Ms Aysen Olcayoz v Goulburn Valley Health
[2011] FWA 413
•25 FEBRUARY 2011
[2011] FWA 413 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Aysen Olcayoz
v
Goulburn Valley Health
(U2010/6735)
COMMISSIONER CRIBB | MELBOURNE, 25 FEBRUARY 2011 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Ms Aysen Olcayoz (the applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Goulburn Valley Health (the respondent) was harsh, unjust or unreasonable. The applicant is seeking a remedy in respect of her dismissal.
[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. Hearings took place in Shepparton on 15 and 16 June and 4 and 5 August 2010.
[3] The applicant was represented by Mr M. Harding, of counsel, and the respondent by Mr G McKeown, of counsel.
THE EVIDENCE
[4] Considerable oral evidence was given over the course of the four day hearing, together with a comprehensive amount of written material. In the interests of efficiency and timeliness, not all of the material before me will be summarised in the decision. However, it must be emphasised that everything that has been put before me has been carefully considered and taken account of in reaching the conclusions set out in this decision.
[5] The central focus of this case are the events that took place on 9 February 2010 at the Goulburn Valley hospital involving Ms Olcayoz. Therefore, the summary of the evidence will primarily deal with those events.
APPLICANT
[6] With respect to the sequence of events that took place on 9 February 2010, it was Ms Olcayoz’s evidence that:
In operating theatre 3
[7] Dr Pavel instructed her to go and get Ms Doyle because he needed her help. 1 She had not offered.2 Ms Olcayoz went out and found Ms Doyle, standing at the front desk. She told her that Dr Janda would like her help in theatre. Ms Doyle asked “what for?” Ms Olcayoz replied “because he needs your help”.3 Ms Doyle did not reply.4 Ms Olcayoz then went back into theatre to scout for Ms Rabl who was scrubbed.5
[8] Ms Doyle followed her into theatre within five seconds and stood at the head of the theatre table next to the spinal trolley. 6 The patient was on the theatre table sitting up with her back to Dr Janda.7 Dr Janda was half a metre away from the patient’s back.8
[9] Some minutes later, Dr Janda asked her for a second time to get Ms Doyle and to tell her not to leave this time. 9 Ms Olcayoz had responded to Dr Janda and said that she would go and get her but could he please tell her not to leave this time.10 Ms Olcayoz had gone out and found Ms Doyle on the phone at the front desk. Ms Doyle had asked her what she wanted and Ms Olcayoz had replied that Dr Janda would like her to come back into theatre as he needed her assistance. Ms Olcayoz had then returned to theatre.11
[10] Ms Olcayoz stated that, in making his request, Dr Janda did not refer to a needle at all and he did not ask her for a spinal needle. 12 He asked her to go and get Ms Doyle.13 Ms Olcayoz indicated that if Dr Janda had asked her to hand him a needle she would have done that but because he had said, go and get the anaesthetic nurse, she had done as she was instructed.14 She stated that Dr Janda had instructed her to do something and she did as she was instructed.15 Ms Olcayoz said that she, together with the other nurses, were under pressure to perform the specific role that each had been designated. She indicated that Ms Doyle should have been there with Dr Janda the whole time.16 Ms Olcayoz indicated that, when Dr Janda asked her to get Ms Doyle, Dr Janda was scrubbed and gowned and the spinal tray was open.17 She confirmed that she had a view of the patient's back and there was no needle in the back of the patient and there was no needle in Dr Janda's hand. 18 Ms Olcayoz confirmed that, prior to leaving the theatre to get Ms Doyle, there was no indication from Dr Janda that he was having difficulty with the anaesthetic procedure.19
[11] After Ms Doyle had returned to theatre, the second time, Ms Olcayoz believed that Dr Janda must have asked her for a spinal needle. 20 She did not hear Dr Janda ask Ms Doyle for a longer anaesthetic needle21 nor did she see Ms Doyle open the anaesthetic needle and give it to Dr Janda.22 Ms Olcayoz stated that she was at the other end of theatre carrying out her own duties and so was not observing what everyone else was doing.23
[12] Ms Doyle then spoke to her in a hostile and angry manner and said “Aysen, the anaesthetic/spinal needles are in the drawer.” 24 Ms Doyle had repeated this twice with her voice getting higher each time.25 On the third occasion, Ms Olcayoz had looked up at Ms Doyle and calmly asked whether they could discuss this later.26 It was Ms Olcayoz’s evidence that she had hoped that in saying that, the matter would be settled.27 However, Ms Doyle had then looked at her, waved her finger directly at her and told her that she (Ms Olcayoz) knew that she was busy and that she could have done this herself.28 She recalled that Ms Doyle was angry and she spoke in a loud voice when she made the last comments.29 Ms Olcayoz also remembered that Ms Doyle had said that she was doing other roles. After Ms Doyle had given the applicant “a serving”,30 she (Ms Doyle) had walked out of theatre into the anaesthetic room.31
[13] It was at this point that the applicant “had lost my composure” as Ms Doyle had undermined her and demeaned and humiliated her in front of her colleagues. 32 It was also in front of an awake patient and her partner.33 Ms Olcayoz explained that Ms Doyle had undermined her in her profession. She had been doing that job for 30 years, was a very senior nurse and a very good nurse. Ms Doyle had questioned her ability and her professional performance in front of others.34 She started trembling and tears welled up.35 She “thought I cannot effectively continue on with my duties”.36 Ms Olcayoz confirmed that she had felt personally humiliated and embarrassed and that was the reason that she had left the theatre.37 She did not describe what had happened in theatre as an argument as all she had said was “can we discuss this later?”38
[14] It was Ms Olcayoz’s evidence that, if Ms Doyle had communicated with her and told her that she had to step out of the theatre and had asked her to cover her or to help Dr Janda, she would have been happy to do so. 39 Ms Olcayoz stated that she could have handed a needle to Dr Janda but said that those were not his instructions.40
[15] As she left the theatre, she was looking at the back of the patient. 41 She had a clear view/direct vision of the patient's back42 and did not see a needle in the patient's back nor in Dr Janda’s hand.43 Neither did she see Dr Janda feel the patient’s back as she was leaving.44 He was just standing there.45 The patient was still sitting up before she left the theatre.46 Surgery had not commenced before Ms Olcayoz left the theatre.47 The spinal anaesthetic had not started when she left.48 If the needle had been in the patient's back, she would have done her utmost to keep her composure until Ms Doyle had returned.49
[16] Ms Olcayoz denied that she had lost sight of her primary role in taking care of the patient. She said that she was professional and that, she had followed the standards and reported her actions to her superior before she left. 50 She said that she had not done anything wrong on 9 February as she had taken all the right steps and procedures to dismiss herself from the role.51 Ms Olcayoz did not agree with the proposition that she had a higher duty to the patient as compared with reacting to her own emotions whereby she thought that she was compromising her performance and therefore patient care.52 She denied that, when she had left the theatre, she was compromising her professional duty to the patient as, as far as she was aware, the procedure had not commenced.53
In anaesthetic room
[17] Ms Olcayoz went into the anaesthetic room and said to Ms Doyle that “what she had just subjected me to was unacceptable and that I could not continue my job effectively, and that I had to leave”. 54 Ms Doyle tried to stop her but Ms Olcayoz said that she had to go and went to the change room.55 She stated that she ignored Ms Doyle’s request because she felt she could not effectively perform her duties any more.56 Ms Olcayoz said that she recognised that she could not go on with her duties and so had reported it to her immediate supervisor, Ms Doyle. She stated that she had left the theatre after taking the right actions and that it was not up to her to make the right decision after that - that was for Ms Doyle.57
[18] Ms Olcayoz said that at no stage did she and Ms Doyle have an argument in the anaesthetic room. 58 She stated that, because she was upset, her voice may have been raised.59 How that sounded to other people was their interpretation.60 Ms Olcayoz explained that it was not an argument because there was no exchange or debate between herself and Ms Doyle.61 She had said to Ms Doyle what she felt as a result of what had happened in theatre. She had also told her that she felt unfit to work as she could not perform to standard and because of that she had to leave.62 If she had raised her voice, she agreed, it would have been heard in the theatre and it could have been interpreted as an argument. However, she maintained that she and Ms Doyle did not have an argument.63 However, it could not have been described as sweetness and light.64 Ms Olcayoz stated that it was the first time she had walked out of theatre in that state.65
In change room
[19] Ms Olcayoz did not expect Ms Doyle to follow her into the change room 66 but she came in about 15 -- 20 seconds after she had walked in. Ms Olcayoz said that she (Ms Olcayoz) was trembling and crying. She told Ms Doyle that she wanted to go home. Ms Doyle said that she did not want her to go home because she was so upset. Ms Olcayoz told Ms Doyle that she needed to get back into theatre because of the staffing situation as she was aware that the theatre was two allocated nurses down.67 Ms Doyle replied that she had taken care of it before she had come in. Ms Olcayoz said that she had taken that to mean that Ms Doyle had arranged relief and not to worry about it.68 Ms Doyle suggested that Ms Olcayoz leave the department and compose herself and then report back to her about whether she could continue with her duties.69
Operating theatre 3
[20] After 30 minutes, Ms Olcayoz returned to theatre and congratulated the patient on the arrival of her baby. 70 The dressing was being put on the wound when she returned.71 She also thanked Mr Walker whom she assumed had relieved her.72
Scout nurse role
[21] It was Ms Olcayoz’s view that the scout (circulating) nurse often left theatre to get supplies and then returned immediately. If the scout nurse was going out for a specific period of time, they would tell the team leader the reason they are leaving the theatre. 73 Ms Olcayoz agreed that, with her experience, she could step in and out of the scout and scrub nurse roles but indicated that it was “if you are designated to it”.74 Ms Olcayoz stated that the scout nurse does not provide assistance to the anaesthetic nurse. She said that the role of scout nurse is to assist the scrub nurse and the surgeons.75 She stated that the scrub nurse cannot assist the anaesthetic nurse or the scout nurse and each has their own separate role to perform.76 She stated that staff were assigned to specific roles and each person concentrated on doing their own designated role. However they functioned as a team and if requested would cover for lunch breaks or undertake other duties as requested.77 She agreed that, in theatre, the primary objective is the care and welfare of the patient.78
[22] Ms Olcayoz gave evidence that the normal procedure is for Dr Janda to come into theatre with his anaesthetic nurse and they discuss the case. He communicates with his anaesthetic nurse as to what he needs for that particular procedure. It was her opinion that it was absolutely crucial that the anaesthetist and the anaesthetic nurse work as a team together and that the nurse should not leave him. 79 It was Ms Olcayoz’s view that, although the primary issue in the theatre is the welfare of the patient, if an employee is unwell and not fit enough to perform up to standard, therefore compromising patient care, the procedure is that that person reports to their team leader and says that they have to leave because they are unwell and the team leader takes care of their replacement.80 It was stated by Ms Olcayoz that it was not her responsibility to arrange replacement staff - it was her supervisor’s.81 Ms Olcayoz stated that it was not her position to stop or delay an operation until all nursing staff were ready. Ms Carr, the Nurse Unit Manager (NUM), or Ms Doyle (Floor Manager) were able to make that decision.82
[23] Ms Olcayoz had thought that the warning regarding smoking in July 2009 was verbal rather than written as she had not received a copy of it. 83
Meeting on 16 February
[24] It was confirmed by Ms Olcayoz that, after the incident, she received a letter from Ms Lewis inviting her to attend a meeting on 16 February 2010 with a support person. 84 She agreed that, at that meeting, the hospital stated plainly their concerns about her behaviour.85 Ms Olcayoz said that one of the allegations was that she and another nurse had left the theatre during a spinal anaesthetic and she had therefore left the theatre without a scout nurse.86 She confirmed that she was suspended with pay for one day.87 It was Ms Olcayoz’s recollection that Ms Lewis was very angry and hostile during the meeting and had thrown a number of allegations at her. She recalled that she was not given much of a chance to say anything.88 Ms Lewis told her that she wanted her to put it in writing and to give it to her on the 18th February 2010.89 Ms Lewis was not interested in hearing her version of what had happened.90 She gave her the impression that she did not want her to say anything.91
[25] Ms Olcayoz confirmed that Ms Lewis had given her the option of resigning and that Ms Lewis had also said that if she did not resign, she would have to consider reporting her to the Nurses Board. 92
[26] Ms Olcayoz confirmed that, on 13 April 2010, she had been offered the opportunity to apply for an advertised nursing position when one became available outside of theatre. She would not be allowed to go back to theatre, would be issued with a first and final warning and be classified as a RN Division 1. 93 She did not accept it as she had specialised in theatre for the past 30 years. In another clinical area, she would be a novice and was therefore not prepared to accept any other role than clinical nurse specialist in theatre.94
[27] Ms Olcayoz confirmed that she had written to her local Member of the Legislative Assembly (MLA) for Shepparton 95 to try and put pressure on the hospital. This was because she had heard that the medical staff were pressuring the hospital to give Ms Doyle and Ms Olcayoz their jobs back. She stated that she still stood by the comments that she had made in that letter.96 She stated that she had given an interview to the local paper but had cancelled it, on reflection.97
[28] Ms Olcayoz, at the time of the hearing, had not sought work as she had had a relapse with her bipolar condition since the incident and so has been unable to look for work. 98
[29] Income earned since dismissal - Centrelink - $3517 (to June 2009). 99
DR STEGEMAN
[30] It was Dr Stegeman’s recollection that the patient was on the bed facing her and Dr Janda was behind the patient. 100 She stated that Dr Janda became agitated because there was no anaesthetic nurse in the room. Dr Stegeman confirmed that Dr Janda had asked where the anaesthetic nurse was, requesting her assistance and that he had asked Ms Olcayoz to go and get Ms Doyle.101 She recalled that Ms Olcayoz came back into theatre first and then Ms Doyle.102 Dr Janda did not ask Ms Olcayoz to get him a spinal needle.103 Dr Stegeman remembered that, when Ms Doyle came in, she heard Dr Janda ask her for a needle.104 She did not know whether it was a second needle and she did not hear Dr Janda ask for a second or longer needle.105
[31] Dr Stegeman recalled that, when Ms Doyle came in, she raised her voice and was quite clearly agitated. 106 She thought that Ms Doyle had repeated something to Ms Olcayoz three times and that it came out quite abruptly.107 It was her understanding that an issue arose between the two nurses because Ms Doyle was trying to do three roles that morning and she just could not. She was the team leader, floor manager, and the anaesthetic nurse and she had no time to do all that.108 Dr Stegeman said it was obvious that Ms Doyle was not coping, and so she probably snapped, her voice was raised a little bit and she was provoking Ms Olcayoz.109 It was her recollection that Ms Olcayoz had responded quite calmly and did not raise her voice in theatre.110 Dr Stegeman stated that Ms Olcayoz looked hurt but that she did not say anything.111 She recalled that, after the exchange between Ms Doyle and Ms Olcayoz, she saw Ms Doyle’s face and recalled that she looked angry and was definitely short and abrupt.112 Dr Stegeman said that Ms Doyle then left the theatre.113 Dr Stegeman did not describe the exchange between Ms Doyle and Ms Olcayoz as an argument.114
[32] Ms Olcayoz left the theatre almost straight after Ms Doyle. 115
[33] Dr Stegeman said that, before Ms Olcayoz left the room she did not see Dr Janda insert the spinal needle because she could not see that from her position. 116 However, she stated that there was not enough time between the exchange between Ms Doyle and Ms Olcayoz and them both leaving for Dr Janda to have proceeded with the anaesthetic. She said that, after they had left, the anaesthetist had then performed the procedure.117
[34] After Ms Doyle and then Ms Olcayoz left the theatre, she started talking to the patient’s partner. 118 She recalled that the partner was making a joke about what was happening in theatre and she tried to interact with him to take a bit of tension away.119 It was Dr Stegeman's recollection that the situation was a bit awkward.120 She recalled that the patient was bending over and so it was not possible to communicate with her at that point.121 Dr Stegeman stated that she did not hear an argument occurring outside of theatre as she was talking to the patient's husband at the time.122
[35] Dr Stegeman stated that after the patient was anaesthetised she left the theatre and went to get scrubbed. 123 It was her view that the anaesthetic procedure would start when the needle went into the patient's back.124
[36] Dr Stegeman stated that, ideally, there should be three nurses in the theatre continuously but said that that was not the case in reality. She said that there were always three nurses rostered in theatre. 125 She stated that, more than half of the time, one of them at least was out of theatre and even two.126 Dr Stegeman stated that there were never all three nurses in theatre, hardly ever.127 She said that probably 50% of the time, there are not three nurses in the theatre at the time of a procedure.128 Dr Stegeman said that there was usually a good explanation as to why the scout and anaesthetic nurses were walking in and out of the theatre all the time.129 Dr Stegeman stated that she would expect the scout nurse and the anaesthetic nurse to assist each other.130 Dr Stegeman stated that the only one who could definitely not leave was the scrub nurse.131 Further, it was her view that if a nurse became so emotional that they could not continue, they needed to leave and be replaced.132 Dr Stegeman believed that it was highly unusual for there to be an argument between two theatre nurses with both leaving the theatre whilst there was a procedure going on.133 She indicated that such a situation could have an effect on patient care.134
[37] Dr Stegeman stated that she did not perceive any danger or feel unsafe after Ms Doyle and Ms Olcayoz left the theatre. 135 She did not believe that it was a very serious situation and she did not feel that the patient’s safety was at risk.136 Dr Stegeman described the situation that had occurred on 9 February 2010 as very unusual but said that it was not dangerous. This was because, if a problem had arisen, there were people around who could have helped.137 She said that the absence of two of the theatre nurses did not compromise the care of the patient as the scrub nurse could unscrub and help.138 Dr Stegeman noted that there was still a scrub nurse in theatre and there were also two doctors, a theatre technician and a midwife. She also said that someone could have walked out of the theatre and called for help which would have been immediate.139 It was her view that if a case goes awry, there is usually, very quickly, help from everywhere. Dr Stegeman said that the anaesthetist had all the equipment that he needed to give the spinal anaesthetic and at that moment, there was nobody in the world that could help him. He just needed to get the spinal into the right position.140 However, Dr Janda required the anaesthetic nurse and that was why she came in - that was why she gave him the needle. At that point, the anaesthetist was on his own - he has to put the needle in.141
[38] She did not recall Mr Walker coming into the room but did recollect the anaesthetist giving the spinal anaesthetic and the patient lying down on the table. At that point, Dr Stegeman left the theatre to go and scrub. When she came back, after a little while, she noticed that Mr Walker was there. 142 She stated that she was present for the whole of the anaesthetic procedure.143
[39] She disputed Ms Best’s account of what had happened on the basis that she did not think that Ms Best was in a better position to see what had happened than she was. She said that Ms Best was even further away from the patient's back than she was so she could not have seen what was happening in the patient's back. 144 Dr Stegeman indicated that Ms Best was behind her the whole time.145
MS COPPINGER
[40] Ms Coppinger is a nurse who has been employed by Goulburn Valley Health for 30 years and who has worked as a theatre nurse for 35 or 36 years. 146
[41] It was Ms Coppinger’s evidence that she was not present in theatre on 9 February 2010 and so did not have a detailed knowledge of the incident. 147 She confirmed that Ms Olcayoz was the designated scout nurse on that day.148 She said that, from her experience, not every theatre nurse was multi-skilled but with respect to the three nurses who were in the theatre on 9 February 2010, they could have done any of the three roles.149 Ms Coppinger also indicated that she had worked in theatres where the anaesthetic nurse and the scout nurse had been out of the room on various errands. She stated that the scout nurse and the anaesthetic nurse were not always interchangeable as the scout nurse may not be qualified to do the anaesthetic.150 Ms Coppinger recalled previous occasions when she had been scrubbed in theatre and all of the other nurses were not there. She said that the surgeon and the anaesthetist were still there with the patient.151 She also said that some nurses indicated why they were leaving theatre and some did not but generally, the nurses tried to.152
[42] Ms Coppinger expressed the view that, whether a conversation in the anaesthetic room could be heard in the theatre, would depend on how loud the voices were and if there was a lot of noise in the theatre. 153
DR CHEW
[43] Dr Chew is an orthopaedic surgeon and a Visiting Medical Officer at Goulburn Valley Health. He has worked with Ms Olcayoz for approximately 9 years. 154
[44] It was indicated by Dr Chew that he was away at the time of the incident and so has a limited knowledge of the events that occurred. 155 He indicated that he had not experienced a situation where two nurses had walked out of an operation. Dr Chew stated that the nurses would need to sort it out very soon because otherwise nothing can happen or the operation would have to stop at whatever safe point. He agreed that at that point that there would be a compromise of the patient's welfare.156
MS DOYLE
[45] Ms Doyle stated that her position with Goulburn Valley Health had been that of clinical floor manager of the operating theatres and that she had performed that role for approximately 5 years. She stated that she had reported to Ms Carr, the Nurse Unit Manager. Ms Doyle said that Ms Olcayoz reported to herself or to Ms Carr. 157
9 February 2010 - operating theatre 3
[46] Ms Doyle explained that, when she arrived at work, she was short staffed (one staff short) 158 and had to assign herself as the anaesthetic nurse in the operating room 3. Ms Olcayoz was the scout nurse and Ms Rabl the scrub nurse.159 It was Ms Doyle's evidence that all three of the nurses present in the theatre that day would have been able to do each of the roles.160 She stated that she was extremely busy that morning.161 She stated that there was no discussion amongst the team that she was the team leader on that day.162
[47] Prior to the procedure commencing, she had a conversation with Dr Janda to let him know that she was his anaesthetic nurse. She had also told him that, in her capacity as clinical floor manager as well, she had a problem in theatres 1 and 2 and that she would be in theatre 3 as soon as she could. 163 Ms Doyle stated that the scrub and scout nurses may not have been aware that she was doing two jobs that morning as she had only spoken to Dr Janda.164 She said that normally, when she was allocated to a theatre, she would hand the responsibility of clinical floor manager to Ms Carr. Ms Doyle did not believe that the scrub and scout nurses would have known whether Ms Carr had arrived at work or not and whether she had relinquished her role as the clinical floor manager.165
[48] Ms Doyle recalled that she was speaking to a company representative on the phone when Ms Olcayoz came and asked her to come to theatre 3 as the anaesthetist wanted her in theatre. 166 It was denied by Ms Doyle that she and Ms Olcayoz had an argument at that point in time. She described it as “an exchange of sentences”.167 She said that she finished her telephone conversation and then went to theatre 3.168
[49] When she entered the theatre, the patient was sitting up on the table, being supported by a theatre technician, with her husband sitting at the head of the table. 169 She said that she was surprised that the theatre had started without her as the anaesthetic nurse. She was in the course of doing her duties when she was called back to the front desk. This was because she had left there without completing what she needed to do in theatres 1 and 2. Ms Doyle said that the anaesthetist had not started so she felt that she had a brief amount of time to leave theatre to let theatres 1 and 2 know that, once she returned to theatre 3, she would not be available for a period of time. It was indicated that Ms Carr had not yet arrived at work and so she could not hand off the role of clinical floor manager to her.170
[50] As she was standing at the front desk, Ms Olcayoz came back out again and indicated that she needed to come back into the theatre. Ms Doyle recalled that she went back into theatre and said something like “the spinal needles are in the top drawer” to Ms Olcayoz. 171 It was her recollection that she had only made that comment once.172 She stated that her voice was short and sharp and annoyed.173 Ms Doyle recalled seeing a disappointed look on Ms Olcayoz’s face.174 She said that, because the theatre had started without her as anaesthetic nurse, she supposed that she was taking out her frustration on one member of the team - Ms Olcayoz.175 She stated that she was not annoyed with Ms Olcayoz but because the team had started without her.176 Ms Doyle explained that the procedure could not start without a timeout when all members of the team must be present. She was not present for the timeout in theatre 3 so believed that the procedure should not have commenced.177
[51] Ms Doyle stated that she and Ms Olcayoz did not have an argument in theatre. 178 She had spoken to Ms Olcayoz in a sharp, short and annoyed tone but did not believe that she spoke at a loud volume.179 She did not recall waving her finger at Ms Olcayoz.180 Ms Doyle did not remember exactly what Ms Olcayoz had said in response or her tone of voice.181
[52] Ms Doyle stated that she had not had a conversation with Ms Olcayoz about assuming her role as anaesthetic nurse because she was extremely busy that morning. 182 She said that, if Ms Olcayoz was busy doing her role as circulating nurse, she (Ms Doyle) would not assume that she would go and help the anaesthetist. Ms Olcayoz’s primary role was circulating nurse. Nurses have to make a clinical decision about whether they can interchange their roles. She said she would not expect a circulating nurse to make a clinical decision to provide a needle to the anaesthetist instead of going and finding the anaesthetic nurse.183
[53] It was Ms Doyle’s evidence that, when she spoke to Ms Olcayoz regarding the spinal needles, Dr Janda was seated or standing behind the patient. She said that she did not believe that the patient was prepped or draped. This meant that the anaesthetist was about to start but had not yet started. 184 She stated that there was no spinal needle inserted in the patient's back.185 She said that she had walked into the theatre and opened the spinal needle onto the anaesthetist sterile tray.186 She said that this was the first needle that she had opened that morning.187 Ms Doyle did not recall opening a needle at any other time that morning.188 She said that she would have got the needle out of the drawer, made her comment to Ms Olcayoz and then flicked the spinal needle onto the anaesthetic trolley.189 It was Ms Doyle’s evidence that Dr Janda did not ask her for a longer needle - she had opened a regular length spinal needle - before she left for the anaesthetic room.190 She did not believe that the anaesthetic procedure had started when she and Ms Olcayoz had left theatre. She said that there had not been a needle in the patient's back when she left the theatre and the patient was not at risk.191 She recalled that the patient was in a sitting position when she left to go to the anaesthetic room.192
Anaesthetic room
[54] Ms Doyle said that, because she was disappointed in herself she went to the anaesthetic room to gather her thoughts. 193 She said that she was disappointed in herself as a manager because it was inappropriate what she had done to one of her staff members in front of the patient and other staff in the operating room. Ms Doyle said that she had probably only taken two breaths (5 to 10 seconds)194 and, as she was going back into the operating room, she was met by Ms Olcayoz, who was coming out.195 Ms Olcayoz appeared upset and on the verge of crying.196 Ms Olcayoz said to her that she could not work under these conditions.197 She recalled asking her to stay until they had started and completed the anaesthetic/caesar but Ms Olcayoz had repeated that she could not work under these conditions and that she had to go.198 She therefore needed relieving.199 Ms Doyle stated that she did not give Ms Olcayoz a direction to stay in the theatre.200 Ms Olcayoz then left the anaesthetic room.201
[55] Ms Doyle said that she and Ms Olcayoz did not have an argument in the anaesthetic room. 202 She described it as a conversation - Ms Olcayoz making a statement, then she made a statement and then Ms Olcayoz.203 She said that she was not consoling Ms Olcayoz. Ms Doyle stated that she had a loud booming voice204 and that her voice could have been raised as she was annoyed. She denied that their voices were raised and heated.205
[56] Ms Doyle accepted that, if Ms Olcayoz was unfit and unable to do her job, it would be incorrect of her to continue in that role. If she felt that way she was required to tell the person in charge of the operating theatre at the moment she needed relieving. 206 If a staff member was unwell they would need to leave the theatre to find the clinical manager to let them know that they are feeling unwell and to ask if there is someone to relieve them.207 It was her view that if a nurse was so emotional that she could not continue in the theatre, then she should leave and a replacement should be immediately obtained.208
[57] It was recounted by Ms Doyle that, as Ms Olcayoz left, she made a quick decision and (one second later) 209 asked Ms Sangster to get Mr Walker (who was 10 metres away) and to go into theatre as two staff were leaving.210 The reasons for doing this were said to be because the anaesthetist would have been waiting for staff to start the anaesthetic.211
Change room
[58] Ms Doyle had then gone into the change room and apologised to Ms Olcayoz for having spoken to her in such a manner in front of the patient. Ms Doyle recalled that Ms Olcayoz was upset. 212 Ms Olcayoz had responded by asking whether the theatre was okay and she had responded by saying that it was fine and that she had sent two staff in. Ms Olcayoz had then said that she needed to go. Ms Doyle had asked her if she could have a coffee and see if she could come back.213 It was agreed that Ms Olcayoz would have a coffee and would then let Ms Doyle know whether she was coming back to work.214
[59] Ms Doyle went back to theatre 3 (having been out of theatre no more than 3 to 5 minutes, 5 to 10 minutes) 215 after the caesar had commenced but before the delivery of the baby, which was imminent.216 She said she also completed the surgical counts, the three surgical counts out.217 There was only one of the two staff that she had asked to go into theatre present - Mr Walker. She had then assumed the role of scout nurse.218 Ms Doyle said that the patient was vomiting or was about to vomit when she returned to theatre. She did not know if the patient had vomited prior to her returning to the operating room.219
[60] It was Ms Doyle’s opinion that the start of a spinal anaesthetic would be when the first needle went in. After that, the patient needed to lie down reasonably quickly. 220
[61] Ms Doyle stated that it was the role of the anaesthetic nurse to collaborate with the anaesthetist but it was also their role to be a member of the team. Therefore if something happened at the surgical end and the anaesthetist did not require the anaesthetic nurse, then the anaesthetic nurse could go and assist the scout (circulating) nurse where required. She also stated that anaesthetic nurses do not ask the anaesthetist every time they wish to leave the theatre. It was a matter of clinical judgement as to whether the anaesthetist should be asked if they could leave the theatre. If an anaesthetic nurse was going on a break, they would check with the anaesthetist and the team as to whether it suited for them to go. 221 It was Ms Doyle’s opinion that the scrub nurse and the scout nurse worked mostly together. She indicated that if there was something missing from the theatre, the scout nurse would need to leave the theatre to go and get it or to ask for the next patient at the front desk.222 Scout nurses also leave the operating room for training, for morning tea and lunch or to go to the bathroom.223 She stated that the scout nurse may not be relieved for morning tea or lunch.224 In such a situation, Ms Doyle said that, between the team including the anaesthetist, they would decide and the anaesthetic nurse would then assume the role of the scout nurse.225 Ms Doyle stated that it was up to the scout (circulating) nurse to make a judgement about whether it would be appropriate for her to leave the theatre.226
[62] Ms Doyle stated that she had resigned from Goulburn Valley Health on 19 February 2010. She explained that allegations were made against her by the hospital regarding her involvement in the incident on 9 February 2010. After discussions with the union she made the decision to resign. 227 She stated that the hospital had offered that she could apply for a job at the hospital but it would not be in her area of expertise and there would be a period of exclusion from the operating suite. There was no indication that she would lose salary or conditions of employment.228
[63] She confirmed that she was aware of a letter signed by eight doctors from Goulburn Valley Health requesting a review of the decision to terminate herself and Ms Olcayoz. 229
DR MORTENSEN
[64] Dr Mortensen is an urologist who has worked at Goulburn Valley Health for eight and a half years. 230 He indicated that he would have worked on average, once a week over the last two years, with the applicant. He stated that, when he was operating, there was a scrub nurse, scout nurse and anaesthetic nurse. Dr Mortensen indicated that, if all three nurses were not present, he would not be called in to start the operation.231 He said that, during the operation, he would not necessarily be aware of the anaesthetic nurse being absent. Also, quite often, the scout nurse was outside the theatre as well doing scouting because that is what they were there for.232 Dr Mortensen said that he had no first-hand knowledge of the incident on 9 February 2010.233
DR ROBERTSON
[65] Dr Robertson is a specialist anaesthetist and is Director of Anaesthetics (since 1 June 2010) and Director of Intern Training at Goulburn Valley Health and is involved with international medical graduate training. She commenced working at Goulburn Valley Health 21 years ago as a Visiting Medical Officer. 234
[66] Dr Robertson indicated that the anaesthetist locates the safe position for the spinal needle with the patient sitting on the side of the bed. She stated that a local anaesthetic was administered to make it painless for when the spinal needle is put in. She said that these were two different processes. 235 Dr Robertson explained that there were three needles in total - the local anaesthetic, introducing needle and a further spinal needle. She indicated that, in the normal course of events, the spinal needle follows the other two needles.236 It was her view that it was after the local anaesthetic had been administered that the clinical risk occurs.237 Dr Robertson said that ideally, the anaesthetic nurse is present for the whole of the spinal anaesthetic. However, there are times when the anaesthetic nurse has to dash out to get things that have not been supplied, for example, a different spinal needle. If that happens, the anaesthetist can wait and the patient is quite safe.238
[67] With respect to the letter of resignation she had written, Dr Robertson said that it was based on the information that she had at the time. She stated that she had been told that the two nurses had had an argument and both had left the theatre, leaving the anaesthetist unattended, which would be wrong. 239 She stated that she had not been aware that Ms Olcayoz was performing as a scout nurse and had not been asked to be the anaesthetic nurse. Dr Robertson also did not know that Ms Olcayoz had been asked to retrieve the anaesthetic nurse from outside the theatre twice or that Ms Olcayoz had become very upset and had to leave the theatre.240 Dr Robertson agreed that she had not put in her statement that her view had changed after she had gained further knowledge of what had happened.241
[68] Dr Robertson stated that, despite being the Director of Anaesthetics, she had not known any of the details regarding the incident until she found out quite by chance one week later (on 16 February 2010). 242 She recalled that she had immediately gone to see Ms Carr to find out what had happened.243 Dr Robertson confirmed that Dr Janda had told her that Ms Doyle and Ms Olcayoz had been involved in the incident.244 By that time, Ms Doyle was unable to speak to her and so she could not find out any more details.245 She accepted on face value what was being told to her by Ms Lewis and Dr Warton. This was that the incident involved both the nurses to the same extent.246 Dr Robertson indicated that it was only after she had put in her letter of resignation that she became fully aware of the details of the incident.247 Once she realised that Ms Olcayoz’s situation was quite different to Ms Doyle’s and the fact that they had been offered their jobs back, that was when her position changed.248 She indicated that she had offered her resignation on 4 March 2010 because she felt so strongly about the issue.249 She confirmed that she had had discussions with Ms Doyle and Ms Olcayoz prior to 4 March 2010.250 She recalled that Ms Doyle had said that she was sorry about the incident but that Ms Olcayoz had not.251 Dr Robertson said that she had subsequently retracted her resignation as she believed that the offer of re-employment to positions outside of theatre was reasonable.252
[69] It was confirmed by Dr Robertson that Dr Janda had contacted her after the procedure and had told her that there had been a problem in his theatre with the nursing staff. 253 He was very upset as he was there on his own and he wanted her to know that this had occurred. She recalled that he had said that he was particularly upset with Ms Doyle who was his anaesthetic nurse.254 Dr Robertson recounted that, during the conversation, Dr Janda was mostly focused on Ms Doyle and all that he had said about Ms Olcayoz was that she was present.255 Dr Robertson agreed that she had not referred to her conversation with Dr Janda in her statement.256 Dr Robertson stated that she had not conducted her own investigation because she was told very, very strongly, particularly by Ms Lewis, that this was a nursing issue.257 She conceded that after Dr Janda had approached her, she could have checked whether there had been a RiskMan report made.258 Dr Robertson indicated that she had first seen the report in the last few weeks but had not read it at the time of her resignation.259 It was Dr Robertson's view that she had known the information that was in the RiskMan report. She also said that the report did not set out the fine detail regarding Ms Olcayoz’s involvement in the incident.260
[70] Dr Robertson stated that she was not present in the theatre on 9 February 2010. She said that there was no significant clinical risk created by nurses leaving the theatre until the local anaesthetic was administered into the cerebrospinal fluid. 261 She confirmed that ideally there are three nurses in the theatre at any one time. Dr Robertson agreed that, if three theatre nurses were not rostered on and were not available, an operation would not proceed.262 She accepted that what had occurred on 9 February 2010 was a serious incident.263 However if a nurse becomes so emotional that she cannot continue and make good decisions for that patient, it was Dr Robertson’s view that they should leave but a replacement should be sought immediately.264
[71] Dr Robertson indicated that, on 15 March 2010, she attended a meeting with Ms Lewis, Dr Warton, Mr Hunt and Dr Piercy. 265 She confirmed that Dr Piercy had prepared a letter which a number of the medical staff, including herself, had signed, requesting that Ms Doyle and Ms Olcayoz be permitted to return to the hospital.266 She stated that, prior to signing the letter, she had had discussions with both Ms Doyle and Ms Olcayoz. However, Ms Doyle was told not to discuss what had happened right from the beginning267 and there was not a detailed conversation held with Ms Olcayoz.268 Dr Robertson said that what was written in the letter was based on the information that the doctors had at the time.269 She said that they had asked for more information from Ms Lewis and Dr Warton but no more information was given.270
MS CARR
[72] Ms Carr is the Nursing Unit Manager of the Operating Suites and has been employed by Goulburn Valley Health since 1989. She stated that she was not in the department when the incident occurred on 9 February 2010 and so did not have first-hand knowledge of what had occurred. 271 She recalled that she had spoken to the patient and to the nursing staff afterwards. It was her evidence that the patient did not appear upset or concerned and the husband did not appear distressed about the incident either.272 Ms Carr said that she spoke to Mr Walker on the day of the incident. She recalled that he had said that he had been called in to help in theatre 3, by Ms Sangster, because two staff members were not in there at the time.273
[73] She stated that she had not been involved in a complaint by either the patient or her husband. It was explained by Ms Carr that it was normal procedure for her to be involved if a complaint had been received regarding her department. 274 Ms Carr confirmed that she was Ms Olcayoz’s direct supervisor - as theatre manager.275 Ms Carr said that she was concerned because Ms Olcayoz had been spoken to rudely in front of a patient and felt she had been harassed. She had then left because she felt she had been demoralised by another staff member.276
[74] Ms Carr stated that on, 9 February 2010, Ms Doyle was also the clinical floor manager. This meant that she was responsible for ensuring that the department was running efficiently. 277 She said that Ms Olcayoz was the scout nurse on that day. It was her view that the scout nurse can work interchangeably with the anaesthetic nurse but it depended on what was occurring at the time. She explained that the scout nurse, at the beginning of a case, was responsible for ensuring that everything was there for the instrument nurse and they are to get anything that is required. The anaesthetic nurse was responsible for looking after the anaesthetist and the patient.278 Ms Carr confirmed that all of three nurses who were rostered on the day of the incident were very experienced and could perform each other's duties.279
[75] Ms Carr indicated that she had not experienced two clinical nurse specialists assigned to a theatre walking out of it. She agreed that whilst in theatre, the priority was patient care. Ms Carr stated that a caesarean operation is a major operation and that any operation can have complications. 280 She said that, as unit manager, it concerned her that her staff had walked out of the theatre and left their work and the patient.281 However, she said it is easy to say that it is essential for any professional staff to keep their emotions in check. She stated that it is not always easy to do that if you are spoken to in a manner that upsets you and makes you feel that you cannot continue working - sometimes people walk out.282 Ms Carr said that she has seen it happen where people have been put in a situation where they feel they just cannot keep going on. If you do not deal with the situation very well then you are put into a really emotional state and you can make mistakes.283
[76] She confirmed that she was a good friend of Ms Olcayoz and believed that she had been spoken to in an inappropriate manner. Ms Carr stated that Ms Olcayoz did walk out on the patient but she said that, as she could not continue on, she was better out of theatre. It was stated that, if you cannot perform your duties to their full extent, then you potentially could put a patient at risk. Ms Olcayoz was the count person so it could affect the instrument count. 284 It was Ms Carr’s view that one would hope that people can get on with the job at hand but sometimes a nurse gets into a position where they just cannot deal with it.285
[77] It was confirmed by Ms Carr that she had been interviewed by Ms Lewis regarding the incident. 286 She indicated that Ms Olcayoz had asked her to be her support person when she was interviewed by Ms Lewis on 16 February 2010.287 She agreed that the allegation that had been put to Ms Olcayoz was that there had been an argument in theatre 3 and that she had left the theatre.288 It was Ms Carr’s observation that Ms Lewis did not give Ms Olcayoz a chance to reply to the allegations. She recalled Ms Lewis saying - these are the allegations, I want you to go away and come back with a statement and hand it to me with your response. She said that Ms Lewis was not interested in listening to anything on the day. She wanted it all in writing and back on a certain date.289 Ms Carr recalled that Ms Lewis did not stop Ms Olcayoz from speaking but when she did, Ms Lewis would tell her to put it in writing. It was Ms Carr‘s observation that Ms Lewis was more interested in a written statement than a verbal one.290 Ms Carr stated that she had no input into Ms Olcayoz’s written response to Ms Lewis and did not see it before she handed it in.291
[78] Ms Carr confirmed that she was aware that Ms Olcayoz suffered with a bipolar disorder. 292
DR O'LEARY
[79] Dr O'Leary has been working at Goulburn Valley Health since February 1999. 293 It was his evidence that he has probably encountered a situation where two out of the three theatre nurses have left the theatre at the same time during an operation. He said that he would need at least one nurse with him during an anaesthetic procedure, otherwise he would not carry on.294 Dr O'Leary stated that generally the scout nurse and the anaesthetic nurse multi-tasked and if the latter was not present, the scout nurse might assist him.295
[80] Dr O'Leary stated that he had no first-hand knowledge of the incident that occurred on 9 February 2010 as he was not there. 296
RESPONDENT
DR JANDA
[81] Dr Janda is a consultant anaesthetist with Goulburn Valley Health. 297
[82] Dr Janda explained that, on 9 February 2010, he came into the anaesthetic room, said hello to his patient and put the IV drip in and started looking for his anaesthetic assistant. He stated that Ms Doyle's name was on the board as the allocated anaesthetic nurse to his theatre. 298 However, it was also his evidence that, when he went into theatre on 9 February 2010, he did not know that Ms Doyle was his anaesthetic nurse. The patient was there but nobody else and his anaesthetic nurse needed to be there to commence the anaesthetic.299 Dr Janda asked Ms Olcayoz who his anaesthetic assistant was and she had replied Ms Doyle and she started looking for her.300 Dr Janda could not remember if he had asked her to do so.301
[83] At that point, Dr Janda confirmed that he did not have an anaesthetic nurse available. He stated that, apart from putting the IV drip in, he had not done anything else. 302 Dr Janda said that he did not ask Ms Olcayoz to step in and act as his anaesthetic nurse.303 He recalled that his only question was “who is my anaesthetic nurse today?”304 Dr Janda said that he had heard an argument but he could not remember whether it was in the corridor or in the anaesthetic room.
[84] Dr Janda said that when Ms Doyle came into theatre she reacted quite defensively and was unhappy about being there. 305 Dr Janda stated that she then set up the spinal trolley.306 He went and scrubbed in preparation for the procedure.307 It was recalled that Ms Doyle then left the theatre again.308 Dr Janda stated that, whilst Ms Doyle was there, he had started doing the procedure and was concentrating on putting the spinal needle in. He found that the spinal needle was not long enough to reach the spine and asked for a longer needle but there was no anaesthetic nurse there.309 He thought that, when he had asked for a longer needle, Ms Olcayoz was in the room as he had looked around and he thought that she was there. He was not 100% sure.310 Dr Janda recalled that Ms Sangster offered to help and asked him what he wanted. He had replied that he needed a longer needle.311 He stated that he would not have started the procedure if Ms Doyle had not been in theatre.312 He did not recall at what time Ms Doyle left the theatre.313
[85] Dr Janda stated that he did not see Ms Olcayoz leave the theatre or know when she left as he was concentrating on what he was doing. 314 He said that he did not recall Ms Doyle saying to Ms Olcayoz words to the effect that the spinal needles were in the drawer.315
[86] It was recounted by Dr Janda that he had telephoned Dr Robertson after the incident in theatre and arranged a meeting with her in the late afternoon. The reason for doing this was that there had been a breach of the College recommendation which states that there has to be an anaesthetic assistant available at all times during a procedure. 316 Dr Janda explained that there was a limited availability of the anaesthetic nurse (Ms Doyle) on that day.317 He said that it was Ms Doyle's actions that he was concerned about but it was not exactly her issue - rather, it was a system failure/good governance issue.318 Dr Janda said that he had raised it with Dr Robertson so that a situation like that did not happen again.319 It was stated that, under the College guidelines, he could not start the procedure until the anaesthetic nurse was ready to go.320 He recalled that, during the conversation, nothing was raised in regard to Ms Olcayoz.321 Dr Janda recollected that he did not say that he was unhappy with Ms Doyle.322
[87] Dr Janda described the spinal anaesthetic process as, as soon as he was in the theatre, he needed to check that all the equipment was available and that there was an assistant who was adequately trained. Then, he would go to scrub. In the meantime, the anaesthetic nurse would open the packages and get the needles ready so that when he came back to theatre, everything basically ready. 323 He outlined the steps of the spinal anaesthetic as prepping the patient, identifying the spot on the spine, draping the patient, introducing local anaesthetic into the skin, inserting the introducing needle at the spot, inserting the spinal needle, administering the drug.324 It was Dr Janda’s view that, during the whole induction, the anaesthetic nurse needs to be available. He said that the risk/danger starts as soon as the patient arrives in theatre even before he has touched the patient and the anaesthetic nurse needs to be available to assist. Therefore, he said that if the anaesthetic nurse was not physically present in theatre, he would not take an anxious patient into theatre.325 Dr Janda stated that if the anaesthetic nurse was not in theatre, he would not start the steps towards putting the spinal needle into the patient's back.326
[88] Dr Janda recalled that, on 16 February 2010, Ms Lewis and Dr Warton telephoned him and asked him to describe the incident that had occurred on 9 February 2010.
MS RABL
[89] Ms Rabl is a Clinical Nurse Specialist in Theatre with Goulburn Valley Health and has been employed with them for three years. She stated that, even though she was setting up, she could still hear what was going on in theatre and was very aware of what was happening. 327 She confirmed that she was standing in front of the scrub trolley and was therefore facing away from the theatre table. She also stated that Ms Olcayoz was at the other end of the theatre facing the theatre table and was setting up at the instrument trolley.328 Ms Rabl recalled that Dr Janda was scrubbed, the patient was prepped and the drapes were on the patient.329 She stated that Ms Olcayoz went out of theatre to get Ms Doyle at the request of Dr Janda. Ms Rabl confirmed that Dr Janda, at no stage, asked Ms Olcayoz to assist him as the anaesthetic nurse.330 Ms Rabl said that both Ms Doyle and Ms Olcayoz then returned to theatre.331
[90] Ms Rabl recalled that, after Ms Doyle had returned to theatre, Dr Janda had asked her for a needle. She assumed that Dr Janda had asked for another needle because he had already started. 332 She stated that Dr Janda had already started the procedure because the patient was positioned and draped and that this was the last that she had seen.333 Ms Rabl indicated that the patient had not been lying down when Ms Olcayoz left theatre.334
[91] Ms Rabl said that, after Ms Doyle had opened a needle into the spinal tray, there was not any finger wagging but there was gesturing with arms. 335 She recalled that Ms Doyle did not use Ms Olcayoz’s name to get her attention. She conceded that Ms Doyle had said to Ms Olcayoz that the needles were in the drawer.336 It was Ms Rabl’s evidence that there was an exchange of words between Ms Doyle and Ms Olcayoz in the theatre and it seemed that Ms Doyle was having a go at Ms Olcayoz.337 She recalled that Ms Olcayoz’s tone of voice was assertive whilst Ms Doyle sounded angry and frustrated.338 Ms Rabl did not recall Ms Doyle saying that Ms Olcayoz knew that she was too busy and that she (Ms Olcayoz) could have done this by herself.339 Ms Rabl stated that, by this stage, she had turned around because she was fully set up. She further explained that she had turned around when Ms Olcayoz had left the theatre to get Ms Doyle the first time.340
[92] It appeared to Ms Rabl that, after the exchange, Ms Doyle and Ms Olcayoz left theatre at pretty much exactly the same time. She characterised their conversation in the anaesthetic room as having raised and angry voices (not yelling) and said that it sounded as if they were speaking over the top of each other. 341
[93] It was Ms Rabl’s evidence that she could not say if the needle was exactly in the patient's back at the time Ms Olcayoz left theatre. She knew that the anaesthetist was there and was manipulating the spaces in the middle of the procedure but she did not know which part of the procedure he was actually doing except that he was trying to just get job done. 342 She stated that she could not contradict Ms Olcayoz’s evidence that there was no needle in the patient's back when she left theatre as she had not walked where Ms Olcayoz had walked.343
[94] Ms Rabl recalled that, less than five minutes (probably three minutes) after Ms Doyle and Ms Olcayoz left theatre, Mr Walker and Ms Sangster came into theatre. 344 Mr Walker provided assistance to Dr Janda who then continued, inserted the needle and anaesthetised the patient.345 She stated that Ms Doyle was in theatre for the first count, which was after the baby was born, but was unsure as to exactly when she had returned.346 Ms Rabl indicated that Ms Doyle may have been there before the baby was born but said that she was not there when they started to prep and drape.347
[95] It was Ms Rabl’s opinion that Ms Olcayoz should not have left theatre. She said that Ms Olcayoz did not appear to be emotional to the point of being upset - a little cross and angry but not on the verge of tears. 348 She stated that there are times when it would be appropriate to leave if one was unable to stay but at other times, it is inappropriate to leave and one just needs to push on.349
MR WALKER
[96] It was indicated by Mr Walker that his personal knowledge of the situation only commenced after Ms Sangster fetched him from the recovery room and he went into the theatre and assisted Dr Janda. 350 He recalled that Ms Sangster had told him that there appeared to have been an altercation in theatre but he had not heard it or seen it himself. The basis of his understanding was what Ms Sangster had told him.351 Mr Walker stated that, after he had left theatre 3, he had reported the incident to Ms Carr.352 He stated that he was interviewed by Ms Lewis on the basis of what he had put in the RiskMan report.353
[97] Mr Walker recalled that, when he went into theatre 3, the patient was sitting up and Dr Janda was sitting behind the patient waiting for a lumbar introducer. 354 He gave Dr Janda a needle (a lumbar introducer) which he then commenced to insert into the patient's back.355 He indicated that, once the anaesthetic had been administered, the patient was lain down which had occurred whilst he was in the room.356 The patient was then prepared for surgery.357 It was his recollection that Ms Doyle was present when they were going to do the first count. He was pretty sure that Ms Doyle was not present when the baby was delivered.358
[98] It was Mr Walker's view that a spinal had probably been attempted before he came into theatre, otherwise, Dr Janda would not have asked for a lumbar introducer. 359 He stated that he did not know anything about what had happened prior to him walking into theatre.
[99] Mr Walker described the role of scout nurse as one of the busiest roles in theatre. He said that the role of the scout nurse is to circulate, ensure that the counts are correct and to anticipate the needs of the scrub nurse. As well, if the anaesthetic nurse needs assistance, the scout nurse is expected to go and assist. Other than in the event of an unexpected outcome, the expectation is not that the scout nurse would perform both the scout nurse and anaesthetic nurse roles. Mr Walker further explained that, if there was an unexpected outcome, the anaesthetic nurse would go and assist the scout nurse. However, if it was not that type of situation, the expectation would be that each nurse would perform their designated role. 360
MS LEWIS
[100] Ms Lewis is the Chief Nursing Officer for Goulburn Valley Health.
[101] Ms Lewis stated that it was her view that Ms Olcayoz’s conduct on 9 February 2010 caused an imminent and serious risk of injury to health and safety of the patient and also constituted neglect of duty. 361 This was said to be because Ms Olcayoz and another nurse walked out of theatre and left a patient whilst a spinal needle was being inserted into the patient's back. Ms Lewis indicated that the investigation was initiated based on Ms Best’s RiskMan report which indicated that this was what had happened.362 It was stated that she regarded both Ms Doyle and Ms Olcayoz as guilty of serious misconduct to the same extent and that both nurses were at fault to the same extent.363 Ms Lewis indicated that she had reached these conclusions based on her investigation.364
Meeting on 16 February 2010
[102] In terms of the meeting on 16 February 2010, Ms Lewis did not recall being hostile to Ms Olcayoz. 365 She recounted that the meeting had been called to provide Ms Olcayoz with notice that an incident had occurred and the allegations that had been made.366 Ms Lewis said that she had gone over the incident that had been reported to her with Ms Olcayoz and had told her that she had not finished investigating the incident.367 Ms Lewis stated that Ms Olcayoz had agreed that the incident had occurred and so she had given Ms Olcayoz time to go away and provide a written response. The purpose of the meeting therefore was to give Ms Olcayoz notice about the incident, to give her time to think about it and to provide a written response.368 She said that this was the usual practice.369
[103] Ms Lewis confirmed that it was Ms Olcayoz’s version that Ms Doyle had come into theatre and had a go at her. She stated that it was only Ms Olcayoz who was saying that as no other people in the theatre confirmed that that was what had occurred. 370 She said that Ms Best had neither confirmed nor denied Ms Olcayoz’s account and that Ms Doyle had not contradicted it either.371 However, no one else had confirmed Ms Olcayoz’s version of events.372 Ms Lewis indicated that, when she had interviewed Ms Doyle, Ms Doyle had not told her that she (Ms Doyle) was the one who was angry. She recalled that Ms Doyle's comments indicated that there had been some words but she had not said who had started what.373 Ms Lewis stated that her investigation had provided nothing which confirmed Ms Olcayoz’s account of what happened after Ms Doyle came back into theatre.374 It was explained by Ms Lewis that, when she investigated an incident, she needed confirmation of what had actually happened. In this case, she had nobody else confirming Ms Olcayoz’s account.375
[104] Ms Lewis said that she had reason to think carefully about the information given to her by Ms Olcayoz because of her previous experience in dealing with Ms Olcayoz over the smoking incident. She stated that it was not so much what Ms Olcayoz had done but it was what she had said at the meeting in that she had vehemently denied smoking for some time. 376 Ms Lewis explained that the warning had demonstrated to her that Ms Olcayoz would deliberately do what she wanted to do until she was pulled up or questioned by a senior staff member. She acknowledged that that had influenced her decision, based on the information she had gained from the people she had spoken to and also reading Ms Olcayoz’s written response.377 Ms Lewis argued that there was a connection between the smoking incident and the incident in theatre as there was a similarity in the behaviour that Ms Olcayoz had exhibited during both incidents.
[105] It was her view that Ms Olcayoz had to provide her with evidence that was corroborated by the information she had gained from other people. 378 Ms Lewis stated that Ms Olcayoz had to prove to her that she had behaved professionally.379 It was Ms Lewis’s recollection that, during the meeting on 16 February 2010, Ms Olcayoz had said that there could not have been an argument in theatre because she had not said anything. However, when she had received Ms Olcayoz’s written response, it was a direct contradiction of what Ms Olcayoz had told her on the 16th February 2010.380 Ms Lewis stated that she was not told by other people that there was not an argument in the anaesthetic room.381
[106] Ms Lewis said that Ms Olcayoz needed to make sure that the patient was safe before leaving theatre - if she felt that she was unable to safely continue because she was upset. Ms Lewis said that Ms Olcayoz had not made the patient safe because it had been reported to her that Ms Olcayoz had left the theatre during a spinal anaesthetic and that the patient was uptight. 382 It was recalled that Dr Janda had told her during the telephone conversation that he was in the process of inserting the spinal needle.383
[107] Ms Lewis confirmed that Ms Doyle was senior to Ms Olcayoz and that the proper course was for a nurse to tell her senior if she was not able to continue and that she needed to be relieved. 384 Ms Lewis pointed out that Ms Doyle was also part of the team working in that theatre.385 She said that Ms Olcayoz had discharged her responsibility, if she could not continue safely, by telling Ms Doyle.386 However, given the evidence that she had obtained from the investigation and knowing the two people involved and how they functioned, Ms Lewis believed that both of them were at fault in leaving the theatre and the both of them were equally culpable.387 It was stated by Ms Lewis that she did not have any information at the time of her investigation regarding Ms Olcayoz telling Ms Doyle, in the change room, that something needed to be done about staffing. She indicated that, if that evidence was accepted, it would change her view about Ms Olcayoz’s degree of culpability.388 If both Ms Doyle’s and Ms Olcayoz’s evidence was that this had happened, she would agree that Ms Olcayoz had not committed serious misconduct.389
[108] With respect to the Australian College of Operating Room Nurses (ACORN) Standards, Ms Lewis agreed that as a matter of course, the circulating (scout) nurse ought not, unless there is a good reason, perform more than one function. She stated that, in an emergency situation, the roles of the 3 nurses in theatre would overlap. 390 Ms Lewis confirmed that her understanding was that Dr Janda had asked Ms Olcayoz to get Ms Doyle as she was his designated anaesthetic nurse. She indicated that she accepted that Dr Janda had not asked for assistance from Ms Olcayoz even though he would have had a right to expect it from either of the other two nurses.391 However, it was Ms Lewis’s view that, whilst one person may ask specifically for something, it is not unusual for somebody else to also help. This was because the nurses usually work as a team in theatre and help each other out.392
[109] It was Ms Lewis’ view that Ms Olcayoz’s actions had put the reputation of Goulburn Valley Health at risk because it was her understanding that three people had apologised to the patient. 393 She said that she had not had a conversation with Ms Carr about her discussion with the patient, nor, with Dr Stegeman.394
[110] Ms Lewis stated that she had made her decision that Ms Olcayoz was guilty of serious misconduct and that her conduct was unprofessional after she had all of the information. 395 She confirmed that she took a number of matters into account in making her decision. These included Ms Olcayoz’s level of experience in theatre. She believed that, with Ms Olcayoz’s experience, there were other alternatives that could have been put in place instead of her leaving the theatre.396 She said that she gave a lot of weight to Ms Olcayoz’s 20 years of unblemished service except for the smoking incident. She stated that, what had happened regarding that incident, had influenced her decision.397 Ms Lewis confirmed that she took into account what Ms Olcayoz had said in her letter about her state of mind and her capacity to continue safely.398
[111] With respect to the offer of alternative employment given to Ms Olcayoz, Ms Lewis indicated that Ms Olcayoz would have been paid at the highest grade 2 level because of her years of experience. Consideration would also have been given to employing her in an area which used her skills. 399 She said that, if Ms Olcayoz had accepted the offer, her conditions of employment would have continued. In terms of her pay, Ms Lewis said that she would have looked at what Ms Olcayoz was currently being paid and may have negotiated salary maintenance for a period of time. She then may have reclassified her to the highest grade 2 level which is one level lower than her current clinical nurse specialist classification.400 Ms Lewis confirmed that there would have been a small change in Ms Olcayoz’s classification and a reduction in pay of approximately $30 a week.401 Further, Ms Lewis stated that she had a reasonable number of vacant positions. She recalled that in making the offer, she would have looked to see what skills Ms Olcayoz had, to try and make sure that a position could be found.402 Ms Lewis agreed that, implicit in the offer, was disciplinary action in relation to Ms Olcayoz’s conduct.403 Ms Lewis recalled that she had indicated that, going back to theatre immediately, was not an option. However, she had said that, in the future, it could be.404
[112] She said that the applicant was already on a first written warning for her blatant disregard of the smoking policy. 405 She recalled that Ms Olcayoz had admitted that she had smoked on the hospital grounds.406 It was Ms Lewis’s evidence that she had provided a written warning to Ms Olcayoz regarding smoking.407
[113] It was Ms Lewis’s view that, at this stage, re-employment was not an option. She stated that management personnel had lost trust and confidence in Ms Olcayoz. 408 With respect to whether there would be any obstacles to Ms Olcayoz returning to work as a theatre nurse, Ms Lewis said that she would need to discuss that because of what had evolved at the hospital and what was likely to happen as a result. She explained that she has been told that, with the hearing, the letter sent by the 8 doctors and the meetings, there has been a considerable amount of damage done. This was said to be with respect to relationships between management and the medical staff and also between nursing staff and medical staff in the theatres. She said that people have been polarised by what has happened and that there are now sides in the theatres. Ms Lewis elaborated by saying that she has been told that there are some people who are concerned about Ms Olcayoz’s reinstatement and others concerned about non-reinstatement.409
SUBMISSIONS
APPLICANT
[114] Mr Harding, on behalf of the applicant, submitted that the essence of the case was that Ms Olcayoz was the victim of an outburst from Ms Doyle on 9 February 2010 and, because of that, she became emotionally upset and felt unable to safely continue in theatre. She then left the theatre for that reason. 410
[115] With respect to the risk to the patient, Mr Harding described this issue to be whether the anaesthetic procedure had started and, also, at what point does the anaesthetic process commence, in relation to the time Ms Olcayoz left the theatre. It was argued that the evidence of Dr Robertson, Director of Anaesthetics, was that it is at the point when the anaesthetic is injected through the spinal needle into the spinal fluid that the significant clinical risk arises. Mr Harding contended that the best evidence that has been presented to the Tribunal was that of Ms Olcayoz who said that, as she was leaving theatre, she passed the patient’s exposed back and there was no spinal needle in the patient’s back. 411 Dr Janda’s evidence was described as somewhat confused and it was argued that he had a very poor recollection of what had happened that day. There was said to be an inconsistency between his statement and his evidence during cross examination regarding when he went to get scrubbed - prior to Ms Doyle coming back into theatre or after.412 However, it was contended that, based on his evidence, one could be sure that Dr Janda would not have started without the assistance of an anaesthetic nurse.413
[116] Further, Mr Harding highlighted Dr Stegeman’s evidence as representing senior medical evidence. He said that Dr Stegeman had stated that she did not perceive any danger at that time and she did not feel unsafe during the entire situation. 414 In addition, it was stated that there did not appear to be a serious dispute on the evidence regarding Ms Olcayoz going out of theatre twice to get Ms Doyle at the behest of Dr Janda.415 In addition, Mr Harding contended that the evidence showed that Dr Janda had not asked Ms Olcayoz to take Ms Doyle’s role and to get him another needle but had requested that she find Ms Doyle.416 The evidence of Ms Lewis was highlighted regarding Ms Olcayoz as scout nurse not performing the role of anaesthetic nurse unless there was a special reason for her to do so. The ACORN Standards were said to support this. Mr Harding also stated that there had been no emergency and that everything had happened very quickly.417 It was contended that no other circumstances had been identified by the respondent that should have caused Ms Olcayoz to extend her function in theatre to perform both the scout nurse role and the anaesthetic nurse role.418
[117] Of greater significance was said to be that the Tribunal is not faced with a contest between two protagonists. Rather, there was consistency between the account of Ms Olcayoz and that of Ms Doyle. Mr Harding indicated that, on occasions, Ms Doyle was unable to recollect what had happened but he argued that, in terms of the basic facts, there is a consistency between the two accounts. 419 He stated that Ms Doyle and Ms Olcayoz were simply giving truthful evidence about a shared experience. It was acknowledged that Ms Doyle had stated that she and Ms Olcayoz were friends but he said that did not mean that Ms Doyle was telling lies. Mr Harding argued that there was nothing in the evidence of Ms Doyle that was anything other than credible and honest.420
[118] In addition, Mr Harding contended that a number of facts had not really been challenged. The first one was said to be that Ms Olcayoz had left theatre for a justifiable and professional reason. It was submitted that the reason was supported by the Standards and by the evidence of Dr Stegeman, Dr Robertson, Ms Carr, Ms Doyle and finally, Ms Lewis. It was stated that it had not been suggested that Ms Olcayoz was lying about her reasons for leaving. Therefore, they should be accepted. 421
[119] Secondly, Mr Harding argued that there was no serious challenge to the fact that, when Ms Olcayoz left theatre, she told her senior, Ms Doyle, that she was unable to continue. This was said to be what Ms Olcayoz was required to do. However, it was submitted that, in the change room, Ms Olcayoz went one step further and asked Ms Doyle about the staffing in the theatre. 422
[120] Mr Harding argued that the alleged risk to the reputation of the hospital is a non issue. He stated that Dr Stegeman and Ms Carr had both apologised to the patient and her husband and there was no complaint by either of them that Ms Lewis or Ms Carr were aware of. 423
[121] In terms of the issue of an argument occurring between Ms Doyle and Ms Olcayoz, Mr Harding highlighted their evidence in which they said that they did not have an argument but both conceded that they may have had their voices raised. 424 It was pointed out that the exchanges of sentences were precipitated by the conduct of Ms Doyle and not by Ms Olcayoz. It was contended that Ms Olcayoz was the victim not the perpetrator. The Tribunal was reminded that it is the conduct of Ms Olcayoz that is being considered in this matter and not that of Ms Doyle.425 Mr Harding submitted that the evidence supports a finding that there was no serious misconduct that put the health and safety of the patient at serious and imminent risk. Secondly, it was argued that there was no neglect of duty by Ms Olcayoz and no reputational damage to do the hospital.426
[122] It was submitted by Mr Harding that there was not a valid reason for the termination of the applicant’s employment. 427 He argued that the alleged serious misconduct did not occur, or even if it did, it did not justify termination. Therefore, there was no valid reason for the applicant's dismissal.428 The misconduct that was alleged was that Ms Olcayoz’s conduct had put the patient at serious and imminent risk of harm.429 Given the nature of the allegations, it was stated that the Tribunal must be persuaded, on clear and cogent evidence, that Ms Olcayoz put the patient at serious and imminent risk of harm.430 Mr Harding argued that the evidence did not go anywhere near that in that it was quite circumstantial. He said that the only direct evidence was that of Ms Olcayoz who, when she had walked out of theatre, looked at the patient's back and saw no spinal needle in her back.431
[123] In the alternative, Mr Harding submitted that it was a disproportionate penalty even if there was some misconduct. 432 He pointed to Ms Lewis’s decision-making factors which included 20 years of unblemished service apart from a warning in 2009. He stated that there was no criticism at all of her skills and diligence as a senior nurse contained in the evidence of many of the witnesses.433 It was stated that there had been a procession of people, most of whom came along voluntarily, who gave evidence that they would gladly work with Ms Olcayoz again.434 The exception to this was said to be Ms Lewis.435
[124] It was also Mr Harding’s submission that, as the result of Ms Lewis’ conduct during the meeting on 16 February 2010, she did not provide the applicant with a reasonable opportunity to respond to the claim. 436
[125] With respect to remedy, Mr Harding submitted that the changes embodied in the Fair Work Act makes it plain that the emphasis is on reinstatement and that compensation should be considered if reinstatement is considered inappropriate. 437 It was argued that the Tribunal should find that reinstatement is appropriate. Mr Harding contended that Ms Lewis could not point to one objection to reinstatement.438 Further it was indicated that, from the evidence, Ms Carr had not lost confidence in Ms Olcayoz and neither had Dr Robertson or Dr Stegeman, together with other witnesses.439 Mr Harding argued that the letter of support that has been signed by the eight medical staff should also be taken account of.440 It was stated that, of the respondent’s management personnel, it was only Ms Lewis who gave evidence regarding an alleged loss of confidence in Ms Olcayoz.441 It was Mr Harding's view that the suggestion made by Ms Lewis that there was a connection between the smoking incident in 2009 and what happened on 9 February 2010 was ridiculous. He argued that the two events were completely unrelated and that Ms Olcayoz’s implied wilfulness is not a barrier to reinstatement.442 In support of this contention, the Tribunal was referred to the decision of the Industrial Relations Court in Perkins v Grace Worldwide (Australia) Pty Ltd [72 IR 186].443
[126] In terms of reinstatement, Mr Harding submitted that Ms Olcayoz should be reinstated to the position she previously occupied in theatre as a clinical nurse specialist (urology) and a specialist theatre nurse. 444 It was argued that, an employee who has been found to have been unfairly dismissed, should not be penalised in terms of their work by an order of the Tribunal. Accordingly, consideration should not be given to the reinstatement of Ms Olcayoz on the basis of the offer that had been put to her by the respondent.445 Further, it was submitted that the period between the date of dismissal and the date of the Tribunal's order should be counted as service and that Ms Olcayoz be paid lost remuneration for the same period.446
[243] There are no other matters that I consider relevant.
Harsh, unjust or unreasonable?
[244] In all of the circumstances of this matter and having taken account of each of the factors in s.387 of the Act, I determine that the termination of Ms Olcayoz’s employment was harsh, unjust or unreasonable.
[245] It therefore follows that, pursuant to s.385 of the Act, Ms Olcayoz has been unfairly dismissed.
REMEDY
[246] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[247] With respect to the requirements of s.390, I am satisfied that Ms Olcayoz was protected from unfair dismissal at the time of her dismissal (s.390(1)(a)) and that Ms Olcayoz has been unfairly dismissed (s.390(1)(b)). Further, Ms Olcayoz has made an application under s.394 of the Act (s.390(2)).
[248] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met. The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). Ms Olcayoz sought reinstatement. This was opposed by the respondent.
[249] This matter is somewhat unusual regarding some of the material before me on this aspect of the case. In evidence is a letter signed by 8 of the medical staff of the hospital seeking that Ms Olcayoz and Ms Doyle be returned to the hospital. Further, Dr Robertson had initially resigned over the dismissal of the two nurses. As well, a number of the applicant’s witnesses gave evidence that they could work with Ms Olcayoz in the future if she was reinstated eg. Dr O’Leary, Dr Chew and Dr Mortensen.
[250] For the respondent’s part, Ms Lewis’ evidence was that she did not believe that reinstatement was an option. 643 She stated that, if reinstatement was ordered, she would need to discuss it with the Director of Human Resources and the Chief Executive Officer.644 She could not see an obstacle to reinstatement, if ordered, unless the hospital appealed.645 Ms Lewis, during re-examination indicated that, since the incident had occurred, a great deal of damage had been done to relationships within the organisation.646 Further, it was said by Ms Lewis that it did not matter which way the case went as she was told that there were now sides in the theatre.647
[251] I have carefully considered the issue of reinstatement and have formed the view that I am satisfied, on balance, that reinstatement is appropriate in all of the circumstances of this matter. On the one hand, in evidence is the letter signed by eight doctors sent to the Chief Executive Officer, seeking a review of the decision to terminate Ms Olcayoz (and Ms Doyle). Three senior medical personnel gave oral evidence that they would be willing to work with Ms Olcayoz in the future. For the respondent’s part, reinstatement is opposed and the reason for this appears to be the damage that has been caused to relationships and Ms Lewis’ understanding that employees in theatre are now “taking sides” regarding the possibility of Ms Olcayoz’s reinstatement. However, except for Ms Lewis’ assertions during re-examination, there is no other material before me to support Ms Lewis’ contentions. Therefore, given that the primary remedy under the Act is reinstatement, I have not been convinced by the respondent that reinstatement is inappropriate.
[252] As I have found that reinstatement is appropriate, pursuant to s.390(3)(a), s.390(3)(b) does not apply.
Order for reinstatement
[253] Section 391 of the Act sets out the requirements for an order for a person’s reinstatement.
Section 391(1) - reinstatement
[254] In accordance with the requirements of s.391(1), the Tribunal orders that Goulburn Valley Health (Ms Olcayoz’s employer at the time of dismissal) reinstate Ms Olcayoz by appointing her to the position of clinical nurse specialist urology in the operating theatres. This was the position in which Ms Olcayoz was employed immediately before dismissal.
Section 391(2) - continuity of employment and service
[255] Section 391(2) provides that Fair Work Australia may make an order that Fair Work Australia considers appropriate to maintain the continuity of the person’s employment and the period of the person’s continuous service with the employer. In all of the circumstances, I will exercise my discretion and order that the continuity of Ms Olcayoz’s employment and the period of Ms Olcayoz’s service with the respondent be maintained.
Section 391(3) - remuneration lost
[256] Section 391(3) provides Fair Work Australia with the discretion to order the employer to pay the person for the remuneration lost because of the dismissal. In determining an amount, Fair Work Australia is required to take into account any remuneration earned between the dismissal and the making of the order for reinstatement and the amount of remuneration likely to be earned in the period between making the order for reinstatement and the actual reinstatement (s.391(4)(a) and (b).
[257] The applicant was summarily dismissed effective on 19 February 2010. At the time of the hearing, it was the applicant’s evidence that she had received payments from Centrelink of $3517 from 20 February 2010 until the date of the first hearing day - 15 June 2010. 648 This was a period of approximately 16 weeks. Therefore, Ms Olcayoz’s weekly income from Centrelink was $219.81 The applicant worked five shifts a fortnight for the hospital (approximately 40 hours per fortnight) and earned, for the year ending 30 June 2009 - $31,645.649 It was Ms Olcayoz’s evidence that her pattern of work between July 2009 and February 2010 was the same as it was in the 08/09 financial year. Therefore, Ms Olcayoz’s weekly salary may be assumed to have been $608.56. It should be noted that the material before the Tribunal regarding the financial aspects of the case was not particularly detailed. It was not challenged by the respondent. However, out of necessity, certain assumptions will need to be made.
[258] In terms of an order to restore lost pay, it is in my view appropriate to award an amount for some of the remuneration lost because of the dismissal. With respect to the period between the dismissal and making the order for reinstatement, I have decided that, as the dismissal was summary, to award an amount of remuneration equivalent to the notice period - 5 weeks from the date of dismissal.
[259] However, from the end of the notice period (27 March 2010) until the date of the first hearing (15 June 2010), it is not appropriate to award an amount for the remuneration lost for that period. The reason for this is that, although Ms Olcayoz’s conduct was not serious misconduct, it was unacceptable and unprofessional behaviour to engage in an argument which could be heard in theatre by a patient and her partner and others in the surgical team. From 16 June 2010 until 25 February 2011 (date of the making of the order for reinstatement), it is appropriate, in my view, to award an amount for the remuneration lost for that period.
[260] With respect to the requirements of s.391(4)(a) and (b) it is assumed that Ms Olcayoz has remained on Centrelink payments and has not obtained alternative employment, as the Tribunal has not been advised of any change to Ms Olcayoz’s circumstances. If the situation has changed and Ms Olcayoz’s income has increased, leave is granted for Ms Olcayoz to advise the Tribunal and the respondent of the changes and the appropriate alterations will be made to the calculations.
[261] In terms of s.391(4)(b), given the assumption set out above, it is likely that the applicant will have received Centrelink payments for the period from the making of the reinstatement order and the actual reinstatement (28 days later).
[262] Therefore, the Tribunal considers it appropriate that the respondent pay Ms Olcayoz an amount for the remuneration lost because of the dismissal, on the following basis:
- 20 February 2010 to 27 March 2010 (5 weeks) - $608.56 minus $219.81 x 5 = $1943.75
- 16 June 2010 to 25 February 2011 (36 weeks) - $608.56 minus $219.81 x 36 = $13,995.00
- 25 February 2011 to 25 March 2011 (4 weeks) - $608.56 minus $219.81 x 4 = $1555
[263] The total amount for the remuneration lost is $17,493.75.
[264] An order 650 with respect to s.391(1), (2) and (3) will be issued separately.
COMMISSIONER
1 Transcript PN 82, 131
2 Ibid PN 163
3 Ibid PN 82, 131
4 Ibid PN 163
5 Ibid PN 82, 131 and 516
6 Ibid PN 131
7 Ibid PN 100
8 Ibid PN 95, 100
9 Ibid PN 165
10 Ibid PN 517
11 Ibid PN 165
12 Ibid PN 347
13 Ibid PN 330 - 333, 378
14 Ibid PN 392 - 393
15 Ibid PN 339
16 Ibid PN 337
17 Ibid PN 401
18 Ibid PN 402 - 403
19 Ibid PN 334
20 Ibid PN 517
21 Ibid PN 133, 164, 267 and 517
22 Ibid PN 133, 164, 348, 381 - 382
23 Ibid PN 383
24 Ibid PN 133, 348, 414 and 517
25 Ibid PN 519
26 Ibid PN 134, 519 and 549
27 Ibid PN 520
28 Ibid PN 135, 543, 560 and 574
29 Ibid PN 561, 575-577
30 Ibid PN 136
31 Ibid
32 Ibid PN 136, 415, 520 - 521
33 Ibid PN 136
34 Ibid PN 462
35 Ibid PN 137
36 Ibid
37 Ibid PN 483
38 Ibid PN 546-548
39 Ibid PN 354
40 Ibid PN 357
41 Ibid PN 587
42 Ibid PN 344
43 Ibid PN 344, 586
44 Ibid PN 586
45 Ibid PN 146
46 Ibid
47 Ibid PN 161
48 Ibid PN 179, 186 - 187
49 Ibid PN 198
50 Ibid PN 464
51 Ibid PN 205 - 206, 628
52 Ibid PN 649 - 650
53 Ibid PN 340, 344 - 345
54 Ibid PN 137, 349
55 Ibid PN 137
56 Ibid PN 346
57 Ibid PN 588
58 Ibid PN 179, 193, 349, 643 - 647
59 Ibid PN 349, 418
60 Ibid PN 349
61 Ibid PN 474 - 475
62 Ibid PN 476 - 478
63 Ibid PN 365, 466
64 Ibid PN 466 - 467
65 Ibid PN 366
66 Ibid PN 166, 384
67 Ibid PN 138, 389, 479, 482, 484 - 485
68 Ibid PN 487
69 Ibid PN 138
70 Ibid PN 138
71 Ibid PN 153, 268
72 Ibid PN 138, 593
73 Ibid PN 159
74 Ibid PN 245
75 Ibid PN 280
76 Ibid PN 285 - 287
77 Ibid PN 674 - 689
78 Ibid PN 300, 317 - 318
79 Ibid PN 444
80 Ibid PN 451 - 452
81 Ibid PN 172
82 Ibid PN 195
83 Ibid PN 204
84 Exhibit A2 at paragraph 45
85 Transcript PN 489 - 491
86 Ibid PN 500
87 Ibid PN 493 - 494
88 Ibid PN 501, 608
89 Ibid PN 501, 608
90 Ibid PN 501
91 Ibid PN 608
92 Ibid PN 194
93 Ibid PN 210, 610
94 Ibid PN 211, 627
95 Exhibit R5 at Attachment WL10
96 Transcript PN 209, 662 - 664
97 Ibid PN 209, 640 - 641 and 661
98 Ibid PN 218 - 220, 609 - 610
99 Ibid PN 222 - 223
100 Ibid PN 731 - 734
101 Ibid PN 797, 805
102 Ibid PN 801
103 Ibid PN 758 - 761
104 Ibid PN 805
105 Ibid PN 984 - 985, 1004
106 Ibid PN 1069
107 Ibid PN 748 - 749
108 Ibid PN 904, 1069
109 Ibid PN 1069
110 Ibid
111 Ibid PN 750 - 751
112 Ibid PN 749
113 Ibid PN 748
114 Ibid PN 895
115 Ibid PN 750 - 751
116 Ibid PN 799, 862
117 Ibid PN 753 - 755
118 Ibid PN 1006
119 Ibid PN 882
120 Ibid PN 1069
121 Ibid PN 765 - 767
122 Ibid PN 796, 798 and 881
123 Ibid PN 983
124 Ibid PN 993
125 Ibid PN 865
126 Ibid PN 863, 1010 and 1015
127 Ibid PN 909
128 Ibid PN 1016
129 Ibid PN 1018 - 1021
130 Ibid PN 905
131 Ibid PN 776, 785
132 Ibid PN 790
133 Ibid PN 820 - 821
134 Ibid PN 822
135 Ibid PN 777 - 778, 1068
136 Ibid PN 890
137 Ibid PN 1024, 1028
138 Ibid PN 906 - 908
139 Ibid PN 777 - 778
140 Ibid PN 1030
141 Ibid PN 1030 - 1032
142 Ibid PN 780, 1056 - 1058
143 Ibid PN 1055
144 Ibid PN 851, 979
145 Ibid PN 981 - 982
146 Ibid PN 1130 - 1131
147 Ibid PN 1156
148 Ibid PN 1122 - 1124
149 Ibid PN 1138
150 Ibid PN 1143 - 1145
151 Ibid PN 1149
152 Ibid PN 1152
153 Ibid PN 1155
154 Ibid PN 1197 - 1198
155 Ibid PN 1211, 1232
156 Ibid PN 1234 - 1237
157 Ibid PN 1253 - 1256
158 Ibid PN 1477
159 Ibid PN 1257 - 1259
160 Ibid PN 1479
161 Ibid PN 1481
162 Ibid PN 1626
163 Ibid PN 1260
164 Ibid PN 1504
165 Ibid PN 1510
166 Ibid PN 1537 - 1538
167 Ibid PN 1359 - 1360
168 Ibid PN 1273 - 1274
169 Ibid PN 1275, 1288 and 1290
170 Ibid PN 1304 - 1305
171 Ibid PN 1307, 1311, 1489 and 1539
172 Ibid PN 1498
173 Ibid PN 1316 - 1317
174 Ibid PN 1318
175 Ibid PN 1306 - 1309, 1485
176 Ibid PN 1490
177 Ibid PN 1617 - 1619
178 Ibid PN 1402, 1482 and 1517
179 Ibid PN 1362 - 1363, 1486
180 Ibid PN 1484
181 Ibid PN 1375 - 1376
182 Ibid PN 1310
183 Ibid PN 1488
184 Ibid PN 1338 - 1342
185 Ibid PN 1403
186 Ibid PN 1343 - 1344, 1542 - 1543
187 Ibid PN 1373
188 Ibid PN 1374
189 Ibid PN 1345 - 1346
190 Ibid PN 1351 - 1352
191 Ibid PN 1547 - 1549, 1563, 1587 - 1588, 1611 - 1613
192 Ibid PN 1357
193 Ibid PN 1312, 1319
194 Ibid PN 1335
195 Ibid PN 1379
196 Ibid PN 1369 - 1370, 1379, 1518
197 Ibid PN 1526, 1546
198 Ibid PN 1320, 1573, 1625
199 Ibid PN 1640
200 Ibid PN 1622
201 Ibid PN 1320
202 Ibid PN 1361, 1365, 1512
203 Ibid PN 1364, 1526
204 Ibid PN 1483
205 Ibid PN 1366 - 1367, 1380
206 Ibid PN 1636
207 Ibid PN 1442
208 Ibid PN 1433
209 Ibid PN 1336
210 Ibid PN 1325 - 1329, 1569
211 Ibid PN 1565
212 Ibid PN 1331
213 Ibid PN 1332, 1533 - 1535, 1572
214 Ibid PN 1333
215 Ibid PN 1337, 1575
216 Ibid PN 1333, 1390 - 1391
217 Ibid PN 1407
218 Ibid PN 1333
219 Ibid PN 1406
220 Ibid PN 1354 - 1356
221 Ibid PN 1410 - 1413
222 Ibid PN 1421
223 Ibid PN 1423 - 1424
224 Ibid PN 1438 - 1439
225 Ibid PN 1439 - 1440
226 Ibid PN 1425
227 Ibid PN 1448
228 Ibid PN 1598 - 1599
229 Ibid PN 1594
230 Ibid PN 1691, 1699
231 Ibid PN 1708 - 1712
232 Ibid PN 1718
233 Ibid PN 1725 - 1726
234 Ibid PN 1760 - 1763
235 Ibid PN 1775 - 1780
236 Ibid PN 1926 - 1929
237 Ibid PN 1790, 1795
238 Ibid PN 1790
239 Ibid PN 1800 - 1803
240 Ibid PN 1804
241 Ibid PN 1822
242 Ibid PN 1839
243 Ibid
244 Ibid PN 1840
245 Ibid PN 2029
246 Ibid PN 1807, 1973
247 Ibid PN 1816 - 1817
248 Ibid PN 2042
249 Ibid PN 1951
250 Ibid PN 1974, 1981
251 Ibid PN 1983 - 1984
252 Ibid PN 1958, 2042
253 Ibid PN 1955
254 Ibid PN 1808 - 1810, 1824 and 2039
255 Ibid PN 2054 - 2055
256 Ibid PN 1897 - 1900
257 Ibid PN 1825 - 1826
258 Ibid PN 1872, 1878 - 1879
259 Ibid PN 1872 - 1873, 1954
260 Ibid PN 1896, 1965
261 Ibid PN 1936 - 1940
262 Ibid PN 1961 - 1964
263 Ibid PN 1966
264 Ibid PN 1948, 1950
265 Ibid PN 1956 - 1957
266 Ibid PN 1985, Attachment WL9 to Exhibit R5
267 Ibid PN 2035, 2037 - 2038
268 Ibid PN 1995, 2031, 2047 - 2048
269 Ibid PN 2024 - 2026
270 Ibid PN 2020
271 Ibid PN 2162 - 2190
272 Ibid PN 2162 - 2164
273 Ibid PN 2224 - 2230
274 Ibid PN 2165, 2167
275 Ibid PN 2166
276 Ibid PN 2235
277 Ibid PN 2174 - 2176
278 Ibid PN 2177 - 2179
279 Ibid PN 2183 - 2184
280 Ibid PN 2246 - 2247
281 Ibid PN 2269
282 Ibid PN 2249
283 Ibid PN 2250
284 Ibid
285 Ibid PN 2275
286 Ibid PN 2168 - 2169
287 Ibid PN 2258
288 Ibid PN 2193 - 2194
289 Ibid PN 2265, 2291
290 Ibid PN 2292 - 2293
291 Ibid PN 2219, 2266 - 2267
292 Ibid PN 2197
293 Ibid PN 2321
294 Ibid PN 2322 - 2323, 2337
295 Ibid PN 2322 - 2327
296 Ibid PN 2329 - 2330
297 Ibid PN 2366
298 Ibid PN 2398
299 Ibid PN 2399
300 Ibid PN 2380 - 2383, 2400 - 2402
301 Ibid PN 2405 - 2406, 2492 - 2494
302 Ibid PN 2495 - 2496
303 Ibid PN 2500
304 Ibid PN 2501
305 Ibid PN 2504 - 2505, 2528 - 2529, 2531
306 Ibid PN 2506, 2511, 2530 and 2533
307 Ibid PN 2534 - 2535
308 Ibid PN 2512 - 2513
309 Ibid PN 2514, 2570
310 Ibid PN 2571 - 2579
311 Ibid PN 2516
312 Ibid PN 2522 - 2525
313 Ibid PN 2525
314 Ibid PN 2517 - 2520
315 Ibid PN 2521
316 Ibid PN 2385 - 2387, 2393
317 Ibid PN 2390 - 2391, 2397
318 Ibid PN 2394, 2395
319 Ibid PN 2395 - 2396
320 Ibid PN 2417 - 2419
321 Ibid PN 2584
322 Ibid PN 2397
323 Ibid PN 2422
324 Ibid PN 2429 - 2453
325 Ibid PN 2457 - 2480
326 Ibid PN 2484 - 2485
327 Ibid PN 2629, 2632
328 Ibid PN 2634 - 2639
329 Exhibit R3 at paragraph 7 and Ibid PN 2647 - 2648
330 Transcript PN 2650 and Exhibit R3 at paragraph 9
331 Exhibit R3 at paragraph 8 and Transcript PN 2652
332 Exhibit R3 at paragraph 9 and Ibid PN 2663 - 2665
333 Transcript PN 2668 - 2671
334 Ibid PN 2727
335 Ibid PN 2626, 2673
336 Ibid PN 2673 - 2675
337 Ibid PN 2624, 2678 - 2679
338 Ibid PN 2625, 2676 - 2677
339 Ibid PN 2626 - 2627
340 Ibid PN 2685 - 2686, 2691, 2731 - 2734
341 Ibid PN 2687 - 2690, Exhibit R3 at paragraph 12
342 Transcript PN 2692
343 Ibid PN 2692 - 2693
344 Ibid PN 2704 - 2708
345 Ibid PN 2710, 2712 and 2721
346 Ibid PN 2713 - 2719, Exhibit R3 at paragraph 15
347 Ibid PN 2720
348 Ibid PN 2758
349 Ibid PN 2757
350 Ibid PN 2788 - 2789
351 Exhibit R4 at paragraph 3 and Transcript PN 2796 - 2799, 2805 and 2807
352 Ibid at paragraph 8 and PN 2800
353 Transcript PN 2803 - 2804
354 Ibid PN 2809 - 2810, 2827
355 Ibid PN 2811 - 2813
356 Ibid PN 2815 - 2816
357 Ibid PN 2820 - 2821
358 Ibid PN 2822 - 2824
359 Ibid PN 2826 - 2827
360 Ibid PN 2830 - 2834 and Exhibit 4 at paragraph 11
361 Ibid PN 2932 - 2934
362 Ibid PN 2935 - 2936
363 Ibid PN 2937 - 2938, 2941 - 2942
364 Ibid PN 2943
365 Ibid PN 2894
366 Ibid PN 2897
367 Ibid PN 2947
368 Ibid PN 2895
369 Ibid PN 2896 - 2897, 2948
370 Ibid PN 2951 - 2953
371 Ibid PN 2961 - 2964
372 Ibid PN 2984
373 Ibid PN 2958 - 2960
374 Ibid PN 2966 - 2970
375 Ibid PN 2971
376 Ibid PN 2975 - 2977
377 Ibid PN 2978 - 2979
378 Ibid PN 2981 - 2983
379 Ibid PN 2985
380 Ibid PN 2989, 2993 and 2995
381 Ibid PN 2998
382 Ibid PN 3000 - 3001
383 Ibid PN 3002 - 3003
384 Ibid PN 3004 - 3009
385 Ibid PN 3010
386 Ibid PN 3012
387 Ibid PN 3013, 3015
388 Ibid PN 3016 - 3017
389 Ibid PN 3016 - 3017, 3022 - 3023
390 Ibid PN 3058 - 3059
391 Ibid PN 3062 - 3064, 3082
392 Ibid PN 3078 - 3079, 3081
393 Ibid PN 3084 - 3088
394 Ibid PN 3089 - 3091
395 Ibid PN 3094 - 3096
396 Ibid PN 3099 - 3101
397 Ibid PN 3102 - 3105
398 Ibid PN 3107
399 Ibid PN 2890 - 2891
400 Ibid PN 2891 - 2892
401 Ibid PN 2904
402 Ibid PN 2911 - 2912
403 Ibid PN 2917
404 Ibid PN 2898 - 2899
405 Ibid PN 2888 - 2889, 2919, 2921 - 2922
406 Ibid PN 2888 - 2889, 2925 - 2926
407 Ibid PN 2888 - 2889
408 Ibid PN 3120 - 3124
409 Ibid PN 3138 - 3140, 3167 - 3173
410 Ibid PN 3191
411 Ibid PN 3192 - 3193
412 Ibid PN 3195
413 Ibid PN 3194
414 Ibid PN 3198 and Exhibit A12 at paragraph 32
415 Ibid PN 3198
416 Exhibit A12 at paragraphs 12-13 and 15
417 Transcript PN 3199
418 Ibid PN 3200 and Exhibit A12 at paragraph 17
419 Ibid PN 3202
420 Ibid PN 3204
421 Ibid PN 3206
422 Ibid PN 3207
423 Ibid PN 3209 - 3210
424 Ibid PN 3211 and Exhibit A12 at paragraph 19
425 Ibid PN 3212
426 Ibid PN 3213
427 Exhibit A12 at paragraph 41
428 Transcript PN 3214
429 Exhibit A12 at paragraph 42
430 Ibid and Transcript PN 3216
431 Transcript PN 3217
432 Ibid PN 3218 and Exhibit A12 at paragraph 44
433 Ibid PN 3218
434 Ibid PN 3219 and Exhibit A12 at paragraph 44(b)
435 Ibid PN 3219
436 Exhibit A12 at paragraph 45
437 Transcript PN 3220 - 3223
438 Ibid PN 3224
439 Exhibit A12 at paragraph 54
440 Exhibit R5 at attachment WL9 and Exhibit A12 at paragraph 55
441 Transcript PN 3225
442 Ibid PN 3226
443 Ibid PN 3227 - 3232, Exhibit A12 at paragraph 53
444 Ibid PN 3235 and Ibid at paragraph 46
445 Transcript PN 3250
446 Exhibit A12 at paragraph 57
447 Transcript PN 3529
448 Ibid
449 Ibid
450 Ibid PN 3260
451 Ibid PN 3263
452 Ibid
453 Ibid
454 Ibid PN 3264
455 Ibid PN 3265
456 Ibid PN 3266
457 Ibid N 3273
458 Exhibit R5 at WL4
459 Transcript PN 3278
460 Ibid PN 3280
461 Ibid
462 Ibid PN 3281
463 Ibid PN 3283 - 3284
464 Ibid PN 3285
465 Ibid PN 3287
466 Ibid PN 3287 - 3294
467 Ibid PN 3295
468 Ibid PN 3296
469 Ibid PN 3297 - 3298
470 Ibid PN 3298
471 Ibid PN 3299
472 Ibid PN 3300
473 Ibid PN 3301
474 Ibid PN 3302 and Exhibit R5 at Attachment WL4
475 Ibid PN 3303 and ibid at Attachment WL5
476 Ibid PN 3303 and Ibid at Attachment WL6
477 Transcript PN 3303
478 Ibid PN 3304
479 Ibid
480 Ibid PN 3306
481 Ibid PN 3308
482 Ibid PN 3309
483 Ibid PN 3310 - 3312
484 Ibid PN 3313
485 Ibid PN 3314
486 Ibid PN 3318
487 Full Court of the Industrial Relations Court of Australia, 22 April 1996 (1996) 67 IR 240; Transcript PN 3322 - 3326
488 Transcript PN 3327
489 Ibid PN 3328
490 Ibid PN 3331
491 Ibid PN 3346
492 Ibid PN 3347
493 Ibid PN 3349
494 Ibid PN 3350
495 Ibid PN 3351
496 Ibid PN3359
497 Ibid PN 3362
498 Ibid PN 3365
499 Exhibit R5 at Attachment WL6
500 Ibid at Attachment WL4
501 Ibid
502 Ibid at Attachment WL6
503 Ibid at Attachment WL4
504 Ibid
505 Exhibit R1
506 Exhibit R1 at paragraph 15
507 Exhibit R5 at Attachment WL4
508 Ibid PN 82, 131
509 Ibid PN 2405 - 2406, 2492 - 2494
510 Ibid PN 2506, 2511, 2530, 2533
511 Ibid PN 2512 - 2513, 1304 - 1305
512 Ibid PN 165, 758 - 761 and 2650, Exhibit R3 at paragraph 9
513 Ibid PN 347, 758 - 761 and 2650, Exhibit R3 at paragraph 9
514 Ibid PN 2514, 2579
515 Ibid PN 2663 - 2665 and 805, Exhibit R3 at Paragraph 9
516 Ibid PN 1343 - 1344, 1542 - 1543, 2626 and 2673
517 Ibid PN 1489
518 Ibid PN 133, 348, 414 and 517
519 Ibid PN 2673 - 2675
520 Ibid PN 519, 748 - 749
521 Ibid PN 133, 348, 414, 517, 748 - 749, 1069, 1362 - 1363, 1486, 2625 and 2676 - 2677
522 Ibid PN 135, 543, 560 and 574
523 Ibid PN 1484
524 Ibid PN 2626, 2673
525 Ibid PN 134, 519, 549 and 1069
526 Ibid PN 2625, 2676 - 2677
527 Ibid PN 2624, 2678 - 2679
528 Ibid PN 1069
529 Ibid PN 136
530 Ibid PN 1306 - 1309, 1485 and 1490
531 Ibid PN 546 - 548, 895
532 Ibid PN 1312, 1319
533 Ibid PN 1335, 1379
534 Ibid PN 750 - 751, Exhibit A5 at paragraph 9
535 Ibid PN 2685
536 Ibid PN 362 - 363
537 Ibid PN 349, 418, 365, 466 - 467
538 Ibid PN 1364, 1526
539 Ibid PN 1366 - 1367, 1380 and 1483
540 Ibid PN 2687 - 2690, Exhibit R3 at paragraph 12
541 Ibid PN 2689
542 Ibid PN 2503 and Exhibit R2 at paragraph 4 - 5
543 Ibid PN 796, 798 and 881
544 Ibid PN 137, 349, Exhibit A2 at paragraph 41
545 Ibid PN 137
546 Ibid PN 1369 - 1370
547 Ibid PN 1526
548 Exhibit R5 at Attachment WL4
549 Transcript PN 245
550 Ibid PN 444
551 Ibid PN 674 - 689
552 Ibid PN 1143 - 1145
553 Ibid PN 1410
554 Ibid PN 1420
555 Ibid PN 905
556 Ibid PN 2177 - 2179
557 Ibid PN 2830
558 Ibid PN 2831 - 2834
559 Ibid PN 3058 - 3059
560 Ibid PN 3062 - 3064, 3082
561 Ibid PN 3078 - 3079, 3081
562 Exhibit A4 and Exhibit R5 at Attachment WL8
563 Exhibit R1 at paragraph 15
564 Transcript PN 2429 - 2453
565 Ibid PN 2467 - 2473
566 Ibid PN 1771 - 1779
567 Ibid PN 1780
568 Ibid PN 1790, 1795
569 Ibid PN 1930 - 1946, Exhibit A9 at paragraph 8
570 Ibid PN 993
571 Ibid PN 179
572 Ibid PN 344, 586
573 Ibid PN 146
574 Ibid PN 1342, 1403
575 Ibid PN 1373
576 Ibid PN 1547 - 1549, 1563
577 Ibid PN 2399
578 Ibid PN2417, 2484 - 2485
579 Ibid PN 2506, 2511
580 Ibid PN 2514 and Exhibit R2 at paragraph 7
581 Ibid PN 2522 - 2525
582 Ibid PN 2514 - 2516 and Exhibit R2 at paragraph 7
583 Ibid PN 2516
584 Ibid PN 2515 - 2516 and Exhibit R2 at paragraph 9
585 Ibid PN 2809 - 2810, 2827
586 Ibid PN 2811 - 2813
587 Ibid PN 2647 - 2648 and Exhibit R3 at paragraph 7
588 Ibid PN 2667 - 2669 and Ibid
589 Ibid PN 2671
590 Ibid P 2672
591 Ibid PN 2692
592 Ibid
593 Ibid PN 2693
594 Ibid PN 753 - 755
595 Ibid PN 344, 586
596 Ibid PN 1547 - 1549, 1563, 1587 - 1588, 1611 - 1613
597 Ibid PN 2668 - 2671, 2692 - 2693
598 Ibid PN 753 - 755
599 Ibid PN 2811 - 2813, 2809 - 2810, 2827
600 Ibid PN 1936 - 1940
601 Ibid PN 1636, 3004 - 3009
602 Ibid PN 138, 389, 479, 482, 484 - 485, 1332
603 Ibid PN 750 - 751, 2758
604 Ibid PN 136, 415, 520 - 521
605 Ibid PN 1306 - 1309, 1496, 1532, 1615 - 1616
606 Ibid PN 1369 - 1370, 1379, 1518
607 Ibid PN 2758
608 Ibid PN 3013, 3015
609 Ibid PN 3007 - 3009, 3012
610 Ibid PN 1433, 1948, 1950, 2250 and 2775
611 Ibid PN 2687 - 2690
612 Ibid PN 137, 349
613 Ibid PN 1320, 1573, 1625, 1640
614 Ibid PN 538
615 Ibid PN 1320, 1573, 1625
616 Ibid PN 1622
617 Exhibit R1 at paragraph 15
618 Transcript PN 1006
619 Ibid PN 882, 1069
620 Ibid PN 882
621 Ibid PN 2163
622 Ibid PN 2164
623 Ibid PN 2165 - 2167
624 Ibid PN 3084 - 3085 and Exhibit R5 at paragraph 43
625 Ibid PN 3086 - 3088
626 Exhibit R5 at Attachment WL 4
627 Ibid at Attachment WL 6
628 Transcript PN 501, 608, 2265, 2291 - 2293
629 Ibid PN 2947 - 2948, 2992
630 Ibid PN 2981 - 2982
631 Ibid PN 2978, 2980, 3104 - 3105 and Exhibit R5 at paragraph 48
632 Ibid PN 2980 - 3106
633 Ibid PN 2937 - 2938
634 Ibid PN 2971
635 Ibid PN 2961 - 2970
636 Ibid PN 2973 - 2974
637 Ibid PN 2989 - 2995
638 Exhibit R5 at paragraph 48
639 Ibid and Transcript PN 3100 - 3101
640 Transcript PN 3102 - 3103
641 Ibid PN 3107
642 Exhibit R5 at paragraph 48
643 Ibid PN 3121, 3124
644 Ibid PN 3120 - 3121, 3140
645 Ibid PN 3141
646 Ibid PN 3167 - 3169
647 Ibid PN 3172
648 Ibid PN 222 - 223
649 Exhibit A2 at paragraph 3 and Attachment AO1
650 PR506941
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