Michael Luchow v Southern Health

[2012] FWA 5766

[2012] FWA 5766

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Luchow
v
Southern Health
(U2012/5614)

COMMISSIONER GAY MELBOURNE, 18 OCTOBER 2012

Termination of employment - arbitration.

[1] The following decision, now edited and supplemented, was given at the conclusion of proceedings on 7 June 2012 in Melbourne. Mr Luchow (the applicant), appeared on his own behalf and Mr N Harrington, of counsel, appeared by permission for Southern Health (the respondent).

[2] “I am going to give a decision in this matter now rather than reserve the decision. The reason for doing that is that to which I adverted some time ago during the proceedings, and that is, should the decision be reserved, I regret to say that there would be quite a lengthy delay and it does not strike me as very helpful for the parties, particularly applicants in these cases, if there is not a decision given as soon as possible. But the price, really, of giving a decision straight away, is that it is not possible to have the benefit of transcript and it is not possible to deal with all the contentions in the detailed way that is otherwise done.

[3] But I do hope that anyone who has observed the case - that is, the parties themselves - will have realised the close attention that has been paid to the circumstances surrounding this application and all the material that has come in. This is because it has been given close attention even though it is true that Mr Luchow is unrepresented and it is likely that some parts of the case that might have been the subject of some toing and froing were not dealt with in the quite the normal way. Nevertheless, every attempt has been made, I think, by me and possibly also by Mr Harrington of counsel, appearing by permission, for Southern Health, to have any deficit that procedurally might attach to Mr Luchow not being represented met; that is, dealt with, so that there cannot be said to be a procedural deficit impinging on the hearing of the case.

[4] There are some preliminary matters that must be considered and they are set out - and I am going to rely on the initial outline. I am going to do this in several instances. I am will follow Southern Health’s outline of argument, Mr Luchow, because I know you have that and it may help you in following these reasons. So, the initial jurisdictional points about which Fair Work Australia had to be satisfied before dealing with an application made under this provision of the Fair Work Act 2009 (the Act) are that the person who makes an application has to fit some categories. There has to be - and this really goes to establish jurisdiction - the person has to be protected from unfair dismissal and this is dealt with in s.382 and I do find that Mr Luchow is a person protected from unfair dismissal because in my view the modern award applies and equally certainly there is an enterprise agreement which applies.

[5] This is not a case where s.388 intrudes because it simply does not. Southern Health is not a small business. There is no question of redundancy and in my view there was a dismissal pursuant to s.385A and 385 is a conjugation of these prerequisites or necessary conditions, about which I do not want to say anything else. The contested s.385 element, is of course the s.385(b) subclause: "The dismissal is harsh, unjust or unreasonable" - because an unfair dismissal is defined by the Act as having the characteristics (that I have not read out) and being harsh, unjust and unreasonable. It is the submission of Southern Health that that element is lacking, because the dismissal cannot be said to have been unfair in the broad sense. As a result of those things it is said that I am able then to go on and consider whether the dismissal is one which can be said to be harsh, unjust or unreasonable.

[6] There is no need to summarise the element of the submissions which was dealt with in this way: that is, the parties were advised by me that I was proposing to deal initially with the matter of the fact of harshness, unjustness or unreasonableness and then move later, should it be necessary, to the Division 4 elements of such an application: that is, remedies that would be then properly available; if there was such a finding.

[7] To understand these reasons one has to know quite a few things. One has to have an understanding of the narrative of events. They have some complexity because there are the events that occurred at Southern Health and one has to appreciate the way the narrative falls. One has to appreciate the temporal linkage of those events with ‘external’ events that had occurred and continued to occur, involving the Nurses and Midwifery Board of Australia as it originally was, then forming - as far as I can see - part of AHPRA, the Australian Health Practitioner Regulation Agency.

[8] I am going to deal with some elements of the narrative because it is necessary to establish the framework of events to make coherent the necessary findings I am going to make. But first, I am going to briefly essay through s.387, really, Mr Luchow, for you. You will know that s.387 is the section of the Act with which I am now dealing and it sets out criteria for considering harshness, unjustness or unreasonableness and it indicates that “in considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, Fair Work Australia must take into account”, some things then set out. They are (I am going to really skip through these), the first one is whether there is a valid reason which relates to the person's capacity or conduct, including its effect on the safety and welfare of other employees and secondly, whether the person was notified of that reason, whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person and then a point which deals with having a support person present. As I go through, perhaps I will not repeat all these, but it is the case that the evidence establishes that a support person was offered to you and it was not taken up, so s.387(d) does not have any effect. Then - if the dismissal related to unsatisfactory performance by the person - this is subsection (e) - 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.

[9] I should say Southern Health is a large employer and they do have specialists and the specialists were there and they do take advice. I have had regard for the size being such as to be likely to impact on the procedures. There is no procedural imperfection which I think intrudes in any significant way. Subsection (g) is the section which is an allied section: 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 - something I have had regard for - and (h) is the general catch-all, that is - any other matters that Fair Work Australia considers relevant.

[10] It is necessary for me along the way to make jurisdictional findings: findings of fact as to whether some things happened and it is for that reason that I am going to deal with the narrative because I am going to attempt to make the necessary findings of fact which support further findings and conclusions about conduct and so on, which I have reached. I will say this is - it might sound platitudinous - but I really have paid close regard to what has been put and I am not going to now recite everything that has been said about all the elements of the case and some of the argument that has been put, somewhat one-sidedly, but put, particularly by Mr Harrington. Also Southern Health has responded in relation to the key elements that have been thought relevant by Mr Luchow. Non-repetition now does not mean that I have failed to have regard for something.

[11] I have taken the opportunity - even though I am giving these reasons shortly after the case concluding - to re-read the submissions and the outline provided by Mr Luchow as a statement in response to the employer's response. So there was earlier some material filed pursuant to the directions and then additionally - and I think very helpfully - Mr Luchow has set out, as I have just said, his response to the response and that is Exhibit SH1. I have taken the opportunity to reread that. I do not quite know why it is Exhibit SH1 but

[12] MR N. HARRINGTON: Sorry, Commissioner: is that the typed notes? Is that what you are

[13] THE COMMISSIONER: Yes, that is why it's there.

[14] MR HARRINGTON: My instructor typed up

[15] THE COMMISSIONER: That's right.

[16] MR HARRINGTON: It wasn't actually - I know you are giving reasons and I interrupt - but it wasn't actually a response to our submissions. I think it was just a typed-up version of the initial applicant's outline of his case.

[17] THE COMMISSIONER: All right, thanks, Mr Harrington. Yes it is Exhibit SH1, because it is the - and I really might have remembered this

[18] MR HARRINGTON: I see, yes.

[19] THE COMMISSIONER: But it is helpful material but it is certainly responsive to something and it says, "This is my statement in response "

[20] MR HARRINGTON: Sorry, Commissioner.

[21] THE COMMISSIONER: That's all right.

[22] MR HARRINGTON: So it's a response to our - I think it's the F3 that we filed.

[23] THE COMMISSIONER: Yes.

[24] MR HARRINGTON: That's what it is responding to.

[25] THE COMMISSIONER: Yes.

[26] MR HARRINGTON: I apologise.

[27] THE COMMISSIONER: But it is a point well made; that it does not purport to be Mr Luchow's response to the outline which was provided by Southern Health and which has an executive summary and is of 14 May, and of 26 paragraphs. But I have taken it to be, nevertheless, a distillation of Mr Luchow's approach to the case and of some real importance. I have taken it to be Mr Luchow's attitude to the events that have affected him so much and to be part of his account of what he did. Of course what he did was the subject of his own evidence.

[28] It is necessary to indicate the relevance of the material with which this case is so vitally concerned from AHPRA and (without going unnecessarily into the earlier narrative) it is the case also that Mr Luchow came to Unit 2 at Southern Health in what had to be said to be difficult circumstances. This was because he had moved owing to there having been a ‘difficulty’ in relation to his professional practice, where his employer had sought for AHPRA to consider the position - with which I will be dealing in some more detail - that Mr Luchow was paid at nurse grade 3 rate but he was under the supervision of a nurse grade 3 and was performing duties of a nurse grade 2.

[29] Because of the earlier difficulty which had arisen - there is no good purpose in trawling through that - there was a professional standards panel convened on 23 November 2011. That was heard by a three-person panel and a decision was given on that day and that decision was reduced to writing on 21 December and - I am not going to give the exhibit numbers for these things because they are attached to various pieces of evidence in this case. The decision of 21 December 2011, signed by Dr Driscoll, indicates that Mr Luchow would be provided with a copy of the determination and similarly a copy of the determination will be provided to the notifier. It is part of the history of the case that through an oversight the arrival of the determination was misplaced or did not come to notice as it should have at Southern Health and Southern Health have made that quite clear in an open fashion.

[30] Mr Luchow received correspondence of 3 January setting out the result of the panel hearing. It set out four conditions. Some went to additional training - in a formal sense, several courses; there needed to be clinical supervision sessions; there had to be reports every three months for 18 months and they had to be signed by the director of nursing or a senior manager. They were not permitted to be from a nursing agency. And there was a supervision condition. It was that Mr Luchow was to work under the direct supervision of a senior psychiatric nurse of grade 4 or above for 12 months. Then there is the letter which went the next day - that is 4 January - to the acting director of nursing of Southern Health, and that was enclosing the decision. There was then - it seems in the normal progression of the work of AHPRA - a compliance officer appointed, who sent out some things to Mr Luchow of 17 January. One of the things that was highlighted in that correspondence was that Mr Luchow was obliged to advise any current employer or any prospective employer of any conditions imposed on the registration.

[31] It is of interest to note - this is backtracking slightly - that the reasons for the determination sent to the hospital, to Southern Health and to Mr Luchow did not contain - either as an appendix or in some other fashion - anything in relation to the obligation highlighted by Mr Statieri, the compliance officer, on 17 January. While dealing with the correspondence from AHPRA - and of course events had overtaken things by this stage at Southern Health - but on 13 February, in response to the queries from Southern Health as to the meaning of the condition, there was clarification from Mr Statieri. It was that Mr Luchow must work under the direct supervision of a senior psychiatric nurse of grade 4 or above for 12 months and that was given the meaning, the correspondence was said to have confirmed, that a senior psychiatric nurse of grade 4 or above must be present at all times, directly supervising Mr Luchow for a period of 12 months.

[32] So that was the position which obtained until 27 March, when in response to correspondence earlier from Mr Luchow, there was communication from AHPRA, from Ms Kelsey, the Director of Notifications, indicating that there was an amendment to the condition and it was:

“You must work under the supervision of a senior psychiatric nurse of grade 4 or above for 12 months.”

[33] Finally, on 5 June there is correspondence to Ms Harmer, the acting senior nurse of the Southern Health Mental Health Program, from Sylvia Lewis, the manager of the Notifications Department, that dealt with the meaning of the condition and advising there had been a meeting of the Board and that there had been a change to the condition and the condition then was that - perhaps I will read the sentence:

“The Australian Health Practitioner Regulation Agency confirms that this condition contemplates that a senior psychiatric nurse of grade 4 or above is present on ward or within Mr Luchow's immediate area of work for a period of 12 months.”

[34] By then, Mr Luchow had been dismissed on 17 February and the case made for the dismissal - and I think perhaps it is an easier way of dealing with the key element of the case - is that serious misconduct had occurred, because Mr Luchow was under an obligation to advise his employer of the fact of the condition, which was in a very real sense a limitation on his capacity to practise. Given the nature of the work and the formality of what had occurred before the Board, there was, as I have said, an obligation to appraise the employer of that condition and the corollary of that of course was not to take up duties and not knowingly breach the condition.

[35] The second element of the case with which I will be dealing is that advanced by Southern Health that, by virtue of Mr Luchow not having discharged that obligation, there is a breach of trust and confidence brought about in the employer such that there cannot be a continuation of the contract of employment, so serious was the misconduct and the breach which was involved by those things.

[36] Mr Luchow contends that immediately after the 23 November 2011 hearing he did speak with Ms Meiklem, his nurse unit manager, and in a general way, “in broad strokes” he said, did appraise her of the position that his work continued to require supervision, that he was contesting or was going to contest the determination of the Board and that in some respects - not that he told Ms Meiklem this - there was a lack of clarity or a lack of certainty in his mind as to what had happened on the day.

[37] Perhaps in giving that summary I have insufficiently emphasised that Mr Luchow's case is that he did advise of the ongoing supervisory regime and there is a serious contest about that. It is very likely, in my mind, that the fact that Mr Luchow wished to contest the findings and the determination, meant that in this respect his view was that the determination was, in some sense, not binding or not of immediate effect. It is a vital part of Southern Health's case that over the days that followed - and I am not going to attempt to set out the detailed narrative - but Mr Luchow did take up shifts and he worked. They, the shifts, are set out and particularised and it is the very strong submission of Southern Health that by not highlighting the condition required, (that he be directly supervised at all times by a grade 4 or more senior psychiatric nurse), there was a very serious breach by Mr Luchow in his obligation to be open and candid with his employer. But that led also then to other problems for Southern Health, because it is very likely that Southern Health then unknowingly breached its practising obligations in providing the service that it provided.

[38] Mr Luchow gives a response as to his reception of the reasons: that he was soon going on leave, that he had other difficulties over this period - I am not going to be too particular about this - involving serious family difficulties, which impinged on his reception of a number of pieces of correspondence. Some attention was given to what Mr Luchow physically did with the letter he received after 3 January from Mr Smith, the legal and hearings officer of AHPRA, because that communication made very clear what the working regime was that Mr Luchow had to work under or to which he must subscribe. Mr Smith asked Mr Luchow in that correspondence - and Mr Smith emphasised this part of his communication by putting it in bold type - the first three words were not in bold type: “Could you please provide details of your current employer” and then the bolding stops - “as required by section 132 of the national law to enable me to forward the finding and determination to your employer”.

[39] I have really formed the view that Mr Luchow, as he himself advises as part of his case, was conscious - he certainly was aware from that point - that the employer was to be made aware by AHPRA. But Mr Luchow was already aware of that obligation, because at the time of giving the determination, Dr Driscoll had said so; that is, that a copy was to be sent to the employer. It is part of the Southern Health case that Mr Luchow was deliberately inert or wilful in his failure to deal with these pieces of correspondence. Emphasis is given, that by working some shifts on 7 and 8 January 2012, Mr Luchow was aware of that 3 January letter to which I have just referred. Southern Health submits that there was then a conscious breach by Mr Luchow of what is termed the direct supervision condition over those next few days.

[40] Mr Luchow then went on leave and while he was on leave, the 17 January correspondence arrived, I regret if this is repetitious, that is from Mr Statieri, indicating that Mr Luchow was required to advise the current employer of the conditions imposed on the registration. The Southern Health case is - again using the closing submission as an outline to deal with the chronology - that Mr Luchow is likely to have opened the letter at about 31 January and yet took no step to advise his employer. I am ever mindful though that it is Mr Luchow's position that he had advised Ms Meiklem in the broad way earlier described on 24 November in the previous year. But of course this is now moving into February and Southern Health emphasised that up until 8 February Mr Luchow had not made contact with the unit manager, Ms Meiklem, to tell her of the direct supervision condition. For Mr Luchow the case is made more difficult (in the Southern Health submission) because it was Ms Meiklem that made first contact with Mr Luchow on 7 February as by that stage the letter had arrived; not only had it arrived but it had finally been opened by Southern Health.

[41] It had been directed to Ms Harris' notice - belatedly, it seems - and it was then taken up by Ms Meiklem, who raised the issue of the conditions. I am not going to go through all the meetings that then occurred or the several meetings that then occurred. But a critical one in relation to the evidence is that there had earlier occurred a meeting between Mr Luchow and Ms Meiklem on 9 December. It is recorded in Ms Meiklem's statement - which has come into evidence - that on 7 December Mr Luchow requested a meeting to discuss the outcome of the hearing held on 23 November. The meeting occurred on 9 December and I am just going to spend a moment or two on this. I think it cannot be doubted that whatever uncertainty that could possibly have been said to exist at 23 or 24 November 2011 could not be said to still exist when that meeting took place because Mr Luchow had had every chance to consider the events of 23 November.

[42] But in any event, Ms Meiklem's statement is that he said to her that, "The board feels I still need supervising" - and this has a meaning for Ms Meiklem because Mr Luchow already worked under the supervisory regime commented upon earlier and, of course, Mr Luchow knew that Ms Meiklem was well aware of that. In any event, that is the meaning that Mr Luchow gave to it - to his comment. Ms Meiklem's statement is:

“I understood that Mr Luchow said that he was to continue to work under the same arrangements that he had worked under since April 2009. He said nothing to me to indicate otherwise. Had he said to me that a condition had been imposed on his registration requiring direct supervision by a grade 4 Nurse, I would have immediately addressed the issue. That was a real and significant change.”

[43] Ms Meiklem indicated in her evidence that she was surprised by the need for ongoing supervision and her statement takes up that point. Ms Meiklem says:

“I recall asking Mr Luchow why AHPRA had determined that supervision should continue for such an extended period of time. Mr Luchow did not provide any real response to this inquiry. He did not say to me at any time during this meeting that there had been any change to his registration or current ability to practice. He did not mention any restriction on his ability to practice. He did not say to me that he required ‘direct supervision’ from a Grade 4 or above psychiatric nurse.”

[44] That is the end of that quote. But Ms Meiklem goes on and says that Mr Luchow did mention, did particularise that the three-monthly report was to be supplied and that there were education sessions. So it is Ms Meiklem's evidence that what was omitted was the new condition. Ms Meiklem also acknowledges that Mr Luchow had indicated to her that he did not agree with the conditions and he was going to contest them and he had commenced some appeal. Mr Luchow's response is telling because in Ms Meiklem's evidence he emphasised his concern that he did not want conditions linked to his registration. I think this highlights that registration for a practitioner and a senior nurse - any nurse - is vitally important. Again, Ms Meiklem's evidence indicates that she made the point to him that it seemed to be taking a long time - for AHPRA, that is - to resolve the issues. Ms Meiklem of course had in mind the earlier difficulty which had seen Mr Luchow effectively demoted and subject to a supervision order when he arrived at Unit 2.

[45] I will come back to this, but it is a key point of Ms Meiklem's evidence, that the failure at that meeting to disclose the condition represented a pivotal moment, because it was a time when an opportunity was given for Mr Luchow to be candid and Mr Luchow did not take it up. It is probably necessary to add, for completeness that - and I do not think this is in contest - Mr Luchow had come to the Banksia unit and then later unit 2 in difficult circumstances and had been admitted to the unit even under the supervisory obligation, which cannot have been too easy. It cannot have been easy for Mr Luchow either, I might say, but it cannot have been easy at times for the unit, but his presence had been accommodated and he welcomed into the unit. It was this position which still prevailed insofar as Ms Meiklem's evidence is concerned - that flexibility to the greatest extent that it was possible was characteristic or a feature of the way in which the people worked in that section, where there were particular needs that the staff had, and that was not contested by Mr Luchow.

[46] Mr Luchow goes on leave after that meeting. Perhaps my narrative got ahead of itself. I return to Ms Harmer opening the 17 January letter - acting as she was as the senior nurse - and then telling Ms Meiklem of the conditions. Then of course the pace quickens because the work performed by Mr Luchow is in an environment which must be a very heady environment indeed, where this special help is given to young people, suffering the mental health difficulties that by virtue of their addictions they have to endure, on a rotating shift basis. In that very busy setting one expects there is competition for the 25 or 26 beds that are involved. It is that capacity, for ‘the condition’ to, in any real sense, be made to operate within those strictures, that then affects Ms Meiklem. There was then a further meeting on 8 February.

[47] Ms Harmer and Ms Meiklem met with Mr Luchow. When asked to explain how it is that he had worked over the shifts involved after the hearing and why he had not informed Ms Meiklem, Mr Luchow made a number of points. One was that he had started the appeal process, that he had not taken in all the information and that during the contesting of a finding by the Board there was not an obligation to adhere to the restrictions. There was then a further meeting on 17 February. Perhaps I should say, for completeness again: I have already dealt with the question of a support person. When taxed with not having raised in sufficient detail the fact of ‘the condition’ and its effect on the work, with Ms Meiklem, Mr Luchow's response was that he did not feel that he had intentionally withheld information.

[48] It is very likely in this case that Mr Luchow did feel that the effect of the deliberation of the Board was binding on him and yet somehow was rendered ineffective while he felt that it was harsh, subject to appeal and when he had made contact with AHPRA. There are, in my view, insurmountable problems with that position.

[49] It is necessary to make findings in relation to conflicts in the evidence. Where Ms Meiklem's evidence conflicts with that of Mr Luchow, particularly as to advice on 24 November and then in their December meeting and where there is any conflict subsequently - although the degree of conflict does subside - I have not any hesitation in accepting the evidence of Ms Meiklem. Ms Meiklem presented as having a recollection of these things, as a conscientious witness in every respect, of having no ill-will towards Mr Luchow other than a rationally founded disappointment that the confidence that she had reposed in Mr Luchow had not been returned by the frankness which she had thought was - if I understood her evidence - rightfully hers as a result of the way Mr Luchow had been treated under her supervision in the unit.

[50] There are some conclusions necessarily reached. One was that there was, after these events, a lack of confidence and trust in Mr Luchow because he had not advised her (Ms Meiklem) in a way sufficient to let her know what the Board had decided, that ‘the condition’ existed and it had to be accommodated. There is no doubt that that then placed Southern Health - it was only after time that it was going to realise this - in a particularly invidious position. I am not going to attempt to speculate as to why it was that there was not sufficient confidence within Mr Luchow to have not been franker. It is speculative for me to do that. Elsewhere in the material there is evidence about the nature of the work and how it is performed and the work - the staffing in the unit and that presently the supervisory conditions simply cannot be given effect.

[51] I am not going to talk about the remedy elements because I have not been addressed on that, but I am - and this is known to Mr Harrington and Mr Luchow. I am of course aware of the work and how it is performed. I have not got one eye closed in that respect. The conclusion reached by Southern Health was that Mr Luchow could not perform the inherent requirements of the job, partly because of that staffing, or very much because of the staffing situation and the need for such a high level of supervision. That has to be understood, even in light of the more recent change from AHPRA and the alteration to the supervision because - I would not want it thought that this is lost on me - Ms Meiklem is not available on the ward; as a grade 4 nurse, Ms Meiklem is involved in a wide range of significant management responsibilities which take her away from the unit; all of which underscores the impact of ‘the condition’.

[52] This is where I am not dealing so much with remedy, but the impact of the condition was so great, when it is understood in the context of the work as it is actually performed. As a result of accepting Ms Meiklem's evidence when it conflicts with that of Mr Luchow, I have to find that there was a valid reason for the dismissal which related to the person's capacity or conduct and the valid reason included the failure of Mr Luchow to advise Ms Meiklem of the condition. Mr Luchow was advised of that fact at the termination interview. It is the evidence of Ms Meiklem that at the termination interview Mr Luchow continued to not agree that he required direct supervision and, rather, linked the fairness or otherwise of supervision with the decision.

[53] Southern Health indicated to Mr Luchow the extent to which the fact of the restriction and the requirement for supervision made the employment very difficult and Ms Meiklem indicates that she advised Mr Luchow that those things were unacceptable: the failure to advise, the fact of continuing to perform duties and failure to explain why it was that he had not satisfactorily explained his failure to contact Ms Meiklem; that those things were unacceptable; that he had worked in a manner which was in breach of the restriction and that it was serious misconduct for him not to have disclosed the restriction to Southern Health. There was an adjournment of that meeting for Southern Health to consider its position, but not before Mr Luchow had been asked whether there was something else that he wanted to say. I am of the view that Mr Luchow was given - having been notified of the reason within the meaning of s.387(b) - an opportunity to respond to those reasons, which is the s.387(c) point.

[54] I do not believe s.387(e) arises. There had not been an earlier failure to advise of restrictions, so to that extent the unsatisfactory performance and matter of whether a person had been warned about such unsatisfactory performance prior to the dismissal is not in my view relevant.

[55] There is some question, certainly in Mr Luchow's mind, about whether a decision had already been made. Perhaps it is academic, but I have in that respect accepted the evidence of Ms Meiklem that that is not so and that Ms Meiklem remained open to positively consider anything that might have been said in the relevant meetings.

[56] For all those reasons, in my view, there was a valid reason and as a result of that finding I do not consider it to have been - however serious, ever so regrettably, are the consequences for Mr Luchow - I do not consider that it was harsh, unjust or unreasonable for Southern Health to come to the conclusion that it did, but in any event, I am not making a determination about that, that is, whether it was reasonably open to Southern Health to reach the conclusion it did. Rather, it is, that on all the information before me at arbitration yesterday and today, I do not find the termination to be harsh, unjust or unreasonable and for that reason the application must be dismissed. An order to that effect will issue shortly. I now adjourn.”

[57] An order to that effect is found in PR526033 dated 18 October 2012.

COMMISSIONER

Appearances:

M Luchow the applicant.

N Harrington, of counsel, by permission, for Southern Health.

Hearing details:

2012.

Melbourne:

June 6, 7.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR526032>