct or the expectations against which she is to be judged. 71 She submits that a breach of the AV Code of Conduct does not establish a breach of professional misconduct.72 Ms Hay submits that other than in respect of the Clinical Practice Guidelines, AV has not made clear what expectations of clinical conduct Ms Hay has breached or their reasonableness. She further submits that the proper standard against which she is to be judged is what might reasonably and properly be required of a person in her position. She says the answer to that is found in the expert report and testimony of Dr Flanagan.73
[69] AV contends that the expectations of Ms Hay as a MICA Paramedic are to be found in the Position Description and the AV Code of Conduct.
[70] The Position Description for an AV MICA Paramedic 74 (Position Description) includes the following:
a) Primary Objective: provide pre-hospital care and treatment for sick and injured people through attempting to stabilize and/or improve the patient condition;
b) Competencies:
i. Focusing on Safety: Identifies and corrects conditions that affect patient/self and colleague safety;
ii. Identifying Issues: Identifies and understands risks, issues, problems and opportunities; makes timely decisions; involves others as required. Considers the impact of decisions on patient outcomes;
iii. Patient and Customer focus: Takes responsibility for patient and customer satisfaction and clinical outcomes;
iv. Professionalism: Adopts a principled and professional approach to work and in dealing with patients, colleagues, teams and stakeholders;
v. Optimism and resilience: Shows persistence and resilience to achieve work goals;
c) Key Deliverables:
i. Customer/Patient: Provide comprehensive Ambulance patient care in accordance with AV’s Operational Procedures, Clinical Practice Guidelines and Clinical Work Instructions;
ii. Process Improvement: Comply with all AV policies and procedures as well as legislative and legal requirements;
iii. People: Interact effectively as part of the ambulance crew within own ambulance team, with other ambulance teams and with other emergency service teams to ensure delivery of patient care is optimized;
d) Qualifications and experience: Competent standard of patient emergency care and clinical knowledge to work as part of an emergency ambulance crew. 75
[71] The AV Code of Conduct 76 applies to all staff and all categories of employees of AV.77 The AV Code of Conduct is the organisational policy that provides guidance as to the standard of behavior expected of AV employees.78
[72] The AV Code of Conduct contains the following provisions under section 3 entitled “Our Values”: 79
“3.1 Being respectful
…
We treat our colleagues, patients, families and members of the community with courtesy, respect, dignity and compassion.
…
3.3 Being accountable
We trust and empower each other to deliver on our commitments, take ownership for our work and are answerable for our actions. We hold ourselves and each other accountable for our behaviours.
Examples of acceptable behaviours that reinforce our value of Being Accountable
…
We take responsibility for when things go wrong and learn from the experience.”
[73] The AV Code of Conduct contains the following provisions under section 4 entitled “Our Professional Conduct and Ethical Behaviour”: 80
“4.2 Treating others with dignity and respect, embracing diversity and creating a harassment free workplace
…
It is your responsibility to:
Treat all people you deal with through your work at AV with courtesy and respect at all times”
[74] Ms Hay was cross-examined on provisions of the Position Description. 81 Ms Hay accepted that the provisions of the Position Description set out above, other than those in relation to people and qualifications and experience, which were not expressly put to her, were requirements of her in her role as a MICA Paramedic. Ms Hay was also cross-examined on the AV Code of Conduct and agreed that the provisions of the AV Code of Conduct she was taken to generally reflected what was required of her as a MICA Paramedic.82 She agreed that she had been provided with a copy of the AV Code of Conduct,83 she understood it84 and she was required to comply with it.85
[75] Accordingly, I find that the Position Description and the AV Code of Conduct applied to Ms Hay’s employment as a MICA Paramedic with AV. I accept that the Code sets out standards of conduct or behaviours required of Ms Hay as a MICA Paramedic. I also accept that the Position Description sets out the core competencies and deliverables of a MICA Paramedic. However, it does by way of general statement and obligation and does not enunciate what specifically is required to discharge those competencies and deliverables. I consider nothing unusual in this and for it to be entirely consistent with the purpose of a position description. I consider there to be a degree of unreality to Ms Hay’s submission that as a Paramedic of approximately 20 years and a long serving MICA Paramedic she is unaware of the requirements or expectations of her as a MICA Paramedic and scene leader on 2 October 2017. However, I consider that the answer to what was required of Ms Hay to discharge the competencies and deliverables of a MICA Paramedic and scene leader is to be found in the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard. I prefer their evidence over that of Dr Flanagan for the reasons set out earlier.
Events of 2 October 2017 prior to arrival of MICA 24
[76] As set out above, Crew 1, being Ms Mercer and Ms Brennan, were dispatched first. Before arriving at the scene, Crew 1 were advised that the patient had hanged himself but had been cut down and was in cardiac arrest. Crew 1 were also informed that the patient was young. 86
[77] Upon arrival at the scene, Lachlan was lying on his back, outside in a patio area where he had been cut down by his family. 87 The area was poorly lit and light was being provided by a bystander holding a torch.88 Mr Jorgensen and a neighbour were performing external cardiac compressions (ECC).89 Lachlan presented in cardiac arrest, with no spontaneous respiratory effort, no palpable carotid pulse, cool, cyanotic, temperature of 34.9°C and with an obvious ligature mark around his neck.90 Ms Mercer went to Lachlan’s right hand side to attach the Zoll and set up an intravenous line. Ms Brennan went to Lachlan’s airway.91 Mr Jorgensen and others continued ECC.92 Ms Mercer attached the Zoll, measured Lachlan’s temperature and checked for a carotid pulse.93 Ms Mercer then gave a sitrep (a status update to other attending crews), gained IV access and administered adrenaline.94 The first attending crew identified Lachlan as being asystole with 10 – 20 minutes cardiac downtime.95 It is uncontested that the Cudini Report established that Lachlan was not in asystole when Crew 1 arrived and that Lachlan’s cardiac rhythm was, in fact, sinus bradycardia. It is also uncontested that in the sitrep given by Ms Mercer to other attending crews she said that Lachlan’s heart rhythm was asystole. The second crew also identified Lachlan as being in asystole on their arrival.96 Ms Brennan was having difficulty clearing Lachlan’s airway due to vomit in the airway. Lachlan was rolled on to his side to manually clear his airway and Ms Brennan also used suction to clear the airway. Ms Brennan was not able to open Lachlan’s jaw to insert a laryngeal mask airway (LMA) and subsequently ventilated Lachlan using a bag valve mask and oropharyngeal airway.97 During this time Mrs Jorgensen (Lachlan’s mother) advised Crew 1 that she had seen Lachlan walk onto the patio area at around 20.17, about 20 minutes before the 000 call was made. 98
[78] Upon the arrival of Crew 2, being Mr Snow and Ms Pemberton, Ms Mercer advised them that the cardiac downtime was about 20 minutes, Lachlan had been in asystole when Crew 1 arrived and was cold. 99 Asystole was present on the next pulse check.100 Mr Snow took over the role of scene leader and determined to move Lachlan into the adjacent garage where the lighting was better.101 Mr Snow then went to Lachlan’s head. Lachlan was cyanosed, being a blueish-black colour in the face and mucous membranes. There was vomit overflowing from his mouth and nostrils.102 Mr Snow suctioned approximately 280 ml of vomit from Lachlan’s airway and swept and suctioned solid matter from the back of Lachlan’s throat.103 Mr Snow used forceps to remove pieces of solid matter from Lachlan’s vocal chords.104 Mr Snow inserted an iGel, connected capnography and started ventilating Lachlan.105 Mr Snow and Ms Pemberton continued to manage Lachlan’s airway and ECC. Following the airway interventions administered by Crew 2, Lachlan’s colour changed from blue/black to light pink,106 his ETCO2 levels were increasing107 and there were changes to Lachlan’s ECG activity.108
[79] In her final written closing submissions Ms Hay says that the above indicates that by the time that the iGel was inserted, Lachlan had been without oxygen for at least 20 minutes, from 20:36 to 20:56, but that it could have been significantly longer. That Lachlan may have been without oxygen for a significantly longer period is supported, she says, by the evidence of Ms Mercer and Ms Brennan that on arrival Lachlan was cyanosed and cool, with a temperature of 34.9°C, which she says is significantly below normal. 109 That submission must be rejected. Firstly, no expert or other evidence was led by Ms Hay as to Lachlan’s actual temperature or body temperature more generally. Secondly, Mr Snow’s evidence was that a temperature of 34.9°C was 1.1°C below normal.110 Ms Mercer’s evidence was that there is a normal range for body temperature111 and that 34.9°C was “OK”112 and “wasn’t terrible”.113 Further, her evidence was that the resuscitation protocol did not change until the patient’s temperature was below 30°C.114 Accordingly, there is no evidence to support the assertion that a temperature of 34.9°C is “significantly below normal” such that it might be concluded on that basis that Lachlan had been without oxygen for a longer period of time. Thirdly, Ms Hay submitted that the “Glaister equation”, which she submits is a formula for calculating the rate at which a human body cools, indicates a period of 2.4 hours since arrest.115 Ms Hay led no expert or other evidence as to the Glaister equation or the effect of cooling on the human body. Accordingly, there is no evidence before the Commission upon which it might be concluded on the basis of the Glaister equation that Lachlan may have been without oxygen for a significantly longer time than 20 minutes.
Arrival of MICA 24
[80] At 20.56.41, soon after the airway interventions were completed, the MICA 24 crew arrived at the scene and were with Lachlan at 20.59.39. Much of what then occurred on the evening of 2 October 2019 is in dispute. However, it is uncontested that upon arrival at the scene Ms Hay was the most experienced/senior Paramedic at the scene 116 and the scene leader.117
Role of scene leader
[81] Mr Wakeling’s evidence was that as the scene leader and most senior Paramedic on the scene Ms Hay was responsible for managing the scene. She was responsible for allocating tasks and the clinical care of the patient. 118 The MICA Paramedics on scene dictate the patient’s management, assessment119 and care.120 One of the senior MICA Paramedics will take the lead, they oversee and dictate patient care and make decisions.121 As scene leader Ms Hay had a clinical duty to continually ascertain the objective data during Lachlan’s treatment including heart rhythm, heart rate, ETCO2 levels and pigmentation data (as did all attending Paramedics).122 Mr Wakeling’s evidence was that the “buck rests” with the MICA Paramedic in charge of the scene.123 In cross-examination Mr Wakeling’s evidence was that in decision making, all attending Paramedics have a say but the scene leader generally takes account of all the information and dictates the decision making and patient care.124 The role of scene leader was a combination of both a leadership role and also that of being “the boss”.125
[82] Mr Cudini agreed with Mr Wakeling’s evidence that MICA Paramedics make the final decisions, dictate the patient’s management and are ultimately responsible for the patient’s management and care. His evidence was that responsibility was to be exercised in an environment where others felt able to speak up. 126
[83] Mr Stephenson’s evidence was that as the senior MICA Paramedic and scene leader Ms Hay was ultimately responsible for the care of the patient. He said that it was very well entrenched practice that the senior Paramedic is ultimately accountable. The following exchange occurred between the Bench and Mr Stephenson:
“Is this documented somewhere?---In some instances it is, but by and large no, it’s custom and practice. And as I say, it’s entrenched. It’s taught. When you are being trained as a MICA Paramedic, scene leadership and managing other paramedics at the scene is very much a focus of what we do. It’s part of our position description and, as I say, there isn’t a paramedic in Victoria who would not understand that the senior MICA Paramedic is not the person responsible.” 127
[84] His evidence was that Paramedics have always been measured and held to account in that way. There has never been a question about it. 128 The senior Paramedic “carries the can” for the decisions made at a scene.129 They assume that responsibility daily.130 He said that whilst all attending Paramedics have a responsibility to do their job properly there is always a leader. This is necessary for the proper functioning of the case and for best outcomes.131
[85] Professor Bernard’s evidence was that as scene leader and the senior clinician Ms Hay was required to take control of the scene. 132
[86] Ms Hay’s evidence was that it is standard practice for the scene leader to direct what is happening and have overall control of the scene. 133 However, she said there isn’t just one person who is in charge of everything and who dictates what occurs. A scene leader just makes clear the lines of communication.134
[87] Ms Hay does not contest that on 2 October 2017 as the most senior MICA Paramedic on scene she took a leadership role. 135 She submits that this operated in accordance with a co-operative collegiate model. She submits that nowhere is it documented that the scene leader is responsible for what occurs at a scene136 or the manner and style of leadership that is required.137 She submits that the evidence was that apart from arrangements expressly agreed between members of a crew, scene leadership was assumed according to custom and practice where superior skills and greater service were recognized and respected.
[88] Mr Wakeling, Mr Cudini and Mr Stephenson all accept that MICA leadership at a scene operates within a co-operative collegiate model. Ms Hay accepts that she was the scene leader and that as the scene leader it was her role to direct Lachlan’s treatment and care. She also accepts that as scene leader she had overall control of the scene. As set out earlier, she also accepts that the Position Description requires that she take responsibility for patient and customer satisfaction and clinical outcomes. 138 However, it is clear that she contests that as scene leader she dictated, and was ultimately responsible for, Lachlan’s management and care and the decisions made at the scene in relation to that care. On Ms Hay’s evidence, the role of scene leader is limited to making clear the lines of communication.
[89] For the reasons that follow, I reject Ms Hay’s evidence on this point. Firstly, I have already expressed my view that Ms Hay was, generally, in my opinion, an unimpressive witness and was reluctant to make concessions where they appeared warranted. This was particularly so in relation to whether she was the scene leader and the most experienced MICA Paramedic at the scene on 2 October 2017. 139 Secondly, the evidence of Mr Wakeling, Mr Cudini and Mr Stephenson is consistent. All say that the scene leader dictates care and management, is in control of the scene and is ultimately responsible for the patient’s care. The evidence of Professor Bernard is also that Ms Hay as the senior MICA Paramedic was required to take control of the scene and dictate care. I found Mr Wakeling to be a credible witness. He took responsibility for his actions on 2 October 2017 and admits they were wrong. Mr Stephenson was an extremely compelling witness who gave direct, clear, unwavering and definitive evidence. Professor Bernard and Mr Cudini were credible witnesses who gave forthright and clear evidence. Further, all four, but most particularly Mr Stephenson and Professor Bernard, have extensive experience and expertise. Thirdly, Mr Wakeling, Mr Cudini and Mr Stephenson are all practicing MICA Paramedics. Their evidence as to the responsibilities and accountabilities of a MICA Paramedic scene leader was clear and unambiguous. Fourthly, in circumstances where there are a number of attending Paramedics at a scene it seems inherently likely that someone assumes a leadership role and takes control of the scene. I consider it entirely unsurprising that with that leadership role comes leadership responsibility and accountability, notwithstanding that the leadership operates within a co-operative collegiate model. Accordingly, I accept the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard over that of Ms Hay as to the responsibilities and accountabilities of a MICA Paramedic scene leader. I accept the submission that there is no documented evidence of the specific obligations of a MICA Paramedic scene leader. In my view the Position Description sets out the general obligations of all MICA Paramedics. However, given the evidence of Mr Wakeling, Mr Cudini and Mr Stephenson I do not consider that the absence of documentation indicates either an absence of obligation or a lack of clarity or knowledge of what the requirements and accountabilities of a MICA scene leader are.
[90] I therefore find that Ms Hay assumed leadership of the scene on 2 October 2017. I find that although this operated within a co-operative collegiate model, as the MICA Paramedic scene leader Ms Hay was responsible and accountable for managing the scene and directing Lachlan’s care. I find that as the scene leader she was responsible for the decisions made at the scene.
Handover to Ms Hay
[91] It is uncontested that upon arrival Mr Wakeling went to Lachlan’s head to manage his airway and ventilation, while Ms Hay took a handover from Ms Mercer. Ms Mercer’s evidence is that she informed Ms Hay that Lachlan had been in asystole when Crew 1 arrived, and had a downtime of around 20 minutes.140 Mr Snow’s evidence was that Ms Mercer also told Ms Hay that Lachlan had been cold and blue.141 Ms Mercer in her evidence-in-chief stated that in the handover she also informed Ms Hay that there had been a difficult airway but an advanced airway had now been achieved.142 However, under cross-examination she conceded that she had no specific recollection of telling Ms Hay this. 143 Mr Snow also gave evidence that he did not recall Ms Mercer providing this information to Ms Hay in the handover and, as such, he then added what Crew 2 had done.144 Mr Snow gave evidence that he also said aloud that Lachlan was “pinking up” and had vomited and further that Lachlan had had a soiled airway and a copious amount of vomit had been suctioned.145 He says he pointed this out to MICA 24 when they arrived.146 Under cross-examination Mr Snow’s evidence was that he did not specifically direct these comments to Ms Hay.147 However, his evidence was that they were said aloud and Ms Hay was in very close proximity to him.148 Mr Snow’s evidence in cross-examination was also that he told the whole scene that Lachlan’s airway had been cleared and he pointed to the suction bottle which was full of vomit.149 Mr Snow’s evidence was that suction equipment and the evidence of ventilation related activities was conspicuous and overt.150 Further, he denied that evidence of airway problems had been hidden.151 Mr Snow agreed in cross-examination that in the incident report he prepared for the Cudini Report he stated he did not recall the particulars of the handover152 and, further, that the handover was not included in his record of interview prepared by the Investigator but details of the handover were in his statement before the Commission.153 In his incident report Mr Snow says “I do not recall the handover particulars of the case that were provided to Louise by Kelly or others.” Mr Snow’s evidence was that the question he was responding to in the incident report was in relation to whether Ms Mercer informed Ms Hay at the handover about the airway difficulties Crew 1 had encountered.154 As to his record of interview in which he states “Kelly did a brief handover to Louise and Jarrod took over the airway”, his evidence was that it was written by the Investigator based on their interview, much of which went to assisting the Investigator to understand the equipment used at the scene and medical terminology, and was then provided to him to confirm and sign.155 His evidence under cross-examination as to the additional matters regarding the handover included in his witness statement was as follows:
“Mr Snow, did anyone require – did anyone propose to you that you make the further elaboration that is in your witness statement?
Nobody at all. My first statement was I didn't know the extras. I don't think any discussion was provided by the first crew as to explain their inability to clear the airway. I have always been across that Kelly provided the handover she did. It was the same handover I received. I just have expressed what that was to me. That's the only bit I know. That hasn't changed throughout.” 156
[92] Mr Snow gave evidence that the ePCR he completed for Lachlan’s Case was very basic as he didn’t have any of the data from the Zoll to reference. 157 Under cross-examination Mr Snow agreed that the ePCR completed by him on behalf of Crew 2 at the conclusion of Lachlan’s Case did not include any notation regarding any clinical interventions undertaken by Crew 2,158 including no notation of airway intervention159 or that Lachlan was “pinking up”.160 Mr Snow conceded that his ePCR was “bald”161 and given his time again he would populate it more.162 Under cross-examination his explanation for the lack of detail in Crew 2’s ePCR was that he noted on the ePCR that the initial and on-going management of the case was by Crew 1, as the first attending crew163 and the crew that was there for the duration of the case.164 He was relying on Crew 1 to complete the ePCR for Lachlan’s Case.165 His understanding was that Crew 1 would complete the full ePCR for attending ALS crews and MICA 24 would complete the ePCR for the MICA 24 crew.166 He gave the following further evidence regarding Crew 2’s ePCR:
“I was relying on one ALS ePCR to do the ALS management and the MICA ePCR to do the MICA management. I freed myself up from the scene. I didn't print out all the materials and the times and the rhythms. I have no ability to write what the first crew did for 11 minutes. I was there for four minutes in between. I haven't recorded every event. I have written that for VACAR to refer to the Riddels Creek.” 167
“I think the guideline is from 2010 and I think the direction is to make us available, that someone writes a proper PCR and that doesn't have to be every crew at the scene. And I relied on and I left it to them, but I freed myself up to give them a chop out, so that they didn't have to go to another job. And I did a job in Gisborne for them. I admit that my PCR - given my time again, I would populate it more, but I know that that exists, because I was interviewed by a CSO who didn't show me until after that - and the comments I made to him about the rhythms and the changes are evidenced on paper.” 168
“…it's my understanding that a patient care record must be attended for every patient that's attended, but not necessarily every crew that attends has to write the PCR.” 169
[93] As to Crew 1’s ePCR, Ms Mercer’s evidence was that she prepared the ePCR but that it was incomplete. 170 Ms Mercer’s evidence was that she partially completed the ePCR for Lachlan’s Case and then Crew 2 was called to another job.171 Following this, Crew 2 went to bed and her intention was to complete the ePCR prior to the end of her shift at 5 pm the next day.172 This did not occur as Crew 2 took special leave, following discussing Lachlan’s Case with the duty psychologist.173 She agreed under cross-examination that the ePCR for Lachlan’s Case should have been completed, most particularly because Lachlan’s Case involved a cardiac arrest.174
[94] In relation to ePCRs, Mr Stephenson’s evidence was that Lachlan’s Case was poorly documented by all three attending crews 175 and that relevant clinical observations throughout Lachlan’s case should have been included in the ePCRs.176 He gave further evidence that it was accepted practice within AV for the first crew on scene to record the detail of the care provided until the arrival of the MICA 24 crew. On arrival, the MICA 24 crew assume the care of the patient and will document care given after that time. If there is another crew attending, such as Crew 2 and Mr Snow in Lachlan’s Case, they will not prepare an ePCR with any detail and will usually prepare an ePCR which simply refers to the other ePCRs.177 Mr Stephenson also gave evidence that it is standard practice that verbalisation occurs during treatment of a patient. He said that every treatment is verbalised and every important check is verbalised.178
[95] Mr Wakeling gave evidence that he was not made verbally aware of difficulties with airway management 179 but there was evidence that there had been such difficulties.180 His evidence was that there was a large amount of vomit in Lachlan’s airway which he suctioned,181 that it was quite obvious and he noticed it as soon as he went to Lachlan’s head, even with the LMA in situ,182 he told Ms Hay he would intubate because Lachlan’s airway had been “an issue”183and based on his observations at the scene it was apparent to him that the first two ALS crews had experienced difficulties in clearing Lachlan’s airway.184
[96] Ms Hay gave evidence that upon arrival at the scene she was given a brief hand over by Ms Mercer 185 and that no one told her there had been any problems clearing Lachlan’s airway.186 Mr Snow did not mention the airway difficulty187 or the improvement in Lachlan’s colour.188 She gave further evidence that she couldn’t assess these things independently as Lachlan had been moved from where his airway was cleared. She could not see any suction equipment, nor smell any vomit or see any vomit on Lachlan’s face. As such, there was nothing to indicate to her that there was more regarding Lachlan’s condition that had been “withheld” from her.189 Under cross-examination, in relation to the airway difficulties encountered by the two ALS crews Ms Hay gave the following evidence:
“…Significant and important information was withheld from me.” 190
“If someone’s going to hide information there’s no suction equipment, there’s no vomit on the face, there’s no mention of anything, I can’t … 191.
[97] In response to this, the follow exchange occurred between Counsel for AV and Ms Hay:
“Ms Hay, no one hid, in the way you used that word, no one hid anything from you on that evening. Do you accept that no one hid anything from you?---I can't speculate. There was no evidence of it but an activity had occurred. There was no evidence of it so all the evidence of it was hidden from me. I'm not trying to imply anything malicious or negligent - - -
No, no, I just want to take you back, Ms Hay, because you're an articulate woman and I've asked you a lot of questions over five hours or so and I'm not patronising I promise you, but you're articulate - you use language carefully. You just said "hide from me"?---Yes, hide.
That's a very deliberate use of that word, the idea of someone concealing, to hide something, to not show you something deliberately, to hide. I'm putting to you, no one hid anything from you that night at that scene, did they?---There was no visible suction equipment, there was no evidence of vomit in the patient's mouth and nose. He had been cleared up.
Do you maintain - - -?---Hidden - I understand that hidden is a dreadful pejorative and accusatory word but if you tidy away all the evidence of an activity that's occurred, you are hiding it and I know that's - - -
It's pejorative, you're actually correct. As I said your use and facility with language is very good and you're absolutely correct, it's pejorative. It's a very serious allegation because you are alleging here, on the record under oath, and it's probably an opinion more than anything, but you're alleging that people, colleagues, Ambulance Victoria colleagues working with you on that night consciously and deliberately failed to disclose, obscured or, as you said, hid away from you relevant information. That's what you're putting, aren't you?---I don't know if it was conscious or if they wanted - I can't - - -
But to hide is deliberate, is it not? To hide something?---It's a deliberate action, yes.
That's the language you used, isn't it?---Yes, I wish I hadn't. Yes. It - the scene was tidied up, it was cleared away, there was no evidence of what had occurred prior to my arrival and no mention of - made of it after I had arrived.
You accused the Ambulance Victoria paramedics, with whom you were working of hiding, hiding something from you?---Yes. That's terrible.” 192
[98] In re-examination Ms Hay gave the following evidence:
“I understand Mr Harrington's point that it's quite a strong term, but there ought to have been some evidence of 15 minutes of failed airway management that I would be able to walk in and find. I would expect there to be some evidence, the smell of it is quite overpoweringly strong that there was no evidence of any - as I've already said, I couldn't see any suction equipment or overflowing suction bags or dirty towels or suction equipment and no one verbalised, "We've had a bit of trouble with the airway", and so when I used the word "hide" that this 15 minute activity had been so well cleaned up that I was - because there was no evidence that would've assisted me to even guess that they've had problems, and that's why I used the word "hide".” 193
[99] In cross-examination she gave evidence that Ms Mercer and Mr Snow were in close proximity to each other and that Ms Mercer spoke over Mr Snow to give her the handover. 194
[100] Ms Hay acknowledged that the ePCR she prepared for MICA 24 for Lachlan’s Case lacked “some detail”. 195 Her evidence was that this was a result of MICA 24 being called to another job almost immediately and not completing the ePCR until some two and one half hours after leaving the scene.196 Mr Stephenson’s197 and Mr Cudini’s198 evidence was that the ePCR prepared by Ms Hay lacked significant detail, not merely some detail.
[101] Ms Hay submitted that what was relayed to her about the difficulties that had been experienced with Lachlan’s airway is a matter of critical importance. 199 She submitted that her evidence that she was not made aware of the difficulties that had been encountered with managing Lachlan’s airway before the arrival of MICA 24 ought be accepted.200 She submits that the only direct evidence to counter her testimony that she was not informed about the airway management difficulties are the “conflicting stories” of Ms Mercer and Mr Snow. She submits that neither Mr Snow nor Ms Mercer said anything about the matter to Mr Cudini during his review, nor to the Investigator201 and further nothing in any of the ePCRs indicates that Ms Hay was informed of the airway difficulties.202 None of the other attending Paramedics said anything about Ms Hay being informed of airway difficulties in their incident reports, record of interview or witness statements, although both Ms Pemberton and Ms Brennan have recollections of Mr Snow making other comments to Ms Hay during the resuscitation about changes in Lachlan’s heart rhythm and ETCO2 levels.203
[102] It will be apparent from the above that, contrary to Ms Hay’s submission, in addition to Mr Snow and Ms Mercer, Mr Wakeling also gave evidence on this issue. It is uncontested that prior to arrival at the scene MICA 24 was not advised that there had been any difficulties with Lachlan’s airway. Further, notwithstanding her assertion to the contrary in her evidence-in-chief, under cross-examination Ms Mercer conceded that while she believed she told Ms Hay of the airway difficulties in the handover, she had no specific recollection of doing so. This is consistent with Mr Snow’s evidence. Accordingly, I find that Ms Mercer did not inform Ms Hay at handover of Lachlan’s airway difficulties. I therefore reject Ms Hay’s submission that Mr Snow and Ms Mercer have conflicting stories.
[103] As to whether Ms Hay was informed by Mr Snow of Lachlan’s airway difficulties, I prefer the evidence of Mr Snow over that of Ms Hay. For the reasons that follow, I consider Ms Hay’s evidence as to this matter to be unreliable. Firstly, Mr Snow’s uncontested and corroborated evidence is that he determined to move Lachlan into the garage and that he administered airway management, including suctioning 280 ml of vomit from Lachlan’s airway and removing solid matter from Lachlan’s vocal cords using forceps. At the very least, this requires suctioning equipment to be at the treatment scene when Ms Hay arrived, noting that the MICA 24 crew arrived on scene soon after airway interventions were completed. Secondly, I do not accept Ms Hay’s assertion that she could not assess whether there had been airway difficulties because Lachlan had been moved from where his airway was cleared. While Lachlan’s airway was initially cleared while he was outside, further significant airway clearance was undertaken by Mr Snow, with Ms Pemberton, using suctioning equipment and forceps, following Lachlan being moved to the garage. Thirdly, it therefore follows that I do not accept Ms Hay’s evidence that there was no visible suctioning equipment. Fourthly, I consider Ms Hay’s assertion that the evidence of airway difficulties had been hidden and withheld from her to be implausible. It is, in my opinion, entirely implausible to suggest that attending Paramedics at such a scene, in active resuscitation, would take time to “hide” evidence of treatment given or activities undertaken or would intentionally withhold relevant information. Fifthly, Mr Wakeling’s evidence that he told Ms Hay he would intubate because Lachlan’s airway had been an issue was not challenged, nor was his evidence that it was apparent that the ALS crews had experienced airway difficulties. Finally, when asked by the Bench to describe the physical scene when she arrived, Ms Hay could not recall whether there was equipment visible other than a drug bag and the Zoll. 204 In such circumstances, a positive assertion that there was no suction equipment evident at the scene cannot be accepted. In light of these matters, I consider Ms Hay’s evidence as to what occurred during the handover to be unreliable and I prefer the evidence of Mr Snow. Further, I find that there was evidence of the airway management issues at the scene when MICA 24 arrived.
[104] As to the differences between Mr Snow’s witness statement prepared for these proceedings and the content of his incident report and his record of interview, firstly, I do not find the content of those documents to be in conflict. In my opinion, on its face, the statement in his incident report is directed to what Ms Hay was told by Ms Mercer and others. It does not go to what Mr Snow may or may not have said. This, in my view, is consistent with Mr Snow’s evidence that he was responding to a question as to what Ms Mercer told Ms Hay. He has at all times maintained that Ms Mercer did not inform Ms Hay about the difficulties with Lachlan’s airways at handover. The statement in his record of interview does no more than say that Ms Mercer provided a brief handover to Ms Hay. As such, I do not consider it conflicts with his evidence included in his witness statement. I accept, however, that it does not include the detail of what Mr Snow now says he said to Ms Hay. Mr Snow’s evidence was that he did not draft the record of interview. It was prepared by the Investigator, he confirmed what was provided to him was correct and he signed it. I accept that evidence. The record of interview is therefore not Mr Snow’s own recollection of the events on 2 October 2017 and necessarily includes only that which the Investigator included. For my part, I find nothing curious in there being some differences between the content of these three documents, given the different purposes for which they were created and the differing manner of their creation. In particular, I find nothing unusual in a witness statement prepared in the context of legal proceedings being more fulsome. Indeed, I would find it more curious if all three documents had precisely the same content. Accordingly, I reject Ms Hay’s submission that Mr Snow has “conflicting stories”.
[105] Finally, Ms Hay says that the ePCRs prepared in Lachlan’s Case are the most contemporaneous record of the events of 2 October 2017 and, as such, places considerable weight on the fact that nothing is recorded in the ePCRs as to her being informed about Lachlan’s airway difficulties. It is accepted by both Mr Snow and Ms Mercer that the ePCR prepared by them in Lachlan’s Case was either incomplete or lacking in detail. Ms Hay also accepted that the ePCR she prepared lacked detail. Mr Stephenson’s evidence on this matter confirms that the ePCRs for all three attending crews were poor and that clinical detail that ought have been included was not. Mr Snow’s evidence of his understanding that Crew 1 would complete a comprehensive ePCR and that it was sufficient for Crew 2 to refer to Crew 1’s ePCR is consistent with Mr Stephenson’s evidence regarding this issue. I therefore accept Mr Snow’s explanation as to the absence of detail in Crew 2’s ePCR, including the absence of information regarding airway intervention and changes in Lachlan’s colour. Notably, both Ms Hay and Ms Mercer explain the absence of detail in their ePCRs due to attending other cases shortly after leaving the scene. It is apparent from the evidence that the completion of ePCRs is not, perhaps unsurprisingly, prioritised over attendance to calls. I accept that this, and in the case of Ms Mercer, unplanned special leave, resulted in Crew 2 and MICA 24 ePCRs being incomplete. I also accept Mr Snow’s evidence as to the manner in which the ePCR is populated (to which I refer later in this decision). In these circumstances, I find that the ePCRs prepared in Lachlan’s Case are unreliable and do not accurately record the events of 2 October 2017. I therefore place no weight on the absence of information about a particular matter in any of the ePCRs. Accordingly, I consider nothing turns on either Crew 1 or Crew 2’s failure to include information regarding airway intervention or that Lachlan was “pinking up” in their ePCRs.
[323] Further, I have also taken into consideration that Ms Hay, in contradistinction to Ms Mercer and Mr Wakeling, has at no time accepted that she was in error or failed in any way to properly discharge her duties on 2 October 2017. She has at all times maintained that she didn’t fail, 706 made clinically appropriate decisions707 and that her mistake was assuming that she received a proper handover from Ms Mercer.708 Accordingly, Ms Hay has shown no insight into her failings or taken any responsibility for her role in the events of 2 October 2017. In these circumstances, I do not consider any unfairness arises from Ms Hay’s singular termination of employment.
Personal circumstances of Ms Hay
[324] I have considered Ms Hay’s age, length of service, employment history and her personal and economic circumstances. I have taken into consideration that dismissal has had a very significant effect on Ms Hay. However, I am not satisfied that these factors negate the seriousness of the misconduct engaged in by her on 2 October 2017.
Proportionality and summary dismissal
[325] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). Clearly a dismissal may be harsh because it is disproportionate to the gravity of the misconduct on which the employer acted.
[326] For the reasons set in paragraphs [313]-[316], I have found that Ms Hay engaged in serious and wilful misconduct within the meaning clause 60.5 of the Agreement. Even considered in isolation, in my view, each of the matters I have found to be a valid reason constitutes serious and wilful misconduct. I consider Ms Hay’s conduct on 2 October 2019 was a matter of the utmost seriousness.
[327] In light of this and taking into account all of the circumstances, I consider that AV’s summary dismissal of Ms Hay’s was not disproportionate to her conduct.
Conclusion
[328] Taking into account all of the evidence and the considerations of section 387 of the Act and based on my factual findings, I consider that the dismissal of Ms Hay was not harsh, unjust or unreasonable.
[329] Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
N Harrington of Counsel for the Respondent, with the Victorian Government Solicitor’s Office.
P Hull for the Applicant.
Hearing details:
2019.
Melbourne:
June 5 to 7, July 24 to 26, September 13.
Final written submissions:
Applicant, 23 August 2019 and 12 September 2019 (amended).
Respondent 10 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR718620>
Annexure A
Medical Terminology 709
Adrenaline
Adrenaline is a hormone which increases diastolic blood pressure, which results in a greater volume of blood returning back to the heart from the peripheral blood vessels. It also increases the force of the heart's contractions and increases the heartbeat rate. The duration of adrenaline's action on a patient peaks at about three to five minutes. As such, paramedics administer adrenaline every four minutes during a resuscitation.
Artefact
Electrical interference with the ECG, generally caused by external triggers. 710
Asystole
Where the heart has no mechanical or electrical activity and is not contracting. Appears as a 'flat-line' on an ECG.
CPR
Cardiopulmonary resuscitation.
Cyanosis
A blue discolouration of the skin. 711
ECG
Electrocardiogram.
Electrical activity
The current that is required to initiate a contraction of the heart.
End tidal CO2 (ETCO2)
The amount of carbon dioxide that the body expels via the lungs during exhalation. An increase in ETCO2 correlates with ROSC and an increase in cellular metabolic activity in cardiac arrest patients.
ETI / ETT
Endotracheal intubation. This involves the placement of a plastic tube, known as an endotracheal tube (ETT) 712 into a patient's trachea to administer oxygen.713 The ETT is inserted through the larynx into trachea, where the cuff of the ETT is pumped up. The ETT is then secured with tape or a tie, plugged into the same ventilation gear as the LMA through which the ETCO2 reading will continue.714
Mechanical activity
The physical pumping of the heart.
Narrow ventricular complexes
A type of electrical heart rhythm that can result in muscular contraction of the heart. This may also be referred to as QRS complexes, narrow complexes or PAC (premature atrial contraction).
Pulseless electrical activity (PEA)
Where there is identified electrical activity in the heart, which either does not result in mechanical activity and therefore no blood from the heart with each contraction, or results in reduced mechanical activity that generates low blood flow from the heart with every heart contraction and does not manifest the presence of a palpable pulse (this is known as a low (blood) flow state).
ROSC
Return of spontaneous circulation. Where the heart functions electrically and mechanically without CPR and a level of blood flow is restored to the body and brain.
Sinus bradycardia
The normal electrical rhythm of a youth’s functioning heart, however the heart rate is lower than normal (normal heart rate is 60 – 100 beats per minute at rest).
Sinus rhythm
The normal electrical rhythm of a functioning human heart.
Medical Equipment 715
LMA
Laryngeal Mask Airway, sometimes referred to as an i-Gel. 716 It is a device used by advanced life support paramedics to ventilate a patient.717 The LMA slides down in behind the tongue and covers the oesophagus so that oxygen goes down the trachea and into the lungs.718 Once inserted, the LMA helps to prevent vomit going into the lungs and ensure that air is ventilated into the lungs rather than the stomach.719 The LMA is secured by either holding or taping it in place.720
Zoll Monitor
Zoll monitors are devices that, among other things, display and record real-time ECG data 721 and ETCO2 data.722 The data displayed on the Zoll monitor screen is represented as a yellow graph.723 The ECG data is displayed above the ETCO2 data on the screen.724
1 Mr Kennedy was granted leave to give evidence as to the equipment used by Paramedics. No witness statement was filed by Mr Kennedy
2 Exhibit R23, Annexure DC-1 (pg.1-2)
3 Ibid (pg.2-3)
4 Ibid (pg.11)
5 Exhibit A3, Annexure LH 6
6 AV’s Form F3 Employer's response to unfair dismissal application, question 3.2 at [12–18]
7 Transcript PN5721
8 Exhibit R18 at [1-4]
9 Transcript PN4977
10 Exhibit R16 at [1]
11 Transcript PN4978
12 Exhibit R16 at [4]
13 Exhibit R23 at [1]
14 Ibid at [2-3]
15 Transcript PN6542
16 Ibid
17 Fair Work Act 2009 (Cth), s.591
18 Pearse v Viva Energy[2017] FWCFB 4701 at [14]
19 Applicant’s amended closing submissions at [42]
20 Ibid
21 Exhibit R23, Annexure DC-2
22 Transcript PN407-412
23 Exhibit A10 at [3.1]; Transcript PN4901
24 Exhibit A10, Appendix 1 (pg.15)
25 Exhibit A10, Appendix 1 (pg.11); Transcript PN4820
26 Exhibit R15
27 Exhibit A10, Appendix 1
28 Ibid (pg.12), Transcript PN4858–4862
29 Exhibit A10, Appendix 1 (pg.11); Transcript PN4820
30 Exhibit A10, Appendix 1 (pg.13); Transcript PN4925
31 Transcript PN4885
32 Transcript PN4820 and PN4886
33 Transcript PN4887
34 Transcript PN4912 and PN4948
35 Transcript PN4890
36 Transcript PN4891
37 Transcript PN4912
38 Transcript PN4895-4896
39 Transcript PN4902
40 Exhibit A10 at [7.22] and [7.26]
41 Transcript PN4820 and PN4936
42 Ibid
43 Transcript PN4820
44 Ibid
45 Transcript PN4943
46 Transcript PN4945
47 Transcript PN4946-4947
48 Transcript PN4887
49 Transcript PN4912 and PN4948
50 Transcript PN4947
51 R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488 (affirmed in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 66-67).
52 Fair Work Act 2009 (Cth), s.591
53 Pearse v Viva Energy[2017] FWCFB 4701 at [14]
54 Fair Work Act 2009 (Cth), s.577(a)
55 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith and others v Moore Paragon Australia Ltd, [2002] AIRC 317 at [69].
56 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
57 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
58 Edwards v Guidice (1999) 94 FCR 561 at 564; King v Freshmore (Vic) Pty Ltd, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000 Print S4213 at [24]
59 Ibid
60 Briginshaw v Briginshaw (1938) 60 CLR 336
61 Ibid at 363
62 Ibidper Dixon J at 362
63 Ibid per Rich J at 350
64 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216
65 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450
66 [2003] NSWCA 388
67 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd
(2013) 306 ALR 125 at [35-37]
68 NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]
69 Transcript PN362, PN363 and PN370
70 Exhibit R33, clause 60
71 Applicant’s amended closing submissions at [14-15]
72 Ibid at [16]
73 Ibid at [127]
74 Exhibit R25
75 Respondent’s closing submissions at [6]; Exhibit R25
76 Exhibit R29
77 Ibid at [2.1]
78 Ibid at [1.1]
79 Ibid
80 Ibid
81 Transcript PN719–800
82 Transcript PN975-982
83 Transcript PN972
84 Transcript PN973
85 Transcript PN978
86 Exhibit R13 at [9]
87 Ibid at [19.1(a)]
88 Transcript PN3041; Exhibit R10, Annexure AS-2 and Annexure AS-3 at [6]; Exhibit R12, Annexure JP-1 at [3]; Exhibit R13 at [19.1(a)]; Exhibit R18, Annexure SB-3 at [12]; Exhibit R23, Annexure DC-1
89 Exhibit R8 at [9], Exhibit R9 at [6]
90 Exhibit R23, Annexure DC-1 (pg.3)
91 Exhibit R13, Annexure KM-2 (pg.1); Exhibit R14, Annexure MB-1 (pg.2)
92 Exhibit R13 at [19.1(b)]
93 Exhibit R13 at [19.1(b)] and Annexure KM-2 (pg.1)
94 Exhibit R13, Annexure KM-2 (pg.1)
95 Exhibit R10, Annexure AS-2 (pg.1); Exhibit R18 at [50]; Exhibit R23, Annexure DC-1 (pg.1); Exhibit R14, Annexure MB-1 (pg.2); Exhibit A3, Annexure LH 4 (pg.1)
96 Exhibit R10, Annexure AS-2 (pg. 1); Exhibit R18, Annexure SB-3 at [17]; Exhibit A3 at [9]
97 Exhibit R13 at [19.1(c)]; Exhibit R14, Annexure MB-1 (pg.2), Exhibit R14, MB-2 at [3]
98 Transcript PN4526-4528
99 Exhibit R10, Annexure AS-3 at [8]
100 Exhibit R10, Annexure AS-2 (pg.1)
101 Ibid; Exhibit R13 at [19.1(d)]; Exhibit R12, Annexure JP-1 at [3]
102 Exhibit R10, Annexure AS-2 (pg.2)
103 Ibid; Exhibit R12, Annexure JP-1 at [3] and Annexure JP-3 (pg.1)
104 Exhibit A3, Annexure LH 2 (pg.2); Exhibit R12, Annexure JP-3 (pg.1); Exhibit R10, Annexure AS-2 (pg.2); Exhibit R10, Annexure AS-3 at [8]
105 Exhibit R10, Annexure AS-3 at [11]; Exhibit R12, Annexure JP-1 at [3] and Annexure JP-2 (pg.1); Exhibit R13 at [19.1(d)]
106 Exhibit R12, Annexure JP-1 at [4]; Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [11]
107 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [11]; Exhibit R13, Annexure KM-3 at [3]
108 Exhibit R10, Annexure AS-3 at [11]; Exhibit R13, Annexure KM-3 at [3]
109 Applicant’s amended closing submissions at [24]
110 Transcript PN3564
111 Transcript PN4420
112 Transcript PN4421
113 Transcript PN4420
114 Transcript PN4419
115 Applicant’s amended closing submissions at [24.2]
116 Exhibit A3, Annexure LH 9 (Q18-Q19); Exhibit R18 at [34]; Exhibit R11 at [25]; Exhibit R16, Annexure MS-2 at [8]; Exhibit R23 at [25]; Applicant’s amended closing submissions at [25]
117 Exhibit R10 at [24.15]; Exhibit R11 at [9]; Exhibit R13, Annexure KM-3 at [3]; Applicant’s amended closing submissions at [25]
118 Exhibit R11 at [25]
119 Transcript PN3998
120 Transcript PN4000
121 Transcript PN3999-4001
122 Exhibit R11 at [25.1]
123 Transcript PN4050
124 Transcript PN4001
125 Transcript PN4002
126 Transcript PN6393-6394
127 Transcript PN5685
128 Transcript PN5684
129 Transcript PN5152
130 Transcript PN5257
131 Transcript PN5684
132 Exhibit R18 at [35]
133 Transcript PN655
134 Transcript PN1784
135 Applicant’s amended closing submissions at [99.1.1]
136 Transcript PN6700
137 Applicant’s amended closing submissions at [99.1.1.1]
138 Exhibit R25; Transcript PN791-800
139 Transcript PN1056-57
140 Exhibit R13 at [19.2(d)] and Annexure KM-3 at [3]
141 Exhibit R10 at [24.2]
142 Exhibit R13 at [19.2(d)]
143 Transcript PN4567-4572
144 Transcript PN3725
145 Exhibit R10 at [24.3]; Transcript PN3051-3053
146 Transcript PN3051-3052
147 Transcript PN3096
148 Transcript PN3097
149 Transcript PN3096
150 Transcript PN3044, PN3056 and PN3932-3936
151 Transcript PN3056-3057
152 Transcript PN3109
153 Transcript PN3111
154 Transcript PN3111
155 Transcript PN3125
156 Transcript PN3131
157 Exhibit R10 at [12]
158 Transcript PN3172
159 Transcript PN3170
160 Transcript PN3171
161 Transcript PN3243
162 Transcript PN3265
163 Transcript PN3191-3193
164 Transcript PN3243
165 Transcript PN3243
166 Transcript PN3196, PN3226 and PN3243
167 Transcript PN3196
168 Transcript PN3265
169 Transcript PN3229
170 Transcript PN4519
171 Transcript PN4530 and PN4532
172 Transcript PN4533
173 Transcript PN4536
174 Transcript PN4534-4535
175 Transcript PN5578
176 Transcript PN5581
177 Transcript PN5578-5580
178 Transcript PN5698-5699
179 Transcript PN4023
180 Transcript PN4024
181 Exhibit R11, Annexure JW-1 at [5]
182 Transcript PN4032-4033
183 Exhibit R11, Annexure JW-1 at [5]
184 Exhibit R11 at [31]
185 Exhibit A3 at [9]
186 Ibid at [20.2]
187 Exhibit A3, Annexure LH 9 (Q.236)
188 Ibid (Q190) and (Q327)
189 Transcript PN1032 and PN1043
190 Transcript PN1885
191 Transcript PN1888
192 Transcript PN1890–1897
193 Transcript PN2102
194 Transcript PN1738
195 Exhibit A3 at [20.9]
196 Ibid
197 Exhibit R16 at [51]
198 Exhibit R23 at [38]
199 Applicant’s amended closing submissions at [80]
200 Ibid at [85]
201 Ibid at [86]
202 Ibid at [65]
203 Ibid at [70-79]
204 Transcript PN2128
205 Transcript PN665
206 Transcript PN1040
207 Transcript PN835
208 Transcript PN911
209 Transcript PN654
210 Exhibit R10, Annexure AS-3 at [13]; Transcript PN3699-3702
211 Exhibit R13 at [19.2(c) and (e)] and Annexure KM-3 at [4]
212 Exhibit R14, Annexure MB-2 at [3]
213 Exhibit R12 at [17.3] and Annexure JP-1 at [5]
214 Exhibit R10 at [24.1]; Transcript PN3699-3702
215 Transcript PN655
216 Transcript PN1034
217 Transcript PN1034–1043
218 Transcript PN668
219 Exhibit R11 at [25]
220 Transcript PN3998
221 Transcript PN4000
222 Transcript PN3999-4001
223 Exhibit R23 at [24.3]
224 Ibid at [24.4]
225 Transcript PN6387
226 Transcript PN6210
227 Transcript PN5694
228 Exhibit R16 at [48]
229 Transcript PN5694
230 Exhibit R18 at [35]
231 Applicant’s amended closing submissions at [98.1]
232 Exhibit R11 at [31]
233 Ibid
234 Ibid at [33]
235 Ibid at [42]
236 Ibid at [33-34]
237 Ibid at [32]
238 Exhibit R10 at [23.2], Annexure AS-2 and Annexure AS-3 at [12]
239 Exhibit R10 at [23.2]
240 Exhibit R12 at [25], Annexure JP-1 at [6]
241 Transcript PN1051
242 Exhibit A3 at [20.7]
243 Ibid at [20.8]
244 Transcript PN1183
245 Respondent’s closing submissions at [112-113]
246 Applicant’s amended closing submissions at [98.9]
247 Transcript PN906, PN910, PN929 and PN1216
248 Transcript PN906
249 Transcript PN955-957 and PN1216
250 Transcript PN911
251 Applicant’s amended closing submissions at [84]
252 Transcript PN1976-1980
253 Transcript PN906, PN910 and PN1976
254 Transcript PN5477, PN5483-5484, PN5486 and PN5490
255 Transcript PN5490
256 Transcript PN5487
257 Exhibit R11 at [25]
258 Exhibit R23 at [24.12]
259 Ibid at [24.13]
260 Transcript PN5694
261 Exhibit R16 at [49]
262 Transcript PN5598
263 Exhibit R18 at [35-36]
264 Exhibit A3 at [10]; Exhibit R12, Annexure JP-1 at [5]; Exhibit R13 at [19.2(e)]; Exhibit R14, Annexure MB-2 at [3]
265 Exhibit A3, Annexure LH 9 (Q365) and (Q382)
266 Transcript PN1387
267 Transcript PN964
268 Transcript PN1388
269 Exhibit A3 at [11-12]
270 Transcript PN1466
271 Transcript PN676 and PN1394
272 Transcript PN677
273 Transcript PN1394-1399
274 Transcript PN1424-1425
275 Exhibit A3, Annexure LH 9 (Q384), (Q403) and (Q419-420)
276 Ibid (Q387)
277 Exhibit R8 at [5-7]; Exhibit R9 at [4-5]
278 Transcript PN4525
279 Exhibit R8 at [22]; Exhibit R9 at [17]; Transcript PN2747, PN2818 and PN2853
280 Transcript PN2743 and PN2851–2853
281 Exhibit R10 at [24.7]
282 Exhibit R12, Annexure JP-3
283 Exhibit R8 at [13], [14] and [18]
284 Exhibit R9 at [9], [13] and [19.5], Transcript PN2855
285 Exhibit R9 at [9], [13] and [19.5]; Exhibit R8 at [14]
286 Exhibit R8 at [18], [24.2] and [26.4]
287 Exhibit R9 at [13], [19.2], [20] and [21.4]
288 Exhibit R8 at [18], [24.4] and [27]; Exhibit R9 at [13] and [19.4]
289 Exhibit R8 at [13], [21], [24.1], and [26.1]; Exhibit R9 at [16], [19.1] and [21.1]
290 Exhibit R8 at [24.6] and [26.2]; Exhibit R9 at [19.6] and [21.2]
291 Exhibit R8 at [18], [25] and [26.3]; Exhibit R9 at [20] and [21.3]
292 Applicant’s amended closing submissions at [99.2-99.4]
293 Respondent’s closing submissions at [85]; Exhibit R10, Annexure AS-3 at [13], [14] and [18]
294 Exhibit R10 at [24.10-24.11]
295 Ibid at [24.17]
296 Applicant’s amended closing submissions at [98.10.6.1.1.1]
297 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]; Transcript PN3928 and PN3838-3839
298 Exhibit R10, Annexure AS-2 (pg.2)
299 Exhibit R10, Annexure AS-3 at [13]
300 Applicant’s amended closing submissions at [91.2]
301 Exhibit R10 at [24.6]
302 Exhibit R13 at [19.2(b)]
303 Ibid at [19.3(a)]
304 Exhibit R12, Annexure JP-1 at [7]; Transcript PN4343-4351
305 Exhibit R12 at [24.11] and [26] and Annexure JP-2
306 Exhibit R12 at [16.1]
307 Exhibit R14, Annexure MB-2 at [5]
308 Exhibit R11, Annexure JW-1 at [7]
309 Exhibit R11 at [15.2]
310 Exhibit A3 at [20.4]
311 Ibid
312 Transcript PN671, PN1236 and PN1253
313 Transcript PN1254
314 Applicant’s amended closing submissions at [51]
315 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]; Transcript PN3739, PN3838 and PN3928
316 Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
317 Exhibit R12 at [16.1] and [27]
318 Exhibit R12 at [16.1] and [27], Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
319 Exhibit R12 at [16.1]
320 Transcript PN4238
321 Transcript PN4232-4236
322 Exhibit A3 at [20.4]
323 Transcript PN1239
324 Transcript PN1239, PN1252 and PN1320,
325 Applicant’s amended closing submissions at [96]
326 Ibid at [97]
327 Ibid at [90-91]
328 Exhibit R10, Annexure AS-2 (pg.2)
329 Exhibit R10, Annexure AS-3 at [13]
330 Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
331 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]
332 Exhibit R12, Annexure JP-1 at [7], Annexure JP-2 (pg.1)
333 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [14]; Transcript PN3421-3423
334 Exhibit R10 at [24.6]
335 Ibid at [24.17]
336 Exhibit R10, Annexure AS-2 (pg.2), Annexure AS-3 at [14] and [17]; Transcript PN3739 and PN3929
337 Exhibit R10 at [28]
338 Exhibit R11, Annexure JW-1 at [8]
339 Exhibit R11 at [15.2]
340 Exhibit R13, Annexure KM-3 at [4]
341 Transcript PN4592
342 Exhibit R13 at [14.1] and [19.4(a)], Annexure KM-2 (pg.2) and Annexure KM-3 at [5]; Transcript PN4399
343 Transcript PN4398
344 Exhibit R14, Annexure MB-2 at [6]
345 Exhibit R12 at [27], Annexure JP-1 at [8-10], Annexure JP-2 (pg.1-2) and Annexure JP-3 (pg.2); Transcript PN4343-4351
346 Exhibit R14 at [21], Annexure MB-2 at [6]
347 Transcript PN4718-4719
348 Exhibit A3 at [20.4]
349 Ibid
350 Ibid at [20.5]
351 Transcript PN671
352 Transcript PN1273
353 Exhibit A3 at [20.4]; Transcript PN1271-1272
354 Transcript PN1274-1276 and PN1278; Exhibit A3 at [20.11]
355 Applicant’s amended closing submissions at [96]
356 Ibid at [97]
357 Transcript PN668
358 Applicant’s amended closing submissions at [54]
359 Ibid at [50]
360 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [17]; Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1); Exhibit R13, Annexure KM-2 (pg.2) and Annexure KM-3 at [5].
361 Exhibit R10 at [24.10-24.11], [30] and Annexure AS-3 at [18]; Transcript PN3740-3746
362 Exhibit R10 at [30]; Transcript PN3745
363 Exhibit R12 at [24.14] and Annexure JP-3 (pg.2); Transcript PN4213 and PN4313
364 Exhibit R14 at [21] and Annexure MB-2 at [7]; Transcript PN4709
365 Exhibit A3 at [20.10]; Transcript PN1369
366 Transcript PN1360-1366
367 Transcript PN1367-1368
368 Exhibit R10 at [24.11]; Transcript PN3742-3744
369 Exhibit R10, Annexure AS-3 at [17]
370 Ibid at [18]
371 Ibid at [18], Transcript PN3065 and PN3750
372 Exhibit R10 at [24.6]
373 Ibid at [24.17]; Transcript PN3065-3067
374 Exhibit R10, Annexure AS-3 at [18]; Transcript PN3765
375 Exhibit R10 at [24.10], [24.15], [24.18], [26.1-26.2], [30], Annexure AS-2 (pg.2) and Annexure AS-3 at [18]; Transcript PN3068, PN3391, PN3740-3741, PN3750, PN3765 and PN3753
376 Exhibit R12, Annexure JP-1 at [11]
377 Exhibit R12 at [24.15], Annexure JP-1 at [11], Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2)
378 Transcript PN4347-4350
379 Exhibit R12 at [24.15], Annexure JP-1 at [11], Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2); Transcript PN4213 and PN4249
380 Transcript PN4578
381 Exhibit R13 at [19.4(a)], Annexure KM-3 at [6]; Transcript PN4432 and PN4576
382 Transcript PN4718
383 Transcript PN 4719
384 Exhibit A3 at [20.4]
385 Ibid at [20.4]
386 Ibid at [20.5]
387 Exhibit A3 at [20.10], Annexure LH 9 (Q.322-325); Transcript PN1369
388 Transcript PN1366-1368
389 Exhibit R23, Annexure DC-1 (pg.3)
390 Exhibit A3 at [6]
391 Ibid at [13]
392 Applicant’s amended closing submissions at [98.4.6]
393 Exhibit R13, Annexure KM-1 (pg.1)
394 Exhibit R10, Annexure AS-1 (pg.2)
395 Applicant’s amended closing submissions at [98.10.1.1]
396 Ibid at [99.12.1]
397 Transcript PN1073
398 Transcript PN1073; Exhibit A3 at [12-13]
399 Transcript PN1076
400 Exhibit A3 at [20.23]
401 Exhibit A3, Annexure LH 9 (Q24-31)
402 Transcript PN1079
403 Ibid
404 Transcript PN1439
405 Transcript PN2122; Exhibit R23, Annexure DC-4 (pg.2)
406 Exhibit R10 at [24.15], [26.2], Annexure AS-2 (pg.2-3) and Annexure AS-3 at [18]; Transcript PN3069 and PN3395
407 Transcript PN3396
408 Exhibit R10 at [26.2]; Transcript PN3058
409 Transcript PN3941-3942
410 Transcript PN3593 and PN3807
411 Transcript PN3749-3753
412 Transcript PN3765-3766
413 Exhibit R10 at [24.18], Annexure AS-2 (pg.3)
414 Exhibit R10, Annexure AS-3 at [18]
415 Ibid, Transcript PN3344 and PN3402
416 Exhibit R10, Annexure AS-2 (pg.3)
417 Exhibit R10, Annexure AS-3 at [18]
418 Transcript PN3344
419 Transcript PN3388
420 Transcript PN3388-3390
421 Exhibit R10, Annexure AS-2 at (pg.2)
422 Exhibit R10 at [24.15], Annexure AS-2 (pg.2) and Annexure AS-3 at [18]
423 Exhibit R10, Annexure AS-2 (pg.2-3)
424 Exhibit R10 at [26.2]
425 Transcript PN3144
426 Transcript PN3188
427 Transcript PN 3189
428 Transcript PN3178
429 Transcript PN3184
430 Transcript PN3178
431 Transcript PN3182
432 Transcript PN3176
433 Exhibit R11 at [23.3]
434 Exhibit R11, Annexure JW-1 at [11]
435 Exhibit R11, Annexure JW-2 (pg.2)
436 Transcript PN4079
437 Transcript PN4082
438 Exhibit R11 at [23.3]; Transcript PN4083
439 Exhibit R11 at [36-37] and Annexure JW-1 at [11]
440 Exhibit R12 at [17.5]
441 Exhibit R12, Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2), Transcript PN4249 and PN4313
442 Transcript PN4249
443 Transcript PN4307 and PN4313-4314
444 Transcript PN4297-4298
445 Exhibit R12 at [17.6-17.7]; Transcript PN4242
446 Exhibit R12 at [17.5]
447 Transcript PN4315
448 Exhibit R12 at [16.4]
449 Ibid at [17.5]
450 Ibid at [16.4]
451 Transcript PN4322
452 Exhibit R12 at [16.4], Annexure JP-1 at [12] and Annexure JP-2 (pg.2)
453 Exhibit R13 at [19.4(a)] and Annexure KM-3 at [6]
454 Exhibit R13 at [14.1]
455 Transcript PN4430
456 Transcript PN4426–4432
457 Exhibit R13 at [14.1] and [19.4(d)]
458 Exhibit R14 at [22]
459 Transcript PN4715
460 Transcript PN4686-4692
461 Transcript PN4687
462 Transcript PN5151
463 Transcript PN5152
464 Exhibit R11 at [25]
465 Transcript PN3998
466 Transcript PN4000
467 Transcript PN3999-4001
468 Transcript PN5694
469 Transcript PN655
470 Exhibit A5; Exhibit A6
471 Exhibit A5 (pg.1)
472 Exhibit A3 at [20.19]
473 Transcript PN559, PN612-619 and PN626
474 Transcript PN559
475 Transcript PN559-561, PN612-619 and PN626
476 Transcript PN561
477 Transcript PN612, PN857, PN868-869 and PN2069
478 Transcript PN825 and PN1911
479 Transcript PN1912
480 Transcript PN1982-1984 and PN1998-2023
481 Transcript PN1916
482 Transcript PN835
483 Transcript PN831-839
484 Transcript PN510, PN2007-2008 and PN2058
485 Transcript PN612, PN857, PN862 and PN2010-2013
486 Transcript PN2024
487 Transcript PN868
488 Transcript PN2027
489 Transcript PN848
490 Transcript PN856-857
491 Transcript PN5787
492 Transcript PN5788
493 Transcript PN5789-5796 and PN5799
494 Transcript PN5806
495 Transcript PN5811
496 Transcript PN5817
497 Transcript PN5818-5821
498 Transcript PN5841
499 Ibid
500 Transcript PN5842
501 Applicant’s amended closing submissions at [95]
502 Ibid
503 Exhibit R26
504 Ibid, page 1 of 4
505 Ibid, page 3 of 4
506 Respondent’s closing submissions at [144(o)]; Applicant’s amended closing submissions at [40.2]
507 Applicant’s amended closing submissions at [98.6.1]
508 Transcript PN885
509 Exhibit A3 at [20.20]
510 Transcript PN923
511 Transcript PN805
512 Transcript PN559
513 Exhibit A3 at [20.21]
514 Transcript PN906
515 Transcript PN919
516 Transcript PN921
517 Transcript PN799-800
518 Transcript PN887-889
519 Transcript PN890-892
520 Transcript PN882–892
521 Transcript PN1096-1097
522 Exhibit R11 at [36]
523 Exhibit R23 at [24.8]
524 Transcript PN6399
525 Exhibit R16 at [47]
526 Transcript PN5583
527 Transcript PN5584
528 Exhibit R16 at [52]; Transcript PN5586
529 Transcript PN5518
530 Transcript PN5593
531 Exhibit R18 at [46]
532 Exhibit R18, Annexure SB-3 at [44]
533 Exhibit R18 at [43]
534 Ibid at [45]
535 Exhibit R18, Annexure SB-3 at [45]
536 Applicant’s amended closing submissions at [98.6.1.2.3]
537 Ibid at [98.6.1.2]
538 Ibid at [98.6.1.2.2]
539 Exhibit R26, page 1 of 4
540 Ibid
541 Exhibit A3 at [20.21]; Transcript PN906
542 Transcript PN906-910
543 Transcript PN1307
544 Transcript PN6609-6610
545 Exhibit R23 at [14.3]
546 Exhibit R23 at [14.7]
547 Ibid at [14.1]
548 Ibid at [14.2]
549 Transcript PN6169-6170
550 Transcript PN6073
551 Transcript PN6040
552 Exhibit R23 at [14.1]
553 Transcript PN6175
554 Ibid
555 Exhibit R23 at [14.5]
556 Transcript PN6041
557 Exhibit R23 at [14.8]
558 Ibid
559 Transcript PN6068
560 Exhibit R16, Annexure MS-2 at [8]; Transcript PN5687
561 Transcript PN6064
562 Exhibit R23 at [14.8]
563 Transcript PN5665
564 Exhibit R18 at [47]
565 Transcript PN5656
566 Exhibit R18 at [47]
567 Ibid at [47]
568 Ibid at [35.4] and [48]
569 Transcript PN1260-1261
570 Exhibit R23 at [14.5]
571 Exhibit R18 at [35.6]; Transcript PN6197
572 Transcript PN6146-6149; Exhibit R23 at [14.4]
573 Exhibit R23 at [14.4]
574 Exhibit R18 at [37]
575 Exhibit R23, Annexure DC-2
576 Applicant’s amended closing submissions at [43] and [49]; Exhibit R23, Annexure DC-2
577 Exhibit R23, Annexure DC-2 (pg.1)
578 Exhibit R10 at [24.6]
579 Ibid at [24.9] and Annexure AS-3 at [20]
580 Exhibit R10 at [29]
581 Exhibit R10, Annexure AS-2 (pg.2); Transcript PN3353
582 Transcript PN3346 and PN3353
583 Exhibit R10 at [24.14]; Transcript PN3793
584 Exhibit R12, Annexure JP-3 (pg.2)
585 Exhibit R12 at [17.6]
586 Transcript PN1312-1313 and PN1256
587 Transcript PN1077-1082
588 Transcript PN1078
589 Transcript PN1309
590 Transcript PN1472
591 Transcript PN1473
592 Transcript PN1474
593 Transcript PN1478-1480
594 Transcript PN1482
595 Transcript PN1314
596 Exhibit R23 at [21.3]
597 Ibid at [21.1]; Transcript PN6399
598 Exhibit R23 at [24.6(e)]
599 Ibid at [21.3]
600 Transcript PN6089
601 Exhibit R18, Annexure SB-3 at [45]
602 Transcript PN5056
603 Transcript PN5077
604 Transcript PN5076
605 Transcript PN5661 and PN5255
606 Transcript PN5639
607 Transcript PN5639 and PN5641
608 Exhibit R16 at [18] and [53]
609 Transcript PN5665
610 Transcript PN5688
611 Transcript PN5280
612 Transcript PN5607
613 Exhibit R16 at [53]
614 Transcript PN5078
615 Applicant’s amended closing submissions at [51]
616 Ibid at [98.6.1.3]
617 Respondent’s closing submissions at [137]
618 Transcript PN5691
619 Exhibit R16 at [52]
620 Ibid at [21]
621 Transcript PN5253
622 Respondent’s closing submissions at [2(d)] and [5]
623 Transcript PN6658-6662
624 Exhibit A3, Annexure LH 9
625 Ibid (Q87-96)
626 Ibid (Q101-103)
627 Ibid (Q106)
628 Transcript PN1111
629 Transcript PN1113-1117
630 Transcript PN1118-1119
631 Transcript PN1129-1132
632 Applicant’s amended closing submissions at [102]
633 Ibid at [103]
634 Ibid at [109] and [112]
635 Ibid at [115.1–115.4]
636 Ibid at [116] and [123-126]
637 Ibid at [112]
638 Ibid at [123]
639 Ibid at [125-128]
640 Ibid at [126-127]
641 Ibid at [127]
642 Ibid at [136]; Transcript PN6637
643 Transcript PN366
644 Applicant’s amended closing submissions at [13]
645 See for example Transcript PN2344-2354; PN2358-2363; PN2366-2386; PN6630
646 Applicant’s amended closing submissions at [7]
647 Lane v Arrowcrest (1990) 27 FCR 427 at [456], Bryne v Australian Airlines Ltd [1995] HCA 24 at [131], [136]
648 Applicant’s amended closing submissions at [8]
649 Respondent’s closing submissions at [2]
650 Ibid at [2(c)]
651 Ibid at [2] and [4]
652 Ibid at [2(d)] and [5]
653 Ibid at [186] and [192]
654 Ibid at [188]
655 Ibid at [189]
656 Ibid at [189] and [191]
657 Annetta v Ansett Australia (2000) 98 IR 233
658 He v Lewin (2004) 137 FCR 266 at [15], per Gray and Mansfield JJ, see also Miller v University of NSW [2003] FCAFC 180 per Gray J at [15]
659 (2004) 137 FCR 266 at [15]
660 Miller v University of NSW [2003) FCAFC 180 per Gray at [15]
661 [2010] FWAFB 4385
662 Applicant’s amended closing submissions at [136]
663 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285, 293-297; B v Australian Postal Corporation (2013) 238 IR 1, [36]; Farstad Shipping (Indian Pacific) Pty Ltd v Rust[2017] FWCFB 4738, [46]
664 Transcript PN1369
665 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]
666 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730
667 Exhibit A1 at [4]
668 Applicant’s amended closing submissions at [8-13], [130-132] and [134]
669 Ibid at [13]
670 Ibid at [13] and [132]
671 Respondent’s closing submissions at [199]
672 Exhibit A3 at [4]
673 Transcript PN5314
674 Transcript PN5574
675 Transcript PN5131
676 Transcript PN5127-5131
677 Transcript PN5139-5141
678 Transcript PN5117 and PN5118
679 Exhibit R23 at [16]
680 Transcript PN6246-6248
681 Transcript PN6251-6252
682 Transcript PN6255
683 Exhibit R18 at [15]
684 Exhibit R18 at [16]
685 Transcript PN5905
686 Transcript PN5913
687 Transcript PN5933
688 Exhibit R7 at [26]
689 Exhibit R7 at [12] and [17]
690 Transcript PN2325
691 Transcript PN2340-2341
692 RMIT v Asher (2010) 194 IR at [14-15]
693 Applicant’s amended closing submissions at [136-137]
694 (2013) 238 IR 1
695 Ibid at [41]
696 Ibid at [42]
697 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
698 See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
699 B v Australian Postal Corporation (2013) 238 IR 1 at [48]
700 Applicant’s amended closing submissions at [108-109]
701 Exhibit R34 at [8-9]
702 Transcript PN6883-6884
703 Australian Manufacturing Workers’ Union v Berri Pty Ltd[2017] FWCFB 3005
704 See for example clause 34.7(a)(ii) in relation to accident pay and clause 52.2(d) in relation to long service leave
705 Transcript PN2576
706 Transcript PN1036 and PN1037
707 Transcript PN992-995
708 Transcript PN1031
709 Adapted from Exhibit R23 at [14] except where otherwise referenced
710
Printed by authority of the Commonwealth Government Printer
Transcript PN1245; Exhibit R23 at [14.4]
711 Exhibit R18, Annexure SB-3
712 Exhibit R4, Transcript PN234
713 Exhibit R18 at [33]
714 Transcript PN226
715 Adapted from the witness evidence of Murray Kennedy
716 Exhibit R1; Transcript PN 279
717 Transcript PN166 and PN228
718 Transcript PN167
719 Transcript PN170
720 Transcript PN168
721 Transcript PN216
722 Transcript PN201
723 Transcript PN205
724 Transcript PN6087
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