Ms Mariam Dafallah v Melbourne Health

[2011] FWA 7340

Note: An appeal pursuant to s.604 (C2011/6962) was lodged against this decision - refer to Full Bench decision dated 27 April 2012 [[2012] FWAFB 3540] for result of appeal.

[2011] FWA 7340

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Mariam Dafallah
v
Melbourne Health
(U2010/12331)

COMMISSIONER CRIBB MELBOURNE, 7 DECEMBER 2011

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Mariam Dafallah (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). It is alleged that the termination of her employment by Melbourne 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 on 7 and 8 December 2010 and 8 February 2011 and 4 March 2011. The respondent filed written closing submissions on 16 March 2011 and the applicant filed written submissions in reply on 21 March 2011.

[3] The applicant was represented by Mr M Willoughby-Thomas, solicitor and the respondent by Mr R Millar, of counsel.

[4] Evidence was given by Ms Dafallah, Ms C Dowsing, Registered Nurse Division 1 and Ms N Alimi, cleaner from Melbourne Health, on behalf of the Applicant. On behalf of the respondent, Mr D Milenkovski, Manager Clinical Assistants; Ms N Perez, Associate Nurse Unit Manager, Ms C Aikman, Graduate Nurse and Ms T Tebbutt, Human Resources Consultant, from Melbourne Health, gave evidence.

THE EVIDENCE

APPLICANT

Ms C Dowsing

[5] Ms Dowsing provided a written witness statement 1 and also gave oral evidence.

[6] It was Ms Dowsing’s evidence that she worked two days a week (Thursday and Friday) on Ward 5 West with Ms Dafallah and had been doing so for several years. 2 She said that her evidence was limited to those two days a week in Ward 5 West.3

[7] Ms Dowsing held the view that it was important that clinical assistants be able to undertake tasks when allocated and that they respond to a page as soon as they can. She said that, if they are able to, clinical assistants should inform nursing staff if there was going to be a delay in completing a task. 4 It was stated that there were phones on the wards but not in corridors, lifts or stairwells. A clinical assistant may not be in a ward when a page comes through so there may be a delay getting to a phone.5

[8] With respect to the time it would take to travel between various parts of the hospital, it \was Ms Dowsing’s observation that the lifts could be very slow and that it could take some time to get from the basement to the 5th floor. She said that it should not take more than 5 minutes to answer a page if a clinical assistant was travelling around the hospital. She agreed that there were different levels of urgency between the various wards and therefore different consequences of delays in answering pages. 6

[9] Ms Dowsing agreed that it was important that a clinical assistant document their movements on the whiteboard as nursing staff needed to know when the person was around. It was stated that Ms Dafallah always documented on the whiteboard when she would not be in the ward because she was on break. 7 She indicated that the expectation on Ward 5 West was that, if a clinical assistant was off the floor having a break, they would document that they were going to be off the ward for that purpose. Ms Dowsing agreed that, if a clinical assistant received a page just before they were going on a break, they should ask whether it could wait until after their break.8

[10] In her written statement, Ms Dowsing described the clinical assistant’s role and indicated that they had to make trips to the pharmacy and the Transfusion Laboratory throughout the day. This meant that the clinical assistant was out of the ward for a considerable length of time. 9 She stated that their role was not easy and was very busy and demanding.10

Ms N Alimi

[11] A written witness statement 11 was provided by Ms Alimi and she also gave oral evidence.

[12] Ms Alimi has been a union delegate and has also provided peer support for about 10 years. She has been involved with Ms Dafallah from time to time in both these roles. 12

[13] It was Ms Alimi’s evidence that, at the end of October 2009, Ms Dafallah showed her a letter that she had received from her manager. She stated that it was a final warning regarding alleged failures to answer her pages and speaking to a Nurse Unit Manager (NUM) in an unprofessional manner. 13 Ms Alimi recalled that Ms Dafallah had told her that she disputed the allegations and that her manager did not want to hear her side of the story and wanted to sack her.14 She stated that Ms Dafallah had shown her a letter she had written disputing the final warning. She advised her to send it through to the union office but no assistance was forthcoming from the union.15

[14] Ms Alimi recounted that, in about July 2010, Ms Dafallah had spoken to her about problems with the nurses about her early finishing times on Saturdays and Sundays. Ms Dafallah had told her that she had spoken to her Manager a number of times about this issue and that he had said that she should just go when it came to the end of her shift. Ms Alimi confirmed that she had not been involved in these discussions. 16

[15] It was recalled that, a short while later, she heard people talking about Ms Dafallah being terminated. She stated that she had not been involved in the disciplinary process regarding Ms Dafallah. 17 The following day, Ms Alimi recounted that she approached Ms Dafallah’s Manager, Mr Milenkovski, in the basement and asked him how his assistant and other staff members knew that he had sacked Ms Dafallah. His reply was that he did not know and that some staff should not still be at Melbourne Health. Mr Milenkovski stated that Ms Dafallah had been reported by the nursing staff.18 Ms Alimi’s observation was that, for some employees who were not performing, because none of the nursing staff had complained they had got away with it.19

[16] She explained that, because clinical assistants were part of another department, she would not be allowed to make any comments or complaints about them directly to their manager. However, she could discuss a concern with her own manager who would then take the matter up with the clinical assistants’ manager (middle management first and then senior management). 20 It was her view that management should only terminate an employee once all other avenues had been exhausted.21

[17] Based on her own experience, Ms Alimi stated that pagers did not work in the lifts or the basement. She indicated that she last used a pager at work two years ago. 22

[18] Ms Alimi recounted that she had seen Ms Dafallah immediately after her meeting with management on 3 and 12 August 2010. Ms Dafallah had described what had happened after each meeting and also what happened when she was escorted from the building on 12 August 2010. 23

Ms M Dafallah

[19] Ms Dafallah provided a written statement 24 and also gave oral evidence.

[20] Ms Dafallah stated that she had transferred from Royal Park to the Royal Melbourne Hospital in 2005. 25 She recalled that there were some pager issues raised with her in 2006 and agreed that her initial problems with pagers extended over some period of time.26 She recounted that she did not know why she could not get the pages until an incident happened and then she realised what was happening. Ms Dafallah described the incident and stated that, when she was sent down to the switchboard, they had looked at the pager and messages and found that it was registering that they had paged her although she had not received the messages. She said that the pager had then been either fixed or replaced and the problems with the pager did not happen again.27

[21] It was recalled by Ms Dafallah that Ward 9E was added to her responsibilities on a Sunday in mid 2009. She said that she was therefore required to provide assistance across three areas - Ward 2 West, 9 East and John Cade. The result of this was said to be that she did not finish work until well after her scheduled finishing time of 9.00 pm, for which she was not paid overtime. 28

[22] Ms Dafallah also indicated that she was starting for a certificate of sterilisation and that she had commenced a placement on 8 November 2010. She said that she had a second job in a nursing home. 29

[23] With respect to communication between the clinical assistants and the nurse in charge, Ms Dafallah agreed that it was important that the nurse in charge in a ward knows where the clinical assistant is. She confirmed that, when the clinical assistant arrived on the floor, they have to report to the nurse in charge. 30 She also said that she thought that there were a lot of nurses who could see that you are there and you just get on with the job you have to do.31 Ms Dafallah also agreed that, if she was going on a break, it was always important to mark on the whiteboard when she was not there. It was stated that, if she was paged, she would either do the job or let them know that she was not available or that there would be a delay. She said that it was important to keep the nursing staff up-to-date on whether she was able to do a job when it had been allocated to her.32 Ms Dafallah agreed with Mr Milenkovski's estimate that there should not be any more than a 20 minute delay in responding to a page.33

[24] In terms of being able to ring through on the telephone to respond to a page, it was stated that there are telephones on the ward but, in the corridors on the weekend, there are no telephones. She said that, if a ward clerk paged her to pick up a history, she did not need to go back up and tell them that that was what she was going to do. As well, if she was paged when she was in the basement and asked to go to chemotherapy, she would not go back up to 5 west to pick up an esky but would go straight to the chemotherapy room and get an esky from there. Also, she stated that if she was waiting for the lift and she was paged, she would not walk away from the lift and go and respond to the page and then come back to wait for the lift again as they were busy. She said that it might take 5 minutes to go and ring and come back but the lift would not be there. Ms Dafallah explained that, if she was in 2 West and 9 East paged her, she would go straight to 2 West if she could. However, if she was doing something on 2 West she would ring 9 East and tell them that she was busy on 2 West and would tell them when she could be there. It was then up to the person who had paged her to decide whether they would wait for her or find an alternative way of doing it. 34

[25] Ms Dafallah agreed with Mr Milenkovski’s estimate of the walking time between the different wards. She stated that it would be longer than 5 minutes and would be more like 10 to 12 minutes because of the waiting time for the lifts. She confirmed that 5 minutes would be ample time to travel from 2 West to John Cade but not from 2 West to the ninth floor or from the ninth floor to pathology or from 5 West to the basement. It was said that it would be a few minutes longer than 5 minutes for these trips. It was agreed that if she had been paged and within 10 minutes had either not arrived to do the job or had not let the nurse know about the delay, that would be a problem. If the page said urgent, Ms Dafallah indicated that she would go and attend to it and, if she could not, she would ring them. It was Ms Dafallah's view that the pickup or delivery of bloods on 5 West was always urgent. 35

Incidents from October 2005 - August 2007

[26] Ms Dafallah agreed that the issues with the pager had commenced in 2006 but said that there had not been a problem with her not answering a page since then as the nurses had checked her pager and found no message there. 36

[27] During cross-examination, Ms Dafallah was taken through a number of issues, including:

• 12 July 2005 - Ms Dafallah said it was a meeting not a counselling session. Was about the incorrect recording of times on her timesheet. 37



• 15 July 2005 - had not called in sick. Ms Dafallah said she had left work on 14 July 2005 very sick and the doctor had given her four days sick leave. Her Manager knew that she was off sick. 38



• 30 August 2005 - counselling session about coming in late and not documenting her starting times on her timesheet. Ms Dafallah disputed that the meeting was about the latter. 39



• 6 October 2005 - late to work when the ward required a clinical assistant and she was not at the ward at 8:20 am. Ms Dafallah said she arrived at 8:03 am but she had put 8:00 am on her timesheet. This was because she did not have a pen to write on the time sheet and she had to go to the kitchen and get one. 40 Ms Dafallah said that she had made a mistake on her timesheet regarding 6 October 2005.41



• 18 October 2005 - counselling meeting about coming in late. 42



• 22 November 2005 - an error regarding platelets - which Ms Dafallah recalled. 43



• 24 November 2005 - Ms Dafallah disagreed that the meeting concerned her starting times. Rather, it was about a complaint from 5 West when stores were left unpacked, the level of kitchen tidiness and other issues. 44



• 18 December 2005 - no response to a page by Ms Dafallah - it was a different pager number which had not been given to the ward. 45



• 12 and 14 March 2006 - paging with no response and other issues. Ms Dafallah explained the reasons for this and the other issues. 46



• Meeting on 30 March 2006 about constantly coming in late, non performance of duties, pager responses and inappropriate behaviour towards staff. Had received a letter dated 24 March 2006. Ms Dafallah recalled the issue being raised with her. Her hours were changed to accommodate her family responsibilities. 47



• 30 May 2006 - Melbourne Health agreed with Ms Dafallah that this issue did not involve her. 48



• 30 May 2006 - Ms Dafallah denied that she had left an hour earlier than she had recorded on her timesheet. She stated that this issue had never been raised with her. 49



• 31 May 2006 - Ms Dafallah denied that she was having a second break in the tea room when she was paged and that she had said that she only responded to pagers if the nurse’s name was on the page. She said that it was the nurse who had raised her voice - not her. 50



• 15 June 2006 - lack of response to pages, assumed asleep, leaving early without notification, having multiple breaks, unaccountable for lengths of time - it was denied by Ms Dafallah that any of these things had happened. 51



• 30 November 2006 - Ms Dafallah recalled a meeting regarding her punctuality. 52 She said that she was taken through a number of her timesheets. Her response was that she had put the right time in and that she would have called if she was coming in late.53



• 22 January 2007 - a complaint from another clinical assistant about Ms Dafallah not completing her work on the previous shift. She said that she finished at 4:30 pm and should not be blamed for what happened after that. 54



• 5 February 2007 - chatting outside the lifts - Ms Dafallah said that she was giving directions to a patient - not chatting. 55



• 6 March 2007 - failed to advise the ward that she was their clinical assistant for the shift, could not be found on the ward, did not properly respond to pages to attend to the person requesting her assistance, rolled her eyes and continually made excuses. Ms Dafallah could not remember what had happened but said that she did not roll her eyes but listened without saying anything. 56



• 29 March 2007 - tidiness of kitchen, blood platelets and the importance of responding to pages was discussed at the meeting. 57 She gave an assurance that there would not be any further incidents.58



• 24 April 2007 - was paged four times but did not respond and then came onto the ward at 8:20 pm without providing an explanation as to her whereabouts - Ms Dafallah indicated that she had requested her break to be at 7:00 pm instead of 6:30 pm as her son was coming in to have dinner with her. She said that she returned to the ward at 7:30 pm and took out all the chairs at 8:00 pm. 59



• 10 May 2007 - has been accessing 5 West Day Centre out of hours. Ms Dafallah explained that she left her food in the fridge on 5 West Day Centre as it was a big fridge. She had never intended to do anything wrong.⁶⁰



• 9 July 2007 - a meeting regarding her attendance and sick leave. She said that Mr Milenkovski asked her if she wanted to work part-time. 61



• 5 August 2007 - no response when paged. Ms Dafallah did not recall this incident. 62



• 6 August 2007 - unable to be located and was absent for an hour and a half. Ms Dafallah recalled this incident. 63



• 31 October 2007 - a letter was sent to Ms Dafallah about her not informing staff of her whereabouts. 64

[28] It was indicated by Ms Dafallah that Mr Milenkovski, in 2005, had mentioned to her, but not counselled her, about her timesheet recording. She said that this issue had only been raised with her once. 65

[29] Ms Dafallah confirmed that, in 2005, she had requested a reduction in her working hours because she could not work to 10:00 pm on Saturdays and Sundays for family reasons. It was agreed that Mr Milenkovski had tried to talk her out of it. 66 She was also of the view that some staff were favoured in terms of receiving overtime and were protected from complaints being made against them. It was agreed that for a long time, there were complaints against her but that all that had happened was that she was counselled - because 80% of the complaints were not true.67

[30] Ms Dafallah disagreed with the proposition that, up until June 2006, she had been counselled about 10 times and been in Human Resources many times over issues. She said that she had been counselled three times mostly for being late. She recalled that, eventually, she told Melbourne Health that she had problems. It was stated that, from June 2006 to mid 2009, there had been no further issues. 68

Incident on 4 July 2009

[31] In terms of the incident on 4 July 2009, Ms Dafallah stated that she was on a break and was reading the newspaper and maybe she had dozed off a little bit. She recalled that there were other people sitting at the table with her and that she had talked to them. 69 She confirmed that the issue of her allegedly being asleep had been raised with her but she denied that she had been asleep - she had been thinking instead.70 She stated that she did not have a conversation with Ms Perez during which Ms Perez told her that they had been looking for her and could not find her and that she had been told by one of the nurses that she (Ms Dafallah) had been asleep.71 She said that she might have dozed off but was not sleeping in the chair as was alleged.72 Ms Dafallah indicated that she had initiated a discussion with Ms Perez later but could not say that she had told her that she had not fallen asleep.73

[32] It was Ms Dafallah's view that the allegations regarding the water jugs were a lie because she would have done them early in the morning before she helped make the beds. 74

Meeting on 9 July 2009

[33] With respect to Mr Milenkovski’s e-mail of 16 July 2009, 75 Ms Dafallah indicated that she did not recall having a discussion with him on 9 July 2009 regarding doing her job, not using the phones in the office and working as directed.76 She agreed that Mr Milenkovski had spoken to her on that day about the sandwich incident and said that the ward clerk was not happy because she could not go straight away and collect the sandwiches. She confirmed that Mr Milenkovski had accepted her response.77 Ms Dafallah confirmed that, at another time, she was talked to about the use of phones in the office after she had gone to 5 West on a weekend and used the phone when she was not supposed to be there that day.78 She stated that she used the phone on her breaks so that she does not leave the ward. It was agreed by Ms Dafallah that it was important to note on the whiteboard when she was having a break and stated that this was what she did. She indicated that she had decided to never leave the ward unless she had been asked to or sent to do something.79

[34] With respect to a number of incidents set out in the e-mail dated 16 July 2009, 80 she could remember some of them but said that they were resolved. She denied that she had ever disappeared and said that she was always there.81

[35] It was Ms Dafallah’s evidence that Mr Milenkovski might have mentioned, during the discussion on 9 July 2009, that, if her behaviour continued regarding not communicating with the nursing staff and nurse in charge, he would escalate the matter in line with the disciplinary policy. She also said that she might have said that, whatever happened on 9 July 2009, they might have complained about her but that it was not correct. She stated that she had an explanation and that she had told the ward clerk as to why she could not go at that time and that she had a good reason not to go to the kitchen at that time. 82

[36] Ms Dafallah confirmed that, by July 2009, she was being spoken to by her supervisor regarding the need to communicate with the nurse in charge. 83 She acknowledged that, during the meeting, she told Mr Milenkovski that she felt that he was discriminating against her because he would not give her additional hours. She stated that she had requested a reduction in her hours about four years previously. It was explained that she was constantly being put under pressure by nursing staff because she finished one hour earlier than the other clinical assistants ie. at 9.00 pm instead of 10.00 pm.84 She confirmed that Mr Milenkovski had told her that he was discussing the sandwich issue informally rather than having it become a more formal process.85

Incident on 25 July 2009

[37] It was agreed by Ms Dafallah that Mr Milenkovski had received a complaint that she had been paged four times but did not attend. She stated she did not receive the pages but did not know why. 86 It was recalled that she had left the building and was outside in the waiting area and that she did not get the pages until she went back in.87 In response to the security records allegedly showing that she left 9 West at 11:07 am and came back into 9 West at 12:21 pm, Ms Dafallah said the records were not accurate because sometimes when the door was open she would just enter rather than swipe the card and then enter. She said that, if the door was locked, she had to swipe her security card.88 It was agreed that, in the period after 12:21 pm when she was taking out the skips and rubbish, the opening and closing of the door had been recorded accurately. With respect to the hour and 10 minutes prior to that, it was Ms Dafallah's evidence that she might have been coming and going through that door without it being recorded. This was said to be because, when visitors come, they sometimes leave the door open.89

[38] With respect to her initial response to Ms Perez regarding not answering the pages, Ms Dafallah stated she had told the other nurse that she did not know why she had not received the pages. 90 She confirmed that Ms Perez had asked her where she had been and told her that they had been trying to page her.91 She indicated that she had told Ms Perez that she had gone on her break and from there went to help another (nurse)92 clinical assistant and that there was a person who had passed away.93 She denied saying “to the morgue”.94 She indicated that she had assisted a clinical assistant by making beds for her as she was busy doing something else.95 Ms Dafallah stated that she did not say to Ms Perez that she had not received the pages because, at that time, she did not know that she had not received them.96 She confirmed that, when Ms Perez asked her why she had not responded to the pages, she (Ms Dafallah) did not respond.97

Meeting on 4 August 2009

[39] Ms Dafallah confirmed that, during this meeting, she admitted that she might have fallen asleep but it would only have been for 20 minutes. She said that initially, she had not denied it because she had said that she might have dozed off. 98

[40] She stated that she did not tell Mr Milenkovski at this meeting that she had received the pages but had not responded because she was assisting elsewhere. She said that she did not say that because she had not received the pages. 99 She confirmed that Melbourne Health was concerned about making sure that she answered and responded to pages.100

[41] It was confirmed by Ms Dafallah that, during the meeting, she had said that she had not responded to the two pages at 11:14 am and 11:36 am because she had been assisting staff on another ward and had then gone to sit in the corner outside and had not told the nurse in charge where she had gone. 101 When asked whether she had told Ms Perez one thing as to where she had been for the hour and 10 minutes and Mr Milenkovski something different at the meeting, Ms Dafallah said that “What – I think I told – whatever I said is what I said at the meeting.”102

Incident on Sunday 13 September 2009

[42] Ms Dafallah confirmed that she recalled an issue regarding urgent bloods and needing a bed done on 9 East. She denied that she asked one of the nurses not to report her to Mr Milenkovski. 103 It was admitted that she received the pages that were being sent on that day, specifically, two at 15:37, one and 16:16, one and 16:32, one at 16:33 and one at 16:55. She said that she had attended to them as she could.104 Ms Dafallah explained in detail the sequence of events regarding the pages she had received.105 It was indicated by Ms Dafallah that, following receipt of the page at 16:16 regarding the urgent bloods, she had gone straight up to the ward and collected the bloods and taken them to pathology.106 After she had received the page at 16:33, she had gone to the ward and said that Dianne had started screaming at her. She denied yelling at Dianne and recalled that she (Ms Dafallah) had been crying rather than yelling.107 Ms Dafallah confirmed that Dianne had also sent the 16:55 page after she had taken the urgent bloods and so she had gone up there to do the bed.108 She denied asking Dianne at 4:45pm not to report her to Mr Milenkovski.109

[43] Ms Dafallah wrote down her recollections of what had happened on 13 September 2009 and gave them to Mr Milenkovski the following day. 110

Incident on Thursday 17 September 2009

[44] With respect to the issue regarding a one hour wait for platelets to be collected from the blood bank, it was Ms Dafallah's evidence that no one had ever talked to her about this issue but said that she had explained what had happened to her manager at the meeting on 15 October 2009.  111 She stated that she was never approached by a nurse about collecting the platelets nor paged about them either. She recounted that, at around 10am, she would have been giving out teas and that she makes sure that she has taken the last blood out of the basket before she gives the teas out. Ms Dafallah indicated that, if the sticker is in the basket, she would definitely take it with her. This is why she had said from the beginning that maybe there was no sticker there. She said that if the nurse had put the sticker there and it had fallen down, she would not have known that there was a sticker there until maybe she had come back and then the nurse paged her. It was said that she had to pick it up with a sticker or else she would not be given the products.112

[45] With respect to the second incident, on 17 September 2009, when urgent bloods were not taken down to pathology at 14:30, Ms Dafallah could not recall as to whether she received the page at 14:54 regarding the urgent bloods. 113 She explained that she was on her lunch break from 14:45 until 15:15 and that she had written it up on the whiteboard.114 Ms Dafallah said that she had left to go on her break at about 14:35. She thought that she might have responded to the page at 14:54 but did not remember getting it.115

Meeting on 15 October 2009

[46] This meeting was held to discuss the incidents on 13 and 17 September 2009. Ms Dafallah denied that she had let the bloods wait for at least 30 minutes before she had collected them. She recalled that she had gone upstairs three times that day and that when she had been paged again for the urgent bloods she had gone straight away and picked them up. 116 It was stated that she believed that John Cade had paged her and that she did some things for them even though Melbourne Health said that there were no John Cade pages registered.117 Ms Dafallah said that the summary of the meeting118 did not reflect what she had said at the meeting. She said that she told Mr Milenkovski that she was angry and crying and that Dianne was looking her up and down.119 She recounted that Melbourne Health had told her that they were going to investigate and that they would be in contact with the union after that.120

[47] It was confirmed by Ms Dafallah that she received a final warning dated 26 October 2009 following the meeting on 15 October 2009. She stated that she had disputed the warning. 121

Incidents on Saturday 10 July 2010

[48] Ms Dafallah confirmed receiving a letter dated 22 July 2010 which set out five allegations of poor performance on 10 July 2010. There was a meeting concerning these allegations on 3 August 2010. 122 The first allegation was that she had arrived 15 minutes late for the start of her shift. Ms Dafallah confirmed that she was late because, after signing on, she had gone to the toilet.123 In terms of the second allegation, Ms Dafallah denied that the patients did not have water until 11am when she put the water jugs out because, when she was collecting the jugs, she left every patient with a foam cup of water. She stated that this was the way she had done this for many months. It was stated by Ms Dafallah that she took her 15 minute tea break at 11.00 am, as that was the time she had finished handing out the water jugs. She also said that she had not looked at the time and that one of the nurses had asked for assistance after she had distributed the jugs. She had then gone to sit down and have some food.124 It was recounted that the nurse that had assisted told her to go on her break after they had finished. It could not be recalled as to whether she had written her break on the whiteboard.125 It was confirmed that there was little discussion of this allegation at the meeting on 3 August 2010 and that Melbourne Health did not take the allegation further.126

Third allegation

[49] It was stated by Ms Dafallah that, at the time of the meeting on 3 August 2010, she could not remember whether she was paged by Ms Aikman at 11:35am or was told about the urgent bloods. She said that she has since remembered that she was paged and that she got up from her break, went to the basket and saw the blood, saw that there was no urgent sticker on it and so put it back in the basket. She then went to the tea room, put away her food, came back and took the blood to pathology. 127

[50] Ms Dafallah confirmed that management had indicated that she had been paged at 11:35am and that the urgent bloods were scanned in at pathology at 12:21 pm. She stated that has she was on a late break at the time and, as the blood was not labelled urgent, she first went back to the meal room to pack up her food and then she took the specimen to pathology. It was recalled that she had commented when she first saw the bloods in the basket that there was no urgent sticker. 128 She said that Ms Perez did not approach her in the lunchroom about the urgent bloods and she denied arguing with her that there was not an urgent sticker on the bloods.129 It was also denied by Ms Dafallah that Ms Aikman had come into the tea room, found Ms Dafallah there, had a conversation with her about why the bloods were still in the basket and that Ms Dafallah had grabbed the bloods from her.130 She agreed that she knew the bloods were urgent because she had been told.131

[51] It was recalled by Ms Dafallah that after pathology, she had gone straight to the kitchen to pick up dentures as required by a nurse. Ms Dafallah’s explanation for the 45 minutes between when she received the urgent page (11.35 am) and when the bloods were scanned (12.21 pm) was that she did not know what happened in pathology. She had put the bloods on the bench and then left. 132

Fourth allegation

[52] It was denied by Ms Dafallah that Ms Aikman had asked her to move the body to the morgue around 2.00 pm. She said that that conversation had never happened and that, if she had been asked, she would have taken the body to the morgue. 133 She confirmed that she was at the nurses’ station at that time and was reading a sterilisation book and not the newspaper. Ms Dafallah stated that, close to her going home time, she had been on the telephone talking to the co-ordinator of her course.134 It was said that she did not have the pager at that time.135

[53] Ms Dafallah indicated that Ms Perez had asked her at about 2.45 pm to take the body to the morgue. She had told Ms Perez that another clinical assistant was on the floor. 136 She said that between 2.00 pm and 2.50 pm, she had come and gone from the nurses’ station. Ms Dafallah said that she went back there so that the nurses could see where she was.137 It was confirmed that Ms Perez was angry.138 She recalled that she had seen the relatives there but said that it was up to Ms Perez or Ms Aikman to tell her to take the body but they had not.139

Meeting on 3 August 2010

[54] With respect to the meeting on 3 August 2010, Ms Dafallah confirmed that she had been questioned about that all of the five allegations. 140

[55] It was confirmed by Ms Dafallah that the meeting on 3 August 2010 was adjourned until 12 August 2010 and that, at both of the meetings, she was given an opportunity to respond. Ms Dafallah gave evidence that she believed that once she had started pressuring Mr Milenkovski for additional hours, she began to receive complaints about her work performance including not answering pages. 141

Meeting on 12 August 2010

[56] Ms Dafallah confirmed that she became upset during the meeting and it ended because she was too distressed to continue. 142 She had provided a written response instead.143 She had become upset because Melbourne Health wanted to terminate her. She was also of the view that, at this meeting, Ms Elliott had details of her termination pay.144 She recalled that Ms Elliott had shown her a printout of what she would get if she resigned.145

[57] It was disputed by Ms Dafallah that her written and oral responses had been taken into account before the decision to dismiss her was made. It was her view that if Melbourne Health had investigated properly and questioned other people, she would not have been dismissed. 146

Post 1 September 2010

[58] It was agreed by Ms Dafallah that she was paid 5 weeks in lieu of notice and that she had commenced an unpaid placement on 8 November 2010 in regard to her Certificate 111 course. This involved the same number of hours she had been working at Melbourne Health. She indicated that she had another two to three weeks to go. 147 She said that it was her choice to do the placement.148 It was stated that she had sent her resume to three employers but had received no response. Ms Dafallah also explained her looking for jobs on the internet and in the newspapers. She said that she was still working the same hours (3 days) in the nursing home.149

RESPONDENT

Ms N Perez

[59] Ms Perez provided a written witness statement 150 and also gave oral evidence. She is the Associate Nurse Unit Manager (ANUM) on Ward 6 South East which was 9 West previously.151

[60] It was recalled by Ms Perez that the nurses had made a lot of complaints against a previous clinical assistant on the ward. She confirmed that he had moved from the ward but was not aware that he had requested it. 152 Ms Perez agreed that there was a cleaner on the ward who had asked to be moved. She was not aware that complaints had been made about that person.153 She did not concede that she and her nursing colleagues on the ward were demanding of the support staff.154

[61] Ms Perez confirmed that the NUM at the previous ward (9 West) told her to report any issues regarding Ms Dafallah to her because they had several problems with her, just before the ward have moved to 6 South East. She could not recall, at that point in time, as to when the ward had re-located. 155 It was indicated that she was told to report any issues to the NUM and not to go to the clinical assistants themselves. She said that Mr Milenkovski had not told her to keep an eye on Ms Dafallah.156 Ms Perez recalled that she and Mr Milenkovski had had a discussion after the last incident on 10 July 2010.157

[62] In her witness statement, Ms Perez stated that she had worked with Ms Dafallah from 2002 to 2010. She had moved from the Royal Park campus to the Royal Melbourne city campus in 2005 - at the same time as Ms Dafallah. She indicated that she mainly worked with Ms Dafallah on weekends and, although on a rotating roster, she has worked with Ms Dafallah on many weekends. 158

[63] It was stated by Ms Perez that, prior to the complaint in July 2009, she had not made any complaints about Ms Dafallah. She recalled that she had expressed her concerns to the NUM prior to then but had not made a complaint. Ms Perez explained that she had spoken to Ms Dafallah many times (but not formally) as she was late on many occasions. She recounted that she had not made a written complaint but had reported it verbally to the NUM. Ms Perez explained that, many times, Ms Dafallah was late reporting to the ward and the nurses had reported that they were looking for her. 159 She confirmed that Ms Dafallah had been about 45 minutes late of recent times.160

[64] Ms Perez confirmed that, if a clinical assistant was off the ward on another task when a page came through, they should ring the ward to let them know if they were not able to come immediately. She said that the pager usually has the name of the person who pages and so the clinical assistant would be transferred to that person. If the page did not have a name the clinical assistant would ring the ward and then be transferred to the NUM or to a nurse on the ward or the person who answered the phone would find out who had paged the clinical assistant. 161

[65] It was Ms Perez’s recollection that she was told by the NUM not to approach Ms Dafallah over performance issues any more. She indicated that they normally spoke with the clinical assistants but were told not to as the NUM was trying to avoid a confrontation. They were to take their complaints to the NUM who would address them. 162 Since mid 2009 (when 9 West moved to 6 South East) Ms Perez recounted that she had asked Ms Dafallah where she was when she was late and why she hadn’t called the ward. She said that after the last incident, on 25 July 2009, she had also asked Ms Dafallah why and had then put in a complaint.163

4 July 2009

[66] With respect to the incident on 4 July 2009, Ms Perez stated that she did not actually see Ms Dafallah asleep. 164 She recalled that they were looking for Ms Dafallah and had paged her several times without a response. Ms Perez acknowledged that her statement165 with regard to having paged Ms Dafallah was inconsistent with the notes taken of a meeting on 28 July 2009 when this incident was discussed.166

[67] It was Ms Perez’s evidence that she had asked Ms Dafallah many times why she would not answer her pager. She recounted that Ms Dafallah would sometimes say that it was not or may not have been the right pager. 167 She stated that she always paged the clinical assistant on the pager they gave the nursing staff every day on the ward.168

10 July 2010

[68] In terms of the incidents on 10 July 2010, Ms Perez confirmed that she had made a complaint about Ms Dafallah not putting out the patients’ water jugs until after 11.00am. She recalled that she had received a report from the nursing staff and that she had mentioned it to the NUM. Ms Perez acknowledged that the patients did have water (a styrofoam mug of water) but said that putting out the water jugs was common practice for clinical assistants. 169

Urgent bloods

[69] Ms Perez stated that, also on 10 July 2010, Ms Dafallah was paged to take urgent bloods down at 11:30am. She remembered asking Ms Dafallah whether she had taken the bloods to pathology. Ms Perez said that both she and Ms Aikman had asked Ms Dafallah about the urgent bloods and that they were both looking for Ms Dafallah. She stated that she remembered approaching Ms Dafallah. 170 When it was pointed out to Ms Perez that she had not mentioned approaching Ms Dafallah in her Riskman report171 or her e-mail of 10 July 2010172 Ms Perez was adamant that she remembered asking Ms Dafallah.173 In her written statement, Ms Perez stated that she approached Ms Dafallah in the lunchroom and told her that she had been looking for her everywhere. She had asked Ms Dafallah why she had not taken the urgent bloods that she had been paged by Ms Aikman to take. Ms Perez recalled that Ms Dafallah started arguing with her and said that there was not an urgent sticker on the bloods. She said that Ms Dafallah knew that they were urgent as the page at 11:35am said that they were. As well, Ms Dafallah did not tell her that she was going on her break.174

[70] It was stated that it was the job of the nursing staff to put the urgent sticker on the bloods. Ms Perez said that the pager had stated that the bloods were urgent. She indicated that she was not going to look for an urgent sticker when she wanted the bloods done straight away. She said that the bloods were marked urgent and that they had been paged as urgent but there was not a sticker on the bloods on that day. 175

Body to the morgue

[71] With respect to the deceased person, Ms Perez stated that Ms Dafallah knew that the person had died from the beginning of her shift as the person had died the night before. 176 She indicated that there were difficult family circumstances due to intervention orders and that she had waited until the last family member had gone before she requested the clinical assistant to take the body.177 Ms Perez recalled that she had paged Ms Dafallah to take the body down but was not aware (until the day of the hearing) that Ms Dafallah had handed over the pager to Patrick at 2.00pm and that Patrick had reported to the work.178 Ms Perez stated that there was no response to the page.179 She said that she went looking for Ms Dafallah and found her talking on the phone. She had asked her about the page/body to the morgue and Ms Dafallah said that her shift had finished. Ms Perez said that she believed that the clinical assistants worked until 3.00pm on the ward.180

Ms C Aikman

[72] Ms Aikman provided a written witness statement 181 and gave oral evidence as well.

[73] It was Ms Aikman’s evidence that she had only worked with Ms Dafallah three or four times between February and July 2010. She recalled that, prior to the incident in July 2010, she had to constantly ask Ms Dafallah to do things and had had to look for her a few times. 182 Ms Aikman indicated that she had not had problems with other clinical assistants to the same extent as she had with Ms Dafallah. She stated that other clinical assistants responded to their pages in less than 10 minutes.183

10 July 2010 - urgent bloods

[74] Ms Aikman recounted that she had put the bloods in the basket at the front of the ward and that they did not have an urgent sticker. She explained that it was not her duty to put an urgent sticker on the bloods and that, in that instance, it was the doctor who wrote up the pathology slip. 184 Ms Aikman stated that “urgent” was often written on the pathology slip.185 She recalled that the doctor had told her that the bloods needed to be asap and requested her to page.186 It was recalled by Ms Aikman that she had checked on line to see if the bloods had been processed. As they had not, she went to check whether the bloods were still in the basket. Following sending the page to Ms Dafallah, Ms Aikman had then grabbed the bloods and had gone looking for Ms Dafallah. She found Ms Dafallah in the tea room at about 12.30 pm and had asked her why the urgent bloods were still there.187 She was absolutely certain that she had taken the bloods to Ms Dafallah.188 She had seen that Ms Dafallah had written her break on the board as 11.30am.

[75] It was conceded by Ms Aikman that the timings might be incorrect but said “...I stand by what I said...” 189 She further recounted that, after asking Ms Dafallah why she had not taken the bloods, Ms Dafallah had got up from her chair and packed up her lunch. Ms Aikman had then asked Ms Dafallah if she wanted her (Ms Aikman) to take them. Ms Dafallah had grabbed the bloods out of her hands and said that she would take them.190 She stated that she had not looked at Ms Dafallah’s break times before she paged her. She, therefore, had paged Ms Dafallah before she had an understanding of what time she was on her break. Clinical assistants’ breaks were said to normally coincide with those of the nursing staff and tea breaks were normally around 10.00am.191 It was her view that there had been no harm to the patient by the delay in delivering the bloods to pathology but that the quality of care of the patient was definitely compromised.192

10 July 2010 - patient to morgue

[76] Ms Aikman confirmed that she was preparing the deceased’s body until 2pm on 10 July 2010. She stated that it was her decision as to when the body was to be taken to the morgue. 193 She indicated that she had not known that Ms Dafallah had passed her pager onto Patrick. She thought that Ms Dafallah had the pager when she sent the page regarding taking the body to the morgue. She stated that Patrick did not call her after she had paged. Ms Aikman also stated that she was not aware of the clinical assistants’ starting and finishing times.194

[77] It was also Ms Aikman’s evidence that, at around 2.00pm, she saw Ms Dafallah at the nurses’ station reading the newspaper. She recalled asking her to take the body to the morgue and that Ms Dafallah seemed a bit annoyed. At about 2.30pm, Ms Aikman said that she saw that the body was still there so she went and looked for Ms Dafallah and found her at the nurses’ station talking on the telephone. Ms Aikman recalled that she had then paged Ms Dafallah at 2.36pm but received no reply. 195

Ms T Tebbutt

[78] Ms Tebbutt provided a written witness statement 196 and also gave oral evidence.

[79] It was Ms Tebbutt’s evidence that she commenced employment with Melbourne Health on 26 July 2010. She stated that, prior to the meeting with Ms Dafallah on 3 August 2010, she was given a briefing by Mr Milenkovski and the previous human resources consultant regarding the most recent situation and warnings with respect to the applicant. She said that, at that point in time, termination was a possible outcome but it was not clear that that was what would occur.  197

Meeting on 3 August 2010

[80] In terms of the meeting held with Ms Dafallah on 3 August 2010 regarding the complaints about her performance on 10 July 2010, Ms Tebbutt stated that Ms Dafallah was asked for her responses to these complaints. She recalled that Ms Dafallah was asked to provide a response to all of the allegations except for the one regarding the water jugs. At the end of the meeting, Melbourne Health agreed to further investigate the matters that Ms Dafallah had raised. 198

Meeting on 12 August 2010

[81] With respect to the meeting on 12 August 2010, Ms Tebbutt stated that its purpose was to give Ms Dafallah a further opportunity to respond to the allegations and also for Melbourne Health to let her know what the further investigations had revealed. 199 She recalled that Ms Dafallah became extremely upset at the meeting to the point where it had to be terminated before it had ended.200 As it was deemed inappropriate to have Ms Dafallah so visibly upset in the wards it was stated that she was escorted from the building and further access to the building was withdrawn. This was particularly because she had been notified during the meeting that there would be a recommendation to terminate her employment. Ms Tebbutt recounted that, as Ms Dafallah was very upset, it was not clear that she understood about the recommendation. Therefore, when following the meeting, Melbourne Health received a request from Ms Dafallah's union that she be able to make a written submission, the recommendation was held off until that written response was received.201 It was stated that, when Melbourne Health had accepted the union's request for Ms Dafallah to provide a written response, it was with respect to the current allegations rather than any other previous allegation. She said that the decision to disregard the material regarding the previous allegations had been hers on the basis that it was not relevant information in terms of the discussions which were open at that point in time.202

[82] Ms Tebbutt stated that, after Melbourne Health had received the written responses from Ms Dafallah following the meeting on 12 August 2010, she had prepared a recommendation. It was said that it was based on the all of the evidence and documentation that had been prepared by the previous consultant together with material from the meetings that she had been involved in. She reiterated that the incidents which were drawn upon in making the recommendation were the more recent ones and no reference had been made to issues in 2005. 203 Ms Tebbutt indicated that the decision regarding the recommendation was made by the Executive Director Human Resources.204

Mr D Milenkovski

[83] Mr Milenkovski provided a written statement 205 as well as gave oral evidence.

[84] It was Mr Milenkovski’s evidence that his estimated travel times within the hospital included an additional 5 minutes. It was his view that there were adequate lifts and that there were no delays at pathology as it was a drop off system. 206

[85] Mr Milenkovski stated that, on a Sunday, when Ms Dafallah was rostered across three wards, she would report to each of the nurses in charge or the ward clerk if the nurse in charge was not there. 207 He indicated that a clinical assistant should respond by phone if they received a page from John Cade and were occupied at the time. It was explained that when a nurse answered the phone, they would go and find the person who sent the page and relay the message about the task to be completed to the clinical assistant. He assumed that the nurse who answered the phone would let the person who sent the page know that the clinical assistant had responded to the page. If the message was not passed on, it was Mr Milenkovski’s view that, the staff members concerned would sort it out when the clinical assistant arrived on the ward. The clinical assistant could also seek clarification from the nurse in charge. He did not believe this to be a difficult task. This was said to be the expectation rather than there being a formal system.208

9 July 2009 discussion

[86] In terms of the discussion between Mr Milenkovski and Ms Dafallah on 9 July 2009, he disagreed that he had only spoken to her about the sandwich issue and her request for additional hours. He said that he had also told her that her attendance was a concern. 209 He denied that, when Ms Dafallah asked for additional hours, he had started the process of dismissing her.210 Mr Milenkovski stated that it had been the nursing staff who had made the complaints.211 He agreed that it may have been the case that, effectively, there were no issues regarding Ms Dafallah between August 2007 and July 2009.212

4 July 2009

[87] With respect to the incident on Saturday 4 July 2009, it was Mr Milenkovski’s evidence that he had not created the Riskman. 213 He recalled that he received the Riskman on 17 July 2009 and also the email of complaint on 14 July 2009.214 He disputed that he was keen to move this complaint forward and stated that he was uncomfortable with the assumption that he was generating things about Ms Dafallah as he was not.215 He denied that he was acting on the basis of Ms Dafallah’s “history” between 2005 and 2007 despite there being no further issues between 2007 and July 2009.216

Meeting on 4 August 2009

[88] At the meeting on 4 August 2009, it was confirmed by Mr Milenkovski that Ms Dafallah was told about the further complaint of being found asleep in the tea room on Saturday 4 July 2009 and that she was missing and had not responded to pages between 11.14 am and 11.36 am on 25 July 2009. He said that Ms Dafallah had been verbally told of the second complaint at the meeting. 217 It was recalled that Ms Dafallah was given the opportunity to reconvene but chose not to and also to review the second complaint.218 Mr Milenkovski was asked a number of questions regarding whom he had interviewed and when.219 He was also asked about the pages on 25 July 2009 and 13 September 2009.220

[89] With respect to the first warning that was issued, it was agreed that, because of Ms Dafallah’s “history”, the July 2009 incident had warranted a written warning. 221

13 September 2009

[90] In relation to the events of 13 September 2009, it was Mr Milenkovski’s understanding that there was only one lot of bloods requiring collection. He recalled that he had investigated further with the nurse in charge and had checked the pathology department’s records. It was stated that the nurse in charge had determined that there was only one lot of bloods taken. 222 Mr Milenkovski was of the view that, after Ms Dafallah had finished transporting the patient from ICU to 2 West (20 minutes), she should have sought out the person who had paged her from 2 West and told them that there would be a delay in attending their request. It was said that she should have rang 9 East within that time as well. It was indicated that some of the pages between 15.01 and 16.55 were for the same tasks. The view was expressed that the clinical assistant needed to maintain communication with the nursing staff, to inform them of the delay and then attend to the required tasks.223

[91] Mr Milenkovski recalled that when the investigation of events on 13 September 2009 commenced, John Cade was not an issue. 224 He said that the concerns were the delays in responding to the pages from 9 East, the urgent bloods not being taken to pathology and not contacting the ward. He confirmed that Ms Dafallah had given him a written account of what had happened on that day.225 He agreed that her document had said that she was rushed off her feet and whilst transferring a patient from ICU to 2 West, she was peppered with pages. He said that, once Ms Dafallah had completed the patient transfer, she should have contacted 2 East to find out what the pages were about.226 He stated that Ms Dafallah’s written account had been taken into consideration and that he had shown it to the Human Resources Manager.227

[92] It was conceded by Mr Milenkovski that in advising Ms Dafallah in his letter of 26 October 2009 228 that there were no records of John Cade paging her, he had made an oversight. He recalled that the complaint from 9 East about not responding to pages was being investigated - that Ms Dafallah had responded to the initial page but not to the subsequent ones. It was stated that the focus was why the pages from 9 East had not been responded to - as there was a history of failing to respond to pages.229

[93] Mr Milenkovski explained that, if it was documented on the ward by the clinical assistant that they were going on a break, the nursing staff would avoid paging them during that time. He conceded that this may not always be the case. 230

17 September 2009

Platelets

[94] It was Mr Milenkovski’s view that, also in the morning on 17 September 2009 on 5 West when Ms Dafallah was paged at 10:39 am regarding the platelets, if she had been handing out the teas at the time (as alleged by Ms Dafallah) she would have been visible to the nursing staff because of the particular layout of the ward. 231 He said that if Ms Dafallah had been visible, one of the nursing staff would have been able to contact her. Also, she would not have needed to phone if she had been on the ward.232 He confirmed that the information that he had been given was that the label for the platelets to be collected had been put in the basket at 10:00 am and that Ms Dafallah had been paged at 10:30 am as the sticker was still in the basket at 10:20 am.233 He agreed that, apart from the page that was sent, no one had spoken to Ms Dafallah and told her that the label for the platelets was in the basket.234 He said that he could not confirm that Ms Dafallah had been handing out morning teas at the time because, if she had, she would have been visible to the nursing staff. Mr Milenkovski conceded that none of the staff he had consulted had told him that Ms Dafallah was not handing out morning teas.235 It was also said that the platelets were brought up to the ward at 11:00 am which was one hour after the label had been put in the basket.236 He stated that it was the delay between 10:00 am and 11:00 am in the platelets arriving that had been reported and which had concerned the nursing staff.237

[95] With respect to the page at 10:39 am, it was Mr Milenkovski’s evidence that Ms Dafallah had responded to the page but not directly to the staff member who had paged her. 238 Mr Milenkovski was of the view that it was not necessarily normal practice for a clinical assistant to be told that a label had been put in the basket. He further said that the basket should have been checked more frequently than Ms Dafallah had.239

Urgent bloods

[96] It was Mr Milenkovski’s understanding that, with respect to the urgent bloods incident on 5 West on the afternoon of 17 September 2009, the bloods had been labelled at 14:30 which was 15 minutes before Ms Dafallah was to take her break (14:45 to 15:15). He said that his advice was that the nurse could not find Ms Dafallah at that time and noticed at 15:00 that the bloods were still there. 240 It was agreed that, when the nurse paged Ms Dafallah at 15:54, she may have been aware that Ms Dafallah was on her break.241 He confirmed that Ms Dafallah had commenced work at 1.30pm.242

Meeting on 9 October 2009

[97] In terms of the meeting held on 9 October 2009, it was Mr Milenkovski’s view that Ms Dafallah had had a reasonable recollection of the events in question (13 and 17 September 2009). He stated that in the intervening period, he believed that the Riskman report had been provided to Ms Dafallah and her union representative by Ms Elliott and were also available at the meeting. 243 It was confirmed that neither the pager records nor the original complaints had been given to Ms Dafallah. He said there was no reason why that they had not been provided.244 Mr Milenkovski could not confirm that Mr Caine had been interviewed about the 17 September 2009 incident. He stated that, because of the short timeframe between them, they had been treated as a single incident.245

[98] It was denied by Mr Milenkovski that he had told Ms Perez to keep a watch on Ms Dafallah or encouraged the nurses to monitor her. 246

Meeting on 3 August 2010

[99] In terms of the meeting held on 3 August 2010, Mr Milenkovski conceded that there was no urgent sticker on the bloods. He said that the pager request had been that the bloods were urgent. He said that it could be either the doctor or the nursing staff whose responsibility it was to put the sticker on. 247

[100] Mr Milenkovski confirmed that, on one occasion in October 2009, it had been found that Ms Dafallah’s page had not been working. 248 He stated that the incident had therefore not been taken into account when Ms Dafallah was issued with a warning.249 It was also said that he was not aware of any other occasions when Ms Dafallah had complained about her pager not working.250

[101] A number of questions were asked concerning the maintenance and testing of pagers. 251 Mr Milenkovski indicated that he had assumed that the pages he had records of had been received by Ms Dafallah.252

10 July 2010 incident

First allegation

[102] In terms of the first allegation, Mr Milenkovski confirmed that he had addressed with Ms Dafallah on several occasions issues regarding her punctuality and time keeping. 253

Second allegation

[103] As to whether it had been Ms Aikman or Ms Perez who had gone to look for Ms Dafallah, it was Mr Milenkovski’s view that it was serious either way. He indicated that Ms Perez had told him at the time that she had told Ms Aikman to go and look for Ms Dafallah and that she had also done the same. 254 He denied that he had made up, in the letter of 25 August 2010, the statement that Ms Perez had gone to look for Ms Dafallah when the Riskman stated that it was Ms Aikman.255 It was Mr Milenkovski’s evidence that Ms Perez had told him that she had found Ms Dafallah in the tea room. He confirmed that he had checked this information against the Riskman and the complaint (email of 12 July 2010 from Ms Perez).256

[104] Mr Milenkovski indicated that, at the time of the letter of 25 August 2010 257 he had not known that the bloods had been scanned in at pathology at 12.21 pm. He acknowledged that, at the meeting on 3 August 2010, he had indicated that the bloods had been scanned at 12.21 pm. He said that the mistake in the letter had not been deliberate.258 He confirmed that his investigation showed that Ms Aikman had approached Ms Dafallah at the nurses’ station at 2.50 pm.259 It was Mr Milenkovski’s view that, if the page indicated urgent bloods at 11.35 am, they should have been delivered urgently - as soon as possible.260

[105] Mr Milenkovski confirmed that he had interviewed Ms Aikman. He recalled that, when talking to Ms Dafallah about her break times, she had not given a clear response. She had suggested that she had gone shortly after 11:00, 11:30 am and that she was still on her break at 12:30 pm. He agreed that the allegation had been made that Ms Dafallah had not informed the nurse in charge of her break times. Secondly, Mr Milenkovski said that Ms Dafallah had been unclear about when she went on her break. He explained that the concern had been about the break time with Ms Dafallah saying it was shortly after 11:00 am or at 11:30 am when, at 12:30 pm, Ms Dafallah was witnessed in the tea room. 261

Fourth allegation

[106] Mr Milenkovski was unable to explain as to why the letter of 25 August 2010 stated that Ms Dafallah was asked to transfer the deceased to the morgue at 1.45 pm when the primary documentation said it was 2.00 pm. 262 He confirmed that the page sent at 14.36 was from Ms Aikman despite Ms Perez’s complaint indicating that Ms Aikman had verbally told Ms Dafallah at 2.00 pm to take the deceased to the morgue. He said he could only go off the paging record he had been sent.263 He recalled that he had asked Ms Dafallah and she had said that she had handed the pager to the afternoon clinical assistant.264 It was stated that this explanation had been accepted by Melbourne Health and that this had not been recorded in any of the documentation except for his statement.

[107] It was recalled that Melbourne Health’s concern was that the initial request to transport the deceased had been made at 2.00 pm. Mr Milenkovski said that the letter of 22 July 2010 265 had been written prior to speaking to Ms Dafallah.266 He confirmed that Ms Aikman had advised him that she had asked Ms Dafallah directly, at 2.00 pm, to take the deceased to the morgue.267

[108] It was stated by Mr Milenkovski that the second last paragraph of the letter of 25 August 2010 268 referred to the written warnings that had been previously given to Ms Dafallah in 2009 and 2010. He acknowledged that Ms Dafallah had a history but that the repeated behaviour was that referred to in the written warnings.269

[109] Melbourne Health acknowledged that there was some duplication of pages between Attachments DM 33, DM 34 and DM 35 of Mr Milenkovski’s statement. 270 He was taken through the contents of these Attachments and was questioned about a number of them. It was confirmed by Mr Milenkovski that, from mid 2009, Ms Dafallah had asked for an additional four hours on the weekends.271

[110] It was stated by Mr Milenkovski that he had worked under the guidance of the human resource team and that his actions were consistent with Melbourne Health’s disciplinary procedure. 272

APPLICANT’S FINAL SUBMISSIONS

[111] During the hearing on 4 March 2011, in addition to giving oral final submissions, Mr Willoughby-Thomas also tendered a number of documents as part of the applicant’s final submissions. 273

[112] The first document tendered deals with the lead up to the first and second warning of 10 August 2009. 274 It firstly discusses the issue of Ms Dafallah working one hour less than the other clinical assistants which was said to have caused friction with the nursing staff who did not realise that she finished earlier.275

[113] Secondly, with regard to the complaints between 2005 and August 2007, it was stated that the appropriate place for Mr Milenkovski’s file regarding this period was the shredder because of the evident bias and falsehoods in the material. 276 It was highlighted that Mr Milenkovski had conceded that Ms Dafallah had a clean record for the two years from August 2007 until July 2009.277

[114] In terms of the combined first and second warning, Mr Willoughby-Thomas highlighted the referral of the sleeping incident to human resources for action which was said to indicate pre-judgement despite Ms Dafallah having a clean record for the previous two years. 278 It was argued that the way in which matters progressed, following receipt by Mr Milenkovski of the e-mail complaint on 14 July 2009, further suggested bias against Ms Dafallah on behalf of both Mr Milenkovski and human resources.279 The applicant asserted that Mr Milenkovski was lying during his evidence and that he had an agenda with respect to Ms Dafallah and that he was determined that a written warning was warranted.280

[115] Mr Willoughby-Thomas submitted that it had been very unfair for Ms Dafallah to have attended the meeting on 4 August 2009 regarding the sleeping incident and for her to have been confronted with allegations, put to her verbally, regarding not answering her pager on 25 July 2009. In addition, it was stated that Ms Dafallah was not shown the printout of the pages and swipe cards. 281

[116] Finally, it was contended that the complaint by the nursing staff included two code blues in the four pages that Ms Dafallah was accused of not responding to. This was said to indicate that the two nursing staff concerned were loose with the facts and the truth when making complaints against Ms Dafallah. It was speculated that their primary objective may have been to make a complaint rather than to convey a genuine concern. 282 Further, Mr Willoughby-Thomas submitted that Ms Dafallah's explanations were irrelevant because, as early as 16 July 2009, Mr Milenkovski had decided that Ms Dafallah should be given a warning.283

[117] In a further document, Mr Willoughby Thomas dealt with the events of 13 and 17 September 2009. 284 He went into detail regarding the allegations that Ms Dafallah had failed to respond to multiple pages and had verbally abused nursing staff on 13 September 2009. He referred to three pages from John Cade and Mr Milenkovski’s evidence regarding these pages. It was asserted that the pages from John Cade were clearly relevant to Ms Dafallah’s ability to properly respond to all of the requests that were being made of her that afternoon and that management had lied about there being any.285 In terms of the alleged failure by Ms Dafallah to collect the urgent bloods, Mr Willoughby-Thomas stated that Ms Dafallah had unfortunately taken the specimens which were not those that the nurse in charge on 9 East was referring to in her pages.286

[118] With respect to the allegation that Ms Dafallah had abused nursing staff, it was submitted that it was the nurse in charge who had become angry and who had accused Ms Dafallah of lying. Ms Dafallah, in turn, became upset and began to cry. 287

[119] In terms of the allegations that, on 17 September 2009, there was a delay in collecting the platelets, Mr Willoughby-Thomas contended that the warning letter of 26 October 2009 acknowledged that Ms Dafallah may not have been made aware that the platelets were available for collection. It was pointed out that Melbourne Health had not interviewed the complainant and, as well, the nurse in question had not been called to give evidence. 288 He stated that the allegation should not have seen the light of day let alone resulted in a final warning.289

[120] A further document was tendered with respect to the events of Saturday 10 July 2010. 290 Mr Willoughby-Thomas dealt with each of the five allegations in detail.291 With respect to the first allegation, it was contended that it might have been an issue in the past for Ms Dafallah but that she was condemned and found guilty, not on the basis of what she did on 10 July 2010, but on what she might have done more than three years earlier.292 In terms of the third allegation, it was argued that it centred on the delay in taking the urgent bloods to pathology. It was stated that the allegation was that the bloods were not taken to pathology until after 12:30 pm despite the facts being that the bloods were scanned at 12:21 pm. It was concluded by Mr Willoughby-Thomas that it was not open to Melbourne Health to change the allegation when the facts were found to contradict it. It should have been dismissed instead.293 The evidence of Ms Dafallah, with respect to the fourth allegation, was said to be that she was not asked to take the body to the morgue at 2.00 pm. Given the confusion and contradiction between the respondent's witnesses’ evidence, it was stated that Ms Dafallah's evidence should be preferred.294 With regard to the fifth allegation, it was argued that the allegation, as framed, had no substance and it should have been dismissed.295 In summary, Mr Willoughby-Thomas submitted that there was no valid reason for Ms Dafallah’s dismissal. Further, it was argued that the termination of her employment was a wholly disproportionate response to her conduct.296

[121] The applicant submitted a document 297 regarding pager reliability and response to pages which was said to be relevant to the allegations of 25 July 2009, 13 September and 17 September 2009.298

[122] A further document was provided by the applicant concerning alleged flaws in Melbourne Health’s allegations and investigations concerning Ms Dafallah. 299 It was submitted that the flaws showed a pattern of unfairness and pre-judgement by the respondent.300

[123] The final document concerned Melbourne Health’s adherence to its disciplinary procedure and termination of employment procedure. 301 It was argued by Mr Willoughby-Thomas that the respondent had failed to adhere to its own policies.302 The Tribunal was taken through, in detail, both of these procedures.303 Reference was also made to the applicable certified agreement (Health Services Union – Health and Allied Services, Administrative Officers – Victorian Public Sector – Multi Employer Certified Agreement 2006 – 2009).304

[124] The Tribunal was referred to the authority of Byrne and Frew, 305 ASU v Ansett Australia,306 Bostik Australia v Gorgevski307 and others. Reference was also made to The law of Employment by Macken.

[125] Written Submissions in Reply on behalf of the applicant were filed by Mr Willoughby-Thomas on 21 March 2011. These were in response to the brief oral submissions made by the respondent on 4 March 2011 and the written submissions filed on 16 March 2011. The applicant’s submissions in reply have been fully and carefully considered in reaching the conclusions in this matter. However, given their particularly detailed and intricate nature, they have not been summarised as part of the decision except for note being made of the following points.

[126] Mr Willoughby-Thomas submitted that reinstatement of Ms Dafallah was the remedy that was being sought on the basis that Ms Dafallah bears no grudges and is ready and keen to resume work. He challenged the contention that performance issues would soon arise if she was reinstated on the basis that there was a period of 10 months between the final warning in October 2009 and her dismissal in September 2010. It was argued that the Fair Work Act provides a presumption in favour of reinstatement on the basis that, where a dismissal has been found to be harsh, unjust or unreasonable, the Tribunal is required to find that reinstatement is inappropriate. The applicant indicated that Melbourne Health is a large employer and that, once reinstated, Ms Dafallah did not need to be rostered in Ward 6 South East. 308

[127] Further, Mr Willoughby Thomas contended that there was no valid reason for Ms Dafallah’s dismissal. It was argued that she was not notified of the reason for her dismissal or given a meaningful opportunity to respond to the allegations or to the reasons for her dismissal and, while she may have been warned, the warnings were flawed both procedurally and in substance. On behalf of the applicant, it was submitted that she had been employed for more than 10 years; she was seeking a further qualification was a legitimate endeavour to assist her employability and she has sought, and is seeking, alternative employment. Finally, it was contended that her statutory entitlement to five weeks in lieu of notice was irrelevant to the issue of compensation.

RESPONDENT’S FINAL SUBMISSIONS

[128] Mr Millar submitted that there was a valid reason for the termination of Ms Dafallah's employment which was a lengthy period of poor performance. 309 It was argued that there could only be three possible explanations for the performance issues which included not answering pages/not attending to work, lateness/timesheet issues and sleeping on duty. These were, firstly, that the performance concerns were a contrived response to Ms Dafallah’s wish to work more hours. It was stated that there was no reason why the employer would single out a particular employee because of the inconvenience of dealing with her request to work additional hours.310

[129] The second explanation could be that the applicant was extremely unlucky in a series of events over which she was blameless. This proposition was said to be improbable. It was stated that a consistent theme in Ms Dafallah’s responses was that she had done nothing wrong. It was contended that she had something to say with respect to each of the allegation and that she had a response on everything. 311 The respondent summarised Ms Dafallah’s excuses as: she may have nodded off a few times but was not really asleep; she missed pages because she was absent on other duties but which did not stand up to scrutiny; she was too busy to respond to pages and a confrontation with the nursing charge was not Ms Dafallah's fault: she was not late but was delayed in the toilet; there was no sticker on the urgent bloods and so she went back to her break; she was not told about a body needing to be moved and was paged too late and her failure to notify off her morning break was of no consequence.312

[130] It was contended that the matters which resulted in the termination of Ms Dafallah's employment in this case cannot be dismissed as simple bad luck but were in fact serious issues regarding her work performance - the third possible explanation. 313 The respondent stated that these problems had not improved despite proper warnings having been issued.314 It was also argued that there had been a history regarding performance issues with Ms Dafallah prior to July 2009 but that matters became formal from that time on.315

[131] In response to the documents 316 tendered by the applicant as part of the final submissions, the respondent replied, in terms of Exhibit A5, that the first warning that was issued to Ms Dafallah concerning the sleeping incident was appropriate as falling asleep on duty is a serious matter.317 With respect to the issues on 25 July 2009, where the security records showed that Ms Dafallah had left the ward at 11:07am and not returned until 12:21 pm, it was argued that the appropriate response was the issuing of a second warning.318

[132] In terms of the incidents that took place on 13 September 2009 319, the respondent contended that the respondent's concerns were not only that Ms Dafallah did not complete her tasks in time but also failed to keep others informed of her whereabouts.320 Further, it was stated that, on both versions of events, there was an unseemly confrontation between the nurse in charge and Ms Dafallah. The respondent suggested that it was likely to be Ms Dafallah who had caused the confrontation.321 It was further argued by the respondent that it was sufficient for the Tribunal to be satisfied that prior warnings had been given without embarking on a full investigation as to whether each issue has been separately proven.322

[133] With regard to the allegations concerning 17 September 2009, the respondent submitted that Ms Dafallah did not collect and deliver, in a timely fashion, the urgent bloods which were left in the basket and had not communicated her inability to do this.

[134] The respondent viewed the first allegation arising out of the events of 10 July 2010 323 as serious on the basis that Mr Milenkovski had spoken to Ms Dafallah about being late many times previously. It was stated by Mr Miller that the respondent viewed Ms Dafallah's response regarding the urgent bloods (a perfunctory check and, as it did not have an urgent sticker, she returned to the meal room) as demonstrating a lack of urgency particularly when she was on a final warning.324 With respect to the fourth allegation, the respondent argued that, if Ms Dafallah had taken the body to the morgue when she was asked, she would have had ample time to undertake the transfer. Secondly, Mr Millar submitted that the account given by Ms Aikman should be preferred over Ms Dafallah’s denial of the discussion. Finally, the respondent highlighted that Ms Dafallah had admitted to failing to write her morning tea break on the board.325

[135] In terms of the applicant’s document 326 the respondent provided a detailed response regarding pager reliability and pager response.327 In addition, the respondent replied to the contents of the applicant’s Exhibits A9 and A10. It stated that clause 5.6 (d) of Melbourne Health’s disciplinary procedure was not enlivened as a further warning was issued on 26 October 2009 following the first and second warnings on 10 August 2009.328 Further, the evidence was said to disclose a lengthy record of attempts by the respondent to resolve the performance concerns with Ms Dafallah other than through the termination of her employment. It was stated that the nature of the performance concerns did not make them amenable to other steps such as the provision of further training or alternative forms of guidance. This was said to be because answering pages, acting on verbal requests, keeping nursing staff informed of whereabouts, punctuality and efficiency were all inherent parts of the clinical assistant’s role which hardly required specific training.329

[136] It was submitted by the respondent that the applicant chose to have both sets of issues dealt with at the meeting on 4 August 2009. Further, it should be noted that each of the warnings constituted a grouping of 2, 3 and 5 performance concerns that the employer had and they had put them together in a block. Therefore, it could not be said that the employer had simply seized on three events. 330 Further, Mr Millar argued that, even if there was a technical breach or failure to comply with Melbourne Health’s policies, where there is a good reason for the dismissal, one should not lose sight of that by concentrating upon the more peripheral issues involved in the decision-making and dismissal process.331

[137] The respondent submitted that reinstatement would be impractical and futile because the relationship of trust and confidence has been lost and the consequence of poor performance when the employee concerned is working in a hospital with seriously ill patients is unacceptable. Further, it was contended that reinstatement would be futile because the applicant has been the subject of serious and numerous performance concerns over a number of years and some of those concerns kept on re-occurring. The respondent stated that, if Ms Dafallah had not been dismissed on 1 September 2010, it was likely to have taken place soon thereafter. 332

[178] With respect to each of the incidents that were the subject of a written warning, a meeting was held by Melbourne Health with Ms Dafallah following sending her a letter setting out the allegations. The incident on 4 July 2009 was set out in a letter dated 28 July 2009 363 and a meeting was held on 4 August 2009 to discuss Ms Dafallah’s response to the allegation. A second incident occurred on 25 July 2009 which was also discussed at the meeting on 4 August 2009. In her evidence, it does not appear that Ms Dafallah disputed that, at this meeting, she was given an opportunity to respond to the allegations.

[179] In terms of the incidents on 13 and 17 September 2009, Ms Dafallah was advised of the allegations in a letter dated 6 October 2009. 364 These were discussed at a meeting on 15 October 2009 with Ms Dafallah and her representative. A summary of the meeting was circulated by Melbourne Health.365 Ms Dafallah was of the view that the summary did not reflect what she had said at the meeting.366 However, she did not suggest that she was not given an opportunity to put her side of the story. She also confirmed that she had provided Melbourne Health with a written account of her whereabouts on 13 September 2009.367

[180] With respect to what took place on 10 July 2010, Ms Dafallah received a letter from Melbourne Health dated 22 July 2010 which set out the details of the complaint. 368 A meeting was held on 3 August 2010 to discuss the allegations which Ms Dafallah attended with two union representatives. The meeting was adjourned so that further investigations could be undertaken by Melbourne Health. Another meeting took place on 12 August 2010 but was ended when Ms Dafallah became extremely upset. Following this meeting, the Health Services Union (HSU) requested that Ms Dafallah be able to provide written responses to the allegations. This was agreed to by Melbourne Health. A letter was then sent to Ms Dafallah dated 25 August 2010 which set out Melbourne Health’s responses to Ms Dafallah’s written and verbal explanations.369 As indicated above, the letter stated that a recommendation to dismiss her would be made.

[181] On the basis of the summary in paragraphs 177 to 180 above, I am satisfied that the applicant was provided with an opportunity to respond to the reasons for her dismissal.

[182] Consideration has also been given to the applicant’s submissions that Melbourne Health breached its Disciplinary and Termination of Employment policies. I have not been persuaded that that is the case. Further, I have considered the applicant’s arguments about the alleged breaches of the enterprise agreement. I concur with the respondent’s submissions in this regard and therefore am not of the view that the enterprise agreement has been breached.

[183] However, it needs to be noted that the process followed by Melbourne Health contained some flaws. Firstly, in the letter dated 26 October 2009, in which Melbourne Health set out the outcomes of the meeting on 15 October 2009, it was stated that “There are no records of the John Cade Unit paging you during this time.” 370 During his evidence, Mr Milenkovski admitted this was an oversight and denied that, at the time the letter was written, he had known that John Cade had been paging Ms Dafallah. Mr Milenkovski’s explanation was that the focus of the complaint was on the lack of a response to the pages from 9 East. That may well have been the case but to include a factually incorrect statement in a final warning letter is procedurally deficient. It was the responsibility of the person signing the final warning to have been across all of the facts of the situation.

[184] It also appears that, during the meeting on 15 October 2009, Ms Dafallah was not shown, or given a copy of, the pager records. As central to the complaints at this time was the issue of Ms Dafallah’s non responses to pages, it would be most reasonable for her to have been shown, and been provided with a copy of, these records. 371 The same situation applied to the Door Entry Record (Event History Report)372 which concerned the allegations arising from the incidents on 25 July 2009. It would have been reasonable also for Ms Dafallah to have been given a copy of this document.

[185] Further, with respect to the letter of 25 August 2010 which foreshadowed the making of a recommendation of dismissal, Mr Milenkovski had no explanation as to why the letter stated, at Point 3, that the nurse in charge had to go looking for Ms Dafallah. 373 This was in contrast with the original complaint which had indicated that Ms Aikman had gone to find Ms Dafallah.374 Also, with respect to Point 3, it was Mr Milenkovski’s evidence that he had not known at the time of the letter, that the bloods had been scanned in at Pathology at 12.21 pm -when the letter stated that it was 12.30 pm.375 He admitted that the letter was wrong in this respect, particularly as, at the meeting with Ms Dafallah on 3 August 2010, he had informed her that the bloods had been recorded in pathology at 12.21 pm.376 As indicated above, as his signature was on the letter, it was Mr Milenkovski’s responsibility to have been across all of the facts of the situation.

[186] As well, there appear to be inconsistencies between the letter of 25 August 2010, the letter of 22 July 2010 setting out the allegations, the original complaint and the notes of the discussion with Ms Perez regarding her complaint. The 25 August letter refers to Ms Dafallah being asked, at 1.45 pm, to take the deceased body to the morgue. 377 The original complaint states that the request to Ms Dafallah was at 2.00 pm378 which was repeated by Ms Perez in the notes of the discussion with her about the complaint on 14 July 2010.379 The letter from Melbourne Health, dated 22 July 2010, which set out the allegations, indicated that the request was at 2.00 pm. There does not appear to be an explanation for this in any of the material before me. Again, this is a mistake that should not have occurred.

[187] Although these procedural flaws are not fatal and do not outbalance a valid reason for the dismissal, they are mistakes which should not be made by a large organisation such as Melbourne Health.

Support person – s.387(d)

[188] Ms Dafallah had with her two union officials at the meeting on 3 August 2010 and 10 August 2010 and one union representative at the meeting on 15 October 2009.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[189] The applicant argued that, whilst she had been warned, the warnings were disputed and were flawed both procedurally and in substance. 380

[190] For the respondent, it was submitted that the applicant had been given three warnings prior to her dismissal. 381

[191] As set out above, Ms Dafallah received a first and second written warning on 10 August in relation to unsatisfactory performance (asleep whilst on shift, not communicating with nursing staff, not answering her pages) on 4 July 2009 and 25 July 2009. A final written warning was issued on 26 October 2009 for the incidents on 13 and 17 September 2009 of not communicating with the nurse in charge, not responding to her pager and unprofessional conduct. Following the events of 22 July 2010 and the meeting to discuss her unsatisfactory performance on 12 August 2010, a letter was sent to Ms Dafallah dated 25 August 2010 advising her that a recommendation was being made to terminate her employment.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[192] The respondent submitted that Melbourne Health was a large employer with dedicated human resources personnel who were involved in the disciplinary process and the dismissal of Ms Dafallah. 382

Any other matters – s.387(h)

[193] It was contended on behalf of the applicant that the Tribunal should also take account of:

• Ms Dafallah had been employed for more than ten years



• Ms Dafallah’s dedication and diligence as an employee



• Ms Dafallah’s age and her capacity to find alternative employment



• The clear bias and lack of honesty of Mr Milenkovski and others towards Ms Dafallah.



• The contraventions by Melbourne Health of their own disciplinary and termination policies. 383

[194] The respondent also argued that there were other relevant matters:

• There have been numerous issues with Ms Dafallah’s performance of her duties since 2005



• The applicant had been counselled and given warnings about her performance prior to 2009 and had ample opportunity to improve her performance but she had not done so



• Ms Dafallah’s poor performance of her duties diverted nursing staff from their role of patient care. 384

CONCLUSIONS

[195] 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, on balance, that the termination of Ms Dafallah’s employment was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Ms Dafallah’s dismissal. On the other hand, the procedural aspects with respect to the written warnings were deficient as set out above. However, in balancing all of the factors set out in s.387, Ms Dafallah’s continued unsatisfactory performance outweighs the procedural deficiencies.

[196] It therefore follows that, pursuant to s.385 of the Act, Ms Dafallah was not unfairly dismissed. Accordingly, Ms Dafallah’s application is dismissed.

[197] An order 385 to this effect will be issued separately.

COMMISSIONER

Appearances:

Mr M Willoughby-Thomas for the applicant.

Mr R Millar of counsel for the respondent.

Hearing details:

2010.
Melbourne.
December 7 and 8.

2011.
Melbourne.
February 8 and March 4.

 1   Exhibit A2

 2   Ibid at paragraph 6

 3   Transcript PN 61 - 67

 4   Ibid PN 70 - 73

 5   Ibid PN 74

 6   Ibid PN 75 - 83

 7   Exhibit A2 at paragraph 14

 8   Transcript PN 84 - 91

 9   Exhibit A2 at paragraphs 7 - 8

 10   Ibid at paragraph 9

 11   Exhibit A3

 12   Ibid at paragraphs 3 - 5

 13   Ibid at paragraph 6 and Transcript PN 112 - 113

 14   Ibid at paragraphs 7 and 13 and Ibid PN 115 and 130

 15   Ibid at paragraph 8 and Ibid PN 118 - 122

 16   Ibid at paragraphs 9 - 10 and Ibid PN 123 - 124

 17   Ibid at paragraphs 14 - 15 and Ibid PN 131 - 136

 18   Ibid at paragraphs 16 - 17 and Ibid PN 136 - 144

 19   Transcript PN 152 - 157 and 171 - 172

 20   Ibid PN 154 - 186 and Exhibit A3 at paragraphs 18 - 21

 21   Ibid PN 191 - 194 and Ibid at paragraphs 21 - 22

 22   Ibid PN 195 - 206 and Ibid at paragraphs 27

 23   Ibid at paragraphs 24 - 26

 24   Exhibit A4

 25   Ibid at paragraphs 4 and 268

 26   Transcript PN 232 - 235

 27   Ibid PN 354 - 359

 28   Ibid PN 243 - 249 and Exhibit A4 at paragraph 14

 29   Ibid PN 280 - 283

 30   Ibid PN 290 - 294

 31   Ibid PN 295

 32   Ibid 296 - 304 and 307 - 308

 33   Ibid PN 305 - 306

 34   Ibid PN 309 - 316

 35   Ibid PN 318 - 334

 36   Ibid PN 775

 37   Ibid PN 1091 - 1096 and Exhibit R2, Attachment DM 36 at page 10

 38   Ibid PN 892 - 910

 39   Ibid PN 911 - 916

 40   Ibid PN 1056 - 1058

 41   Ibid PN 924 - 926

 42   Ibid PN 927 - 929

 43   Ibid PN 778 - 779 and 1059 - 1061

 44   Ibid PN 931 - 940

 45   Ibid PN 778 - 783

 46   Ibid PN 796 - 797, 941 - 946, 969 - 971 and 1014 - 1015 and Exhibit R2, Attachment DM3 at pages 7 - 9

 47   Ibid PN 793 - 795 and 1065 - 1070

 48   Ibid PN 799 - 805

 49   Ibid PN 1022 - 1029

 50   Ibid PN 811 - 813

 51   Ibid PN 814 - 816

 52   Ibid PN 1072 and Exhibit R2 Attachment DM 35 at p.39

 53   Ibid PN 1097 - 1107 and Ibid Attachment DM 36

 54   Ibid PN 1073 - 1078 and Ibid Attachment DM 35 at p.40

 55   Ibid PN 817 - 822

 56   Ibid PN 823

 57   Ibid PN 1031 - 1033

 58   Ibid PN 1031 - 1041 and 1061 - 1062

 59   Ibid PN 824, 1021 and 831

60 Ibid PN 1079 - 1088 and Exhibit R2 Attachment DM 35 at p.50

 61   Ibid PN 1053 and Ibid Attachment DM 34 at p.17

 62   Ibid PN 837 - 840

 63   Ibid PN 835

 64   Ibid PN 1042 - 1049 and Exhibit R2 Attachment DM 34 at p.15

 65   Ibid PN 1089 - 1090

 66   Ibid PN 1134 - 1135

 67   Ibid PN 1138 - 1146 and Exhibit A4 at paragraph 117

 68   Ibid PN 1008 - 1012 and Exhibit R2, Attachment DM 34 at p.12

 69   Ibid PN 337 - 341 and 360

 70   Ibid PN 345 - 347

 71   Ibid PN 397 - 398 and 403

 72   Ibid PN 402

 73   Ibid PN 403 - 406

 74   Ibid PN 360

 75   Exhibit R2 at Attachment DM 4

 76   Transcript PN 342 - 343, 364 and 367

 77   Ibid PN 379 - 381

 78   Ibid PN 365 - 366

 79   Ibid PN 296 and 382 - 383

 80   Exhibit R2 at Attachment DM 4

 81   Ibid PN 342 - 352

 82   Ibid PN 458 - 459

 83   Ibid PN 384

 84   Ibid PN 385 - 387

 85   Ibid PN 390 - 391

 86   Ibid PN 408 and 422 - 423

 87   Ibid PN 408

 88   Ibid PN 407 - 418

 89   Ibid PN 419 - 421

 90   Ibid PN 425 and 443

 91   Ibid PN 439

 92   Ibid PN 426 and 444

 93   Ibid PN 424 - 431 and 440 - 441 and 467 - 468 and 474 - 475

 94   Ibid PN 463 - 466 and 469

 95   Ibid PN 433 - 435 and 445 - 449

 96   Ibid PN 424, 442 and 450

 97   Ibid PN 451

 98   Ibid PN 392 - 394

 99   Ibid PN 476 - 477

 100   Ibid PN 478

 101   Ibid PN 452 and 460

 102   Ibid PN 453

 103   Ibid PN 480 - 483

 104   Ibid PN 491 - 500

 105   Ibid PN 499 - 501 and 1197 - 1219 and Exhibit A4 at paragraph 35 - 52

 106   Ibid PN 520, 529, 535 and 586

 107   Ibid PN 501 - 503, 523, 533, 539 - 540

 108   Ibid PN 525

 109   Ibid PN 537 - 538 and 573 - 574

 110   Ibid PN 583 and Exhibit A4 at paragraph 53 and Attachment 6

 111   Ibid PN 544

 112   Ibid PN 627 - 629

 113   Ibid PN 647

 114   Ibid PN 544 - 551

 115   Ibid PN 630 - 632

 116   Ibid PN 562 - 568

 117   Ibid PN 571 and 582

 118   Exhibit R2 at Attachment DM20

 119   Ibid PN 574

 120   Ibid PN 575

 121   Ibid PN 652 - 653

 122   Ibid PN 652 - 658

 123   Ibid PN 658 - 660

 124   Ibid PN 742 - 746

 125   Ibid PN 750 - 751

 126   Ibid PN 661 - 663

 127   Ibid PN 664 – 683, 687 - 688

 128   Ibid PN 693 - 700

 129   Ibid PN 250 - 257 and 693 - 700

 130   Ibid PN 270 - 276

 131   Ibid PN 693 - 700

 132   Ibid PN 687 - 692

 133   Ibid PN 277 - 279

 134   Ibid PN 707 - 718

 135   Ibid PN 719

 136   Ibid PN 720 and 725

 137   Ibid PN 724 and 730

 138   Ibid PN 721 - 724

 139   Ibid PN 727 and 736

 140   Ibid PN 753 - 762

 141   Ibid PN 1125 - 1132

 142   Ibid PN 764 - 765

 143   Ibid PN 766

 144   Ibid PN 1109 - 1115 and Exhibit A4 at paragraph 94 - 96

 145   Ibid PN 1118

 146   Ibid PN 768 - 769

 147   Ibid PN 1170 and 1173 - 1176

 148   Ibid PN 1147 - 1156 and Exhibit R4 at paragraph 118

 149   Ibid PN 1157 - 1160

 150   Exhibit R3

 151   Transcript PN 1515 - 1533

 152   Ibid PN 1533 - 1537

 153   Ibid PN 1538 - 1541

 154   Ibid PN 1543 - 1546

 155   Ibid PN 1547 - 1567

 156   Ibid PN 1568 and PN 1571

 157   Ibid PN 1569 - 1570

 158   Exhibit R3 at paragraphs 7 - 8

 159   Transcript PN 1577 - 1585, 1587 - 1589 and 1590

 160   Ibid PN 1586 and Exhibit R3 at paragraph 13

 161   Ibid PN 1595 - 1609

 162   Ibid PN 1610 - 1612 and Exhibit R3 at paragraph 17

 163   Ibid PN 1613 - 1615

 164   Ibid PN 1616 and 1627

 165   Exhibit R3 at paragraph 18

 166   Ibid at Attachment NPP2 and Transcript PN 1622

 167   Transcript PN 1638

 168   Ibid PN 1683

 169   Ibid PN 1642 - 1649

 170   Ibid PN 1650 - 1664

 171   Exhibit R3 at Attachment NPP4

 172   Ibid at Attachment NPP3

 173   Transcript PN 1664

 174   Exhibit R3 at paragraphs 23 - 25

 175   Transcript PN 1665 - 1682

 176   Ibid PN 1686 - 1688 and 1695

 177   Ibid PN 1690 and 1693

 178   Ibid PN 1697 - 1702

 179   Ibid PN 1723 and 1726

 180   Ibid PN 1685 - 1717 and 1724

 181   Exhibit R4

 182   Transcript PN 1769

 183   Ibid PN 1774 - 1780

 184   Ibid PN 1785 - 1793 and 1800

 185   Ibid PN 1799 - 1802

 186   Ibid PN 1803 - 1805

 187   Ibid PN 1811 - 1820, 1834 - 1836

 188   Ibid PN 1833 and 1837

 189   Ibid PN 1838

 190   Ibid PN 1835 - 1838

 191   Ibid PN 1842 - 1845

 192   Ibid PN 1846 - 1849

 193   Ibid PN 1883 - 1895

 194   Ibid PN 1911 - 1926

 195   Exhibit R4 at paragraph 11

 196   Exhibit R5

 197   Transcript PN 2834 - 2838

 198   Exhibit R5 at paragraphs 10-15

 199   Ibid at paragraph 16-17

 200   Ibid at paragraph 20

 201   Transcript PN 2855 - 2856

 202   Ibid PN 2856 - 2882

 203   Ibid PN 2839 - 2850 and 2853 - 2854

 204   Ibid PN 2881 and Exhibit R5 at paragraph 18

 205   Exhibit R2

 206   Transcript PN 1273 - 1275

 207   Ibid PN 1276 - 1279 and Exhibit R2 at paragraph 10

 208   Ibid PN 1293 - 1306

 209   Ibid PN 2530 and 2536 - 2544 and Exhibit R2 at Attachment DM 35 at p.69

 210   Ibid PN 2552 and 2554

 211   Ibid PN 2553

 212   Ibid PN 2549

 213   Ibid PN 2570 - 2571 and Exhibit R2 at Attachment DM 5

 214   Ibid PN 2589 - 2591 and Ibid at Attachment DM 3

 215   Ibid PN 2592 - 2594

 216   Ibid PN 2622

 217   Ibid PN 2630 - 2632

 218   Ibid PN 2633 - 2635

 219   Ibid PN 2598 - 2601, 2607, 2610 and 2613 - 2621

 220   Ibid PN 2654 - 2669 and Exhibit R2 at Attachment DM 10 and DM 16

 221   Ibid PN 2728

 222   Ibid PN 1307 - 1314

 223   Ibid PN 1321 - 1327

 224   Ibid PN 1370 and 1392

 225   Ibid PN 2025 - 2028

 226   Transcript PN 1370 - 1388

 227   Ibid PN 2029 - 2041

 228   Exhibit A2 at Attachment DM 25

 229   Transcript PN 1393 - 1399 and PN 2700 - 2701

 230   Ibid PN 1402

 231   Ibid PN 1426 - 1427 and 1441

 232   Ibid PN 2066 - 2067

 233   Ibid PN 1474 - 1493

 234   Ibid PN 1449 - 1456

 235   Ibid PN 1460 - 1473 and 1955

 236   Ibid PN 1494 and 1969

 237   Ibid PN 2004 - 2005 and 2053 - 2054

 238   Ibid PN 2051 - 2052, 1983 - 1984 and 1961 - 1962

 239   Ibid PN 2001

 240   Ibid PN 1408 and 1416

 241   Ibid PN 1415

 242   Ibid PN 2226

 243   Ibid PN 2267 - 2285

 244   Ibid PN 2287 - 2294

 245   Ibid PN 2295 - 2297

 246   Ibid PN 2083 - 2085

 247   Ibid PN 2149 - 2150

 248   Exhibit R2 at paragraph 94 and Ibid PN 2236 and 2238

 249   Exhibit R2 at paragraph 94

 250   Transcript PN 2758

 251   Ibid PN 2240 - 2258

 252   Ibid PN 2255

 253   Ibid PN 2307

 254   Ibid PN 2769

 255   Ibid PN 2298 - 2304

 256   Ibid PN 2124 - 2125

 257   Exhibit R2 at Attachment DM 32

 258   Transcript PN 2308 - 2312

 259   Ibid PN 2326 - 2327

 260   Ibid PN 2770 - 2771

 261   Ibid PN 2086 - 2115

 262   Ibid PN 2336 - 2339

 263   Ibid PN 2343 - 2345

 264   Ibid PN 2346 - 2347

 265   Exhibit R2 at Attachment DM 29

 266   Transcript PN 2356

 267   Ibid PN 2366

 268   Exhibit R2 at Attachment DM 32

 269   Transcript PN 2426 - 2441

 270   Ibid PN 2456 - 2457

 271   Ibid PN 2514

 272   Ibid PN 2692 - 2699, 2706 - 2715 and 2795 - 2801

 273   Ibid PN 2923 - 2935

 274   Exhibit A5

 275   Ibid and Transcript PN 2946 - 2948

 276   Ibid and Ibid PN 2951

 277   Ibid and Ibid PN 2950

 278   Ibid at page 4 and Ibid PN 2970

 279   Exhibit A5 at pages 4 - 5 and Transcript PN 2971 - 2976

 280   Ibid at page 5 and Ibid PN 2983 and 2985

 281   Ibid at page 6 and Ibid PN 2990

 282   Ibid at page 7 and Ibid PN 2991 - 2992

 283   Ibid and Ibid PN 2944

 284   Exhibit A6

 285   Ibid at page 3 and Transcript PN 3010 - 3012

 286   Ibid at page 4 and Ibid PN 3013

 287   Ibid at pages 4 - 5 and Ibid PN 3016

 288   Ibid at page 6 and Ibid PN 3025

 289   Ibid at pages 5-6 and Ibid PN 3026

 290   Exhibit A7

 291   Ibid at pages 1 - 6 and Transcript PN 3030 - 3069

 292   Ibid at page 2 and Ibid PN 3035

 293   Ibid at page 4 and Ibid PN 3051

 294   Ibid at pages 5 - 6 and Ibid PN 3064

 295   Transcript PN 3069

 296   Ibid and Exhibit A7 at page 7

 297   Exhibit A8 and see Transcript PN 3077 - 3104

 298   Ibid at page 1 and Ibid PN 3077

 299   Exhibit A9

 300   Ibid at page 1

 301   Exhibit A10

 302   Transcript PN 3112

 303   Ibid PN 3112 - 3182 and Exhibit A10

 304   Exhibit A10 at pages 7 - 8

 305 (1994) FCR 300

 306 175 ALR 173

 307 (1992) FCR 20

 308   Submissions of the applicant in reply, dated 20 March 2011 at paragraphs 156 – 168

 309   Submissions of the respondent, dated 16 March 2011, at paragraph 2

 310   Ibid at paragraph 5 and Transcript PN 3324

 311   Transcript PN 3327

 312   Submissions of the respondent, dated 16 March 2011, at paragraph 6 and Ibid PN 3323

 313   Transcript PN 3328

 314   Ibid PN 3325 and Submissions of the respondent, dated 16 March 2011, at paragraphs 7-8

 315   Ibid PN 3327

 316   Exhibits A5 - 10

 317   Submissions of the respondent, dated 16 March 2011, at paragraph 17

 318   Ibid at paragraphs 19 - 20

 319   Exhibit A6

 320   Submissions of the respondent, dated 16 March 2011, at paragraph 23

 321   Ibid at paragraph 26

 322   Ibid at paragraph 27

 323   Exhibit A7

 324   Submissions of the respondent, dated 16 March 2011, at paragraphs 34 and 39

 325   Ibid at paragraphs 44 - 46

 326   Exhibit A8

 327   Submissions of the respondent, dated 16 March 2011, at paragraphs 50 – 58

 328   Ibid at paragraphs 86 – 87

 329   Ibid at paragraphs 82 - 83

 330   Transcript PN 3331 - 3332

 331   Ibid PN 3334 - 3336

 332   Submissions of the respondent, dated 16 March 2011, at paragraphs 98 – 99

 333   Ibid at paragraph 100

 334   Exhibit A6 at paragraph 3(b)

 335   Submissions of the Respondent dated 16 March 2011 at paragraph 89

 336   Exhibit R2 at Attachment DM 8

 337   Ibid at Attachment DM3

 338   Transcript PN 338

 339   Ibid PN 345

 340   Ibid PN 392

 341   Ibid PN 392

 342   Exhibit R2 at Attachment DM 9

 343   Ibid at Attachment DM 11

 344   Exhibit R3 at paragraph 19 and Attachment NPP1

 345   Ibid at paragraph 20

 346   Exhibit R2 at paragraph 50 and Transcript PN 452 and 460

 347   Exhibit A4 at paragraph 25

 348   Transcript PN 444 - 450

 349   Ibid PN 409, 418 and 421

 350   Exhibit R2 at Attachment DM 25

 351   Transcript PN 490 - 499

 352   Ibid PN 499

 353   Exhibit R2 at Attachment DM16

 354   Transcript PN 630

 355   Exhibit R2 at paragraph 81

 356   Ibid at Attachment DM 18

 357   Submissions of the applicant in reply, dated 20 March 2011 at paragraph172

 358   Exhibit R1 at paragraph 9

 359   Exhibit R2 at Attachment DM 33

 360   Exhibit R5 at Attachment TT2

 361   Submissions of the applicant in reply, dated 20 March 2011 at paragraph 172 and Exhibit A1 at paragraph 16 and Transcript PN 3312 - 3313

 362   Exhibit R1 at paragraphs 10 - 12

 363   Exhibit R2 at Attachment DM 7

 364   Ibid at Attachment DM 19

 365   Ibid at Attachment DM 20

 366   Transcript PN 574

 367   Ibid PN 583

 368   Exhibit R2 at Attachment DM 29

 369   Ibid at Attachment DM 32

 370   Ibid at Attachment DM 28

 371   Ibid at Attachments DM 16 and DM 18

 372   Ibid at Attachment DM 11

 373   Ibid

 374   Ibid at Attachment DM 26

 375   Transcript PN 2308

 376   Ibid PN 2310 - 2313

 377   Exhibit R2 at Attachment DM 32

 378   Ibid at Attachment DM 26

 379   Ibid at Attachment DM 27

 380   Submissions of the applicant in reply, dated 20 March 2011 at paragraph 172 and Exhibit A1 at paragraph 17

 381   Exhibit R1 at paragraphs 14 - 17

 382   Ibid at paragraph 18 - 19 and Transcript PN 3329

 383   Exhibit A1 at paragraph 18 and Submissions of the applicant in reply, dated 20 March 2011 at paragraph 180 and Transcript PN 3314 - 3319

 384   Exhibit R1 at paragraph 20

 385   PR517564

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