Schroeder and Health Services Union of Australia v Mildura Base Hospital

[1997] IRCA 303

INDUSTRIAL RELATIONS  COURT OF AUSTRALIA

Industrial Law - Termination of Employment - serious misconduct - opportunity to respond to allegations - valid reason for termination.

ss.170DC, 170DE, 170EA

Gibson v Bosmac Pty Ltd (1995) 60 IR 1

D’Antuono v Minister for Health (unreported, Federal Court of Australia, 5 December 1997) WAG 100 of 1997, Judgment No 1370/97

Selvachandran v Peteron Plastics (1995) 62 IR 371
Lloyd and The Australian Nursing Federation (Victorian Branch) v Mildura Base Hospital (IRCA, unreported, 6 March 1997)
Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224
Puccio v Catholic Education Office and Another (1996) 68 IR 407
Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J)

Byrne v Australian Airlines Ltd (1995) 131 ALR 422; 69 ALJR 797 and 61 IR 32

SCHROEDER & HEALTH SERVICES UNION OF AUSTRALIA & OTHERS   V MILDURA BASE HOSPITAL

VI-1236 of 1996
VI-1237 of 1996
VI-1246 of 1996
VI-1247 of 1996
VI-1248 of 1996

Judicial Registrar Ryan
Melbourne
18 December 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI-1236  of   1996 VI-1237  of   1996 VI-1246  of   1996 VI-1247  of   1996 VI-1248  of   1996

BETWEEN:

SHARON SCHROEDER & HSUA

FIRST APPLICANTS

TRACEY WINSLOW & HSUA

SECOND APPLICANTS

SANDRA TWOMEY & HSUA

THIRD APPLICANTS

CEANITA SPOONER & HSUA

FOURTH APPLICANTS

JULIEANNE DAVEY & HSUA
FIFTH APPLICANTS

AND:

MILDURA BASE HOSPITAL
RESPONDENT

JUDICIAL REGISTRAR:

RYAN

DATE OF ORDER:

18 DECEMBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. Application No VI96/1236 of Sharon Lee Schroeder and Health Services Union of Australia be dismissed.

2. Application No VI96/1237 of Tracey Elizabeth Winslow and Health Services Union of Australia be dismissed.

3. Application No VI96/1246 of Sandra Helen Twomey and Health Services Union of Australia be dismissed.

4. Application No VI96/1247 of Ceanita Ann Spooner and Health Services Union of Australia be dismissed.

5. Application No VI96/1248 of Julieanne Davey and Health Services Union of Australia be dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI-1236 of 1996 VI-1237 of 1996 VI-1246 of 1996 VI-1247 of 1996 VI-1248 of 1996

BETWEEN:

SHARON LEE SCHROEDER & HSUA
FIRST APPLICANTS

TRACEY ELIZABETH WINSLOW & HSUA
SECOND APPLICANTS

SANDRA HELEN TWOMEY & HSUA
THIRD APPLICANTS

CEANITA ANN SPOONER & HSUA
FOURTH APPLICANTS

JULIEANNE DAVEY & HSUA
FIFTH APPLICANTS

AND:

MILDURA BASE HOSPITAL
RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	18 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE APPLICATIONS
These are applications for relief in respect of termination of employment. The applications were lodged by the Health Services Union of Australia (the union) on behalf of five State Enrolled Nurses (the applicants). The applicants had all been employed for some years at Raechel Willson House, a nursing home attached to the Mildura Base Hospital.

THE DISMISSALS
On 3 February 1996 the Chief Executive Officer of the Mildura Base Hospital advised each applicant in writing that her employment had been terminated immediately “for serious and wilful misconduct”.

The grounds for the decisions to dismiss the applicants were stated to include

• failure to implement appropriate standards of professional practice

• aged abuse (i.e. abuse of aged persons)

• Occupational Health and Safety breaches

• harassment

• failure to report and/or appropriately document care or incidents

In the case of the applicant Spooner the grounds of harassment and failure to report and document were not relied upon and in the case of the applicant Twomey an additional ground “insubordination” was included.

THE COMPLAINTS
On 23 November 1995 the Secretary of the Resident/Relative Group at Raechel Willson House wrote to the Director of Nursing at Mildura Base Hospital. She described herself as “a concerned relative and Secretary of the .....Group”. She raised “concerns as to nursing practices in Raechel Willson House” and requested that “the source of complaints be kept strictly confidential, even from the unit coordinator, as we fear retribution against our residents.”

Attached to this letter is a two page typed statement which includes the following

“The main troublemakers appear to be Sandra, Tracy, Ceanita, Sharon, Karen, Julieanne and Denise.”

This appears to be a reference to the five applicants and to two other State Enrolled Nurses who were suspended but after investigation their employment was not terminated.

Mrs Hanson refers to “four letters written by relatives for your perusal”.

The first is typed but is not signed. It bears a handwritten endorsement from Mrs Hanson suggesting that it is a complaint made by a man on behalf of his wife, a resident at Raechel Willson House. The resident is named. The note reads as follows:

“It appears that if an inmate dares make a complaint some of the nurses penalise them with minimal care and a complete lack of TLC. namely Debbie, Ceanita, Denise, Sandra to a lesser degree.”

The reference to Ceanita and Sandra appear to be a reference to the applicants Spooner and Twomey. There are three handwritten, signed complaints. The first is from a woman complaining about the treatment of her husband, an inmate at Raechel Willson House, and the treatment of “other patients”. The five applicants appear to have been named by their first names in this complaint. The second complaint is also signed by a woman on behalf of her husband, an inmate at Raechel Willson House. The third is signed by a woman on behalf of her mother, a resident at Raechel Willson House.

THE INVESTIGATION
On 11 December 1995, the Director of Nursing at the hospital, Mrs Lowe, directed three senior officers to begin a preliminary investigation. The three officers who undertook this preliminary investigation were Mr Brown, the Deputy Director of Nursing, Mr Caulfield, Human Resources Manager and Mrs Beaumont, Assistant Director of Nursing (Human Resources). The Chief Executive Officer of the hospital, Mr Duckett, was advised of the complaints on 11 December and Mrs Lowe gave him a detailed briefing on 13 or 14 December.

A number of staff were interviewed between 12 and 14 December and on 14 December Mr Duckett directed a panel comprising Mrs Lowe, Mr Caulfield and Mr Brown to conduct a more detailed investigation. On 15 December, Mr Corboy, Principal Human Resources Consultant, Victorian Hospitals Industrial Association was telephoned by Mr Caulfield. Mr Corboy remained in telephone contact with Mr Caulfield and attended at the hospital on 20 December. On that day he read the statements that had been taken and signed by various staff members and advised that the allegations were sufficiently serious to justify standing down the applicants, several other State Enrolled Nurses and the Charge Nurse responsible for the management of Raechel Willson House. These employees were stood down on 21 December 1995.

THE SUSPENSIONS
On 21 December the Chief Executive Officer wrote to each applicant in the following terms.

“Please be informed that very serious allegations of misconduct have been made about you and your professional performance in your employment with Mildura Base Hospital.

The seriousness of these allegations is such that I have decided to stand you down with pay immediately.

Please note that a thorough and immediate investigation into these allegations will be conducted by the Hospital. As part of these preliminary investigations you will be given every opportunity to respond to the allegations made.

A written communication will be forwarded to you not later than the 2nd January 1996, detailing these allegations and you will be directed to respond in writing to these allegations within a defined period.

In addition I direct that you be available to attend the hospital at 11.00 a.m.(Spooner), 1.00 pm (Davey), 3.00 pm (Twomey), 5.00 pm (Winslow and Schroeder) on the 5th January 1996, to be interviewed by senior management representative. Please be at the Director of Nursing’s office at the above time. I advise that you may wish to bring an observer to this meeting.

I should also inform you that should any form of intimidation or harassment be carried out against any person or persons who have advised the hospital of the allegations, such action itself will be regarded by the hospital as serious and wilful misconduct and will result in the instant dismissal of those involved.”

THE ALLEGATIONS OF 2 JANUARY 1996
On 2 January 1996 the Chief Executive Officer wrote to each applicant again and detailed a series of “allegations concerning your conduct and performance at the Raechel Willson House Nursing Home.”

Each letter contained the following statement “as an enrolled Nurse, you have a duty of care to provide suitable Nursing care of all patients within the Nursing Departments Policies and Procedures and the Commonwealth Outcome Standards”.

All five letters stated that “the allegations are a breach of appropriate conduct and performance for:

• conveyor belt showering of patients

• breach of Commonwealth Outcome Standards 5.1, 5.2, 5.3 and 5.4

• taking patients food

• neglecting patients needs (specific examples are given for each applicant)

The letters also include other allegations as breaches of appropriate conduct and performance as follows:

• long and unauthorised breaks (Winslow, Twomey, Schroeder and Spooner)

• failing to answer patient buzzers (Davey, Schroeder, Spooner)

• rough handling of patients (Twomey and Schroeder)

• failing to follow instructions (Twomey and Schroeder)

• breach of nursing policy and/or practice (Twomey and Schroeder)

• inappropriate treatment of relatives (Schroeder and Spooner)

• watching TV while on duty (Schroeder and Spooner)

• inappropriate and abusive language (Twomey and Spooner)

• failing to assist other staff with lifts (Twomey and Spooner)

• breach of patient policy (Spooner)

Each letter concluded as follows:

“Given the severity of these allegations, I direct you to consider and respond in writing. Further I advise you that are required to attend the Mildura Base Hospital Monday 8th January, 1996 at 11.00 am (Spooner), 1.00 pm (Davey), 3.00 pm (Twomey), 4.00 pm (Winslow), 5.00 pm (Schroeder). (Please note altered date.)”

Each letter included as an enclosure a document which detailed specific allegations and included unsourced extracts from statements made by staff interviewed in the preliminary investigation. Later versions of these documents are discussed below.

THE ALLEGATIONS OF 7 JANUARY 1996
On 7 January 1996 the Chief Executive Officer wrote again to each applicant referring to his earlier letters of 21 December and 2 January and advising that

• the rescheduling of the inquiry from 5 to 8 January was “due to (the hospital) not being able to conduct all of the interviews on Friday 5 January 1996”

• “your union has intervened and has requested you be provided with further details concerning the allegations

• “because of this the hospital has rescheduled the inquiry to Thursday 11 January 1996 at 11.00 am (Spooner), 1.00 pm (Davey), 3.00 pm (Twomey), 4.00 pm (Winslow), 5.00 pm (Schroeder) to enable you to further consider the allegations made against you”.

Each letter concluded as follows:

“You will be required to attend this inquiry and you will be given an opportunity to defend yourself against the allegations that have been made against you. This opportunity is available to you under Section 170DC of the Industrial Relations Act 1988 (copy attached).

Should you decline this offer or opportunity, the Hospital will decide on the allegations on the evidence that has been presented to it.

I have also attached further particulars relating to the serious allegations made against you and the possible contravention of various Standards, Rules, Policies and Acts and Regulations. Please note that these further particulars may have caused these allegations to vary slightly from those sent to you on 2nd January, 1996. This may have happened because of the original witnesses supplying more and further particulars in regard to their statements.

The seriousness of these allegations are such that the Hospital is protecting the identity of the people who have made these allegations as they fear that they may be subject to reprisals, intimidation or harassment type action.

Please be advised that as indicated in these further particulars, the incidents that have been set out have been properly identified and witnessed by one or more witnesses.

Again, I should inform you that should any form of intimidation or harassment be carried out against any person, or persons who have advised the Hospital of the allegations, such action itself will be regarded by the Hospital as serious and wilful misconduct and will result in instant dismissal of those involved.”

The letter of 7 January to each applicant included as an enclosure a document which contained extracts taken from statements by Raechel Willson House staff during the course of the preliminary investigation. In each case, the document is specific to the applicant although there was some material which is common to each applicant. The common material is set out in a similar format but not in the same order in each document and there are extracts from staff statements and certain allegations which relate only to one applicant or in some cases two or three of the applicants.

In each document an extract from a staff member’s statement is followed by an allegation. The format of each allegation appears to have been prepared by one or more members of the original investigating team or by Mrs Lowe or Mr Corboy or by consensus between the original team and Mrs Lowe and/or Mr Corboy.

The extract from the statement of each staff member which precedes each allegation usually begins with the words “I say that”. This was the format adopted by the investigators in drafting the statements signed by at least 24 staff members. Because each extract from each statement is prefaced with the words “I say that”, the documents themselves were often referred to in a long hearing as the “I say” documents. I shall refer to these documents as the allegations of 7 January.

There are also references in these documents to statements by relatives of residents and to statements by three residents. A number of the staff did not want their identify revealed openly. The persons making statements are referred to as “witnesses”. The statements are coded alphabetically from A to X and R1 to R5. The coding suggests statements taken from 29 people (staff, residents and relatives).

ACCESS TO WITNESS STATEMENTS
At trial, the applicants were represented by Mr Clancy and Ms Fegan of the Health Services Union of Australia. Mr Kaufman appeared as counsel for the respondent. Mr Clancy and Ms Fegan alleged that the coded reference to witnesses in the allegations of 7 January and the procedure adopted before and during Panel of Inquiry hearings denied the applicants ready and effective access to the identity of certain witnesses. The Court rejects this proposition. Some members of staff consented to the open release of their identity for use in the hearings. Others were more reticent. Nevertheless, I am satisfied that the union representatives had access to the code which identified all persons who made statements. I am satisfied that the union representatives, and each applicant, had access to and the ability to examine each statement during the course of each Panel of Inquiry hearing. I am satisfied from the evidence of the applicants that they knew and were able to confirm the identity of staff members who made statements on which the allegations were made and the identity of other witnesses who confirmed or corroborated certain claims made in the statements. Initially there were some errors in references to witness coding and the applicants were never provided with the full code and were never given copies of the witness statements.

There is no evidence that suggests that the applicants or their representatives were denied access to statements or to the identity of those who made them. There is evidence which suggests that the applicants and their representatives did not often call for detailed access to the statements during the Panel of Inquiry hearings. That is, of course, a different matter. The statements were there at the hearings. They were available. There is no suggestion that time and access would not have been granted if the applicants or their representatives had sought specific access during the course of each hearing. From time to time during the panel hearings the union representatives sought and were granted access to statements.

The Court notes that

• the preliminary investigations and the more formal investigation were thoroughly and painstakingly conducted.

• the union and the applicants were given time and access

• the investigators were not professionally trained as investigators and were not police or lawyers.

The Court also notes that the members of the Panel of Inquiry set up by the hospital were not lawyers or magistrates or persons familiar with judicial process and were probably not familiar with administrative review process either. However, an employer cannot be expected and is not required to investigate allegations of misconduct by utilising the services of police, lawyers or other trained investigators.

The hospital in these cases went to considerable lengths to conscientiously investigate the complaints, to formulate allegations and to ensure that the applicants had adequate opportunity to respond.

ADDITIONAL DETAIL IN ALLEGATIONS OF 7 JANUARY
The written allegations of 7 January are as follows.

Against All The Applicants

• refusing to help fellow workers lift residents

• unauthorised breakfast breaks of thirty minutes

• stealing and consuming toast from the breakfast trays of residents

• unauthorised lunch breaks of up to one and a half hours

Against All Applicants Except Spooner

• conspiring and planning to carry out conveyor belt showering of residents over a regular period namely June 1995 to December 1995

• failing to properly wash or shower residents and performing only “bird baths”

• subjecting residents to excessive noise levels by yelling and calling out from room to room

• contravening sections 25(2)(b) and 26(2)(a) and (b) of the Occupational Health and Safety Act 1995 in respect of a lunch at the Grand Hotel

Against All Applicants Except Davey

• giving a resident “the treatment” meaning leaving her on the toilet for periods of up to and excess of one half hour and shoving her into a wheelchair

Against All Applicants Except Winslow

• ignoring residents who have called for help or assistance resulting in the residents becoming incontinent

Against Twomey, Winslow and Schroeder

• on 2 November 1995 harassing, humiliating, intimidating, demeaning and belittling a resident by requiring her to beg for a towel to dry her hair

Against Winslow, Schroeder and Davey

• on or about 12 December 1995 making no attempt to answer a patient’s buzzer or to assist him or take him off the toilet

• conveyor belt showering of two female residents in the first week of October 1995 with instructions given by a supervising nurse that the showering was to be continued by the one nurse responsible for each individual resident

Against Schroeder and Twomey

• rough handling of patients

• failing to follow instructions

• leaving a resident on the toilet from 11.30 am to 12.50 pm in mid August 1995 and ignoring two requests from a senior nurse to check on him

• breach of nursing policy and/or practice

• speaking in a disrespectful manner to a supervising associate charge nurse without any regard for his authority

Against Schroeder and Spooner

• inappropriate treatment of relatives

• watching television while on duty

Against Winslow and Davey

• intimidating and harassing an associate charge nurse by giving him the cold shoulder for reporting to the charge nurse that they were involved in conveyor belt showering

Against Winslow and Schroeder

• on 9 December 1995 requiring the relative of a resident to take a hospital blanket home and wash the blanket

Against Winslow and Twomey

• distributing three quarters of a birthday cake, the property of a resident, among staff “thus depriving the residents of their property”

Against Winslow

• misleading an associate charge nurse as to the absence of an enrolled nurse from the workplace and accepting responsibility for the residents under the supervision of the enrolled nurse and then leaving the residents in an unsupervised situation

• failing to properly feed a male resident on 4 December 1995

• taking an extra lunch break of five to ten minutes on 21 November 1995

• on or about 2 December 1995 failing to answer a buzzer and failing to take a male resident to the toilet

Against Twomey

• frequently swearing and speaking in derogatory terms to residents and fellow employees

• on 12 November 1995 expressing the view to an enrolled nurse in the hearing of a female resident that the resident “should go for a swim in the river in a wheelchair and should be taken down the river” and referring to “arm floaties filled with cement”

• in mid October taking an extended breakfast break and leaving residents unsupervised

• frequently swearing and using unseemly and vulgar language in front of staff and residents

• discussing confidential resident matters with other nurses in a loud tone within the hearing of other residents

• using derogatory terms and language to a superior nurse

• on the morning of 12 December 1995 ignoring the buzzer of a female resident with the result that the resident became incontinent and very distressed

Against Davey

• in first or second week of November 1995 ignoring a reasonable request from a female resident to take her to the toilet with the result that the resident became incontinent, upset and distressed

• on or about 8 December 1995 ignoring a reasonable request from a female resident to get her a pan resulting in the resident becoming incontinent

• between 30 November 1995 and 13 December 1995 ignoring a reasonable request from a male resident to be taken to the toilet

• between 23 November 1995 and 14 December 1995 using deodorant on a male resident, contrary to an allergic condition, thus causing a skin reaction

• between 23 November 1995 and 30 November 1995 refusing to carry out a reasonable direction by a supervisor

• on or about 8 December 1995 leaving the workplace ten minutes prior to completion of the rostered shift without informing the supervisor

• pulling the nightdress of a female resident over her head while placing her on the commode and leaving her in that position “knowing that she was paralysed in her right arm and unable to pull her nightdress down

Against Spooner

• frequently engaging in assault and battery towards residents

• breaching resident privacy and confidentiality on 4 September 1995

• on 4 September 1995 breaching residents rights

• being extremely rude and personal in comments to residents relatives and causing distress and intimidation to relatives

• responding to residents in a belittling and derogatory manner causing offence to the residents or relatives in proximity

THE RESPONSE TO THE ALLEGATIONS OF 7 JANUARY
On 9 January each applicant wrote and signed a letter to the Chief Executive Officer. The letters are in identical terms and all read as follows:

“Dear Mr Duckett

In response to the letter dated 7/1/96 which contains a general summary of allegations. I wish to inform you that I am denying all of the allegations.

I am not in the position to respond to any specific allegations until I have been given all the relevant information/documentation e.g. names of witnesses, letters and incident reports.”

HOSPITAL RESPONSE 10 JANUARY 1996
In letters dated 10 January 1996 the Chief Executive Officer of the hospital responded individually to each applicant. The first five paragraphs and the final paragraph in each letter are identical. The sixth paragraph in each letter is specific to the particular applicant. The letters, with the paragraphs numbered, read as follows:

1. “I refer to your letter of 9th January, 1996 which was in response to the Hospitals letter of 7th January, 1996. I have noted your written response and your unions verbal advice that you will not be attending the hearing. I am however taking this last opportunity to advise you of the seriousness of your decision and again the seriousness of the allegations that have been made against you.

1. The Hospital has advised you on 2nd January of the allegations and following representation from your union, we provided you with copies of the statements and allowed additional time for you to consider the statements and the allegations. On 9th of January, we provided a detailed account of the allegations to you and confirmed seriousness of the allegations and the interview time.

1. As we have an obligation to investigate serious and wilful misconduct in a timely fashion, we believe you have had both enough time and clear details of the allegations to enable you to confirm or deny each specific allegation. We do not accept the general nature of the denial as stated in your letter today.

1. As previously advised the Industrial Relations Act places obligations to allow the employee to answer allegations by the employer concerning the conduct of (sic) performance.

1. The seriousness of your action in declining to respond to the allegations leaves the Hospital in the position to deal with the allegations on the information it has at hand and this could result in your dismissal from your employment with the Hospital.

1. (Winslow) For example, I refer to two incidents, one incident concerning Mrs Hicks and the incident in which she was showered and shoved into a wheelchair, and the other incident “Conveyor belt showering”, which breaches the Commonwealth Outcome Standards. These incidents amongst others are specific to you. They are not general in character.

1. (Davey) For example, I refer to two incidents, one incident concerning Mr Slade and another incident “Conveyor belt showering”, which breaches the Commonwealth Outcome Standards. These incidents amongst others are specific to you. They are not general in character.

1. (Twomey) For example, I refer to two incidents, one incident concerning Mrs Whitford and the manner in which she had to request a “towel” and the other incident “Conveyor belt showering”, which breaches the Commonwealth Outcome Standards. These incidents amongst others are specific to you. They are not general in character.

1. (Schroeder) For example, I refer to two incidents, one incident concerning Mr Walter and the manner in which he was pushed from bed to chair and chair to bed and the other incident “Conveyor belt showering”, which breaches the Commonwealth Outcome Standards. These incidents amongst others are specific to you. They are not general in character.

1. (Spooner) For example, there are separate specific incidents which have been outlined in our correspondence date 7 January 1996 and relate to residence (sic) Mr Ted Higgins, Mrs Aileen Whitford, Mrs Violet Russell, Mrs Menzies and Mrs Hicks. These incidents amongst others are specific to you. They are not general in character.

1. Further the Hospital will be in the position to identify the witnesses to this and the other allegations that have been made against you when you appear at the inquiry at the time and date set out in my letter of 7th January, 1996. Should you wish to discuss any particular matter concerning this correspondence please contact the Hospital’s Human Resources manager or the Chief Executive Officer.”

FURTHER DEFERRAL OF THE INTERVIEWS
The Chief Executive Officer wrote to each of the applicants again on Thursday 11 January after they had all failed to appear for the interviews scheduled that day. Mr Duckett described the interview appointments rescheduled for 11 January as “a lawful instruction to attend (your) interview” and stated “the hospital now requires you by close of business on Friday (i.e. the next day 12 January) to contact either Mr Sid Duckett or Mr Bruce Caulfield to advise why you did not attend the interview”.

In his identical letters Mr Duckett

• expressed the view that the allegations had been made by persons regarded as reliable witnesses

• revealed that the hospital had permission to release the names of those persons who had made allegations

• directed each applicant to attend for interview at 8.00 am on Saturday 13 January

• indicated that “the names of the persons making and witnessing the allegations...may be picked up personally from the Deputy Director of Nursing’s office, 24 hours prior to... interview that is 8.00 am on Friday 12 January 1996”

However, the next paragraph of the letters to the applicants reveals that all the names of the persons “making and witnessing the allegations” were not to be made available at 8.00 am on Friday 12 January. Mr Duckett wrote “these names are coded and the code is set out annexed to this letter. These names are the principal witnesses and the hospital is endeavouring to have the permission of all other witnesses so coded in your allegations given, so that these names can be given on Saturday”.

Each letter concluded with two warnings or admonitions namely

1. “the failure to respond to the allegations could lead to the hospital dismissing each applicant after “dealing with the allegations on the information...to hand”

2. “the persons who have advised the hospital of the allegations...have been advised to notify the hospital at once and also the police...should any form of intimidation or harassment be carried out against (them)”

The interviews did not proceed on Saturday 13 January. Late on Friday 12 January each applicant was advised in writing that the interviews scheduled for Saturday 13 January had been deferred to 9.00 am on Monday 15 January “following discussions with the Health Services Union”.

Each letter concluded as follows:

“This deferral has been agreed to by the hospital on the understanding that you will attend for the interview, at which a representative of HSUA will be present, in order to assist you to address the allegations made against you in previous correspondence.”

THE PANEL OF INQUIRY HEARINGS
The applicants and their union representatives were all afforded a hearing before a Panel of Inquiry. The panel was chaired by Mrs Elizabeth Maffei, a community leader and a former councillor and shire president. The other members of the panel were Mrs Lowe (Director of Nursing), Mr Caulfield (Human Resources Manager), Mr Corboy (Principal Human Resources Consultant, Victorian Hospitals Industrial Association).

Winslow appeared before the Panel on 16 January, Davey on 17 January, Schroeder on 18 January, Twomey on 22 January and Spooner on 23 January. Union representatives, Mrs Lola Hiles and Ms Pauline Fegan were present throughout all hearings. Ms Fegan also appeared with Mr Clancy for the applicants at trial and gave evidence during the trial.

The panel hearings followed a set format. Mrs Maffei introduced herself and the other members of the panel and acknowledged the presence of the union representatives. She indicated that each allegation would be read and the applicant and her representatives would be given an opportunity to respond. She stressed that the allegations were serious and if found against the applicants could constitute “serious and wilful misconduct and could result in dismissal”. She stated that it was the duty of the panel “to obtain full information surrounding these allegations and report findings to the Chief Executive Officer for his action”.

In each hearing Mrs Lowe repeated that

• the allegations were serious

• it was important to provide each applicant with an opportunity to respond

• “should the allegations be proven it may result in termination of employment”

• the action to be taken “would be for the Chief Executive Officer to decide”

• “the role of this panel will only be to make recommendations on the basis of the allegations, and the responses to those allegations, and the evidence given to the inquiry”

Mrs Lowe also reminded each applicant that “this inquiry is ongoing and if the panel requires further information we reserve the right to call you back for further questioning”.

Each allegation was addressed in turn at each hearing. A detailed record of each hearing was made and a record was made available to the union representatives. The record of each hearing is quite detailed and specific (Davey Exhibit R8A 46 pages, Winslow Exhibit R4 13 pages, Schroeder Exhibit R11B 26 pages, Twomey Exhibit R13B 58 pages, Spooner Exhibit R15B 36 pages).

The panel made no finding against any of the applicants in respect of

• unauthorised breakfast breaks of 30 minutes

• stealing and consuming toast from the breakfast trays of residents

• unauthorised lunch breaks of up to one and a half hours

These matters were treated as industrial issues to be the subject of resolution by other means.

The panel made no findings against various applicants in respect of the following

• contravening sections 25(2)(b) and 26(2)(a) and (b) of the Occupational Health and Safety Act 1995 in respect of a lunch at the Grand Hotel (all applicants except Spooner) (treated as an industrial issue)

• requiring a resident to take a hospital blanket home and wash the blanket (Winslow, Schroeder)

• failing to properly wash or shower residents and performing only “bird baths” (Winslow, Davey, Twomey)

• failing to feed a male resident on 4 February 1995 (Winslow)

• extra time taken for lunch (Davey, Twomey, Winslow) (treated as an industrial issue)

• leaving work ten minutes early(Davey) (treated as an industrial issue)

• on or about 2 December 1995 failing to answer a buzzer and failing to take a male resident to the toilet (Winslow)

• leaving work ten minutes early (Davey) (treated as an industrial issue)

• breaching resident privacy and confidentiality on 4 September 1995 (Spooner)

CONVEYOR BELT SHOWERING
Although the Chief Executive Officer’s letter to Ms Spooner on 2 January 1996 referred to “conveyor belt showering” as an allegation which was “a breach of appropriate conduct and performance”, such an allegation was never made against her. However, this was a primary allegation against the applicants Winslow, Schroeder, Davey and Twomey.

In the allegations of 7 January conveyor belt showering is the first allegation against Davey and Twomey and the second allegation against Winslow and Schroeder. In each case the applicants were provided with the following extract from the statement of witness A (Ms Brown).

“I say that it is a regular occurrence that conveyor belt type showering is conducted by Karen Matheson, Tracy Winslow, Nola Byrne, Sharon Schroeder, Julie-Anne Davey, Sandra Twomey and Denise Standley, they team up and shower 10 to 12 residents between 8.00 am and 9.30 am. They then refuse to assist the nurses or attend to other residents unless they are on their own. They sit and congregate around the nurses station. The refusal to help other nurses generally means in lifting and showering other residents. I have noted that on occasions only bird baths are given and residents are not showered or properly washed. I have observed residents complain about this procedure and I have had complaints made to me about it by Mrs Hicks, Mrs Malcolm and Mrs Whitford.

These procedures have been carried out whilst Diane Lloyd has been on duty and with her knowledge. I am aware that this contravenes standards of practice for nurses.”

Immediately after the extract the allegation made was set out and is as follows:

“It is alleged by witness A that you along with Karen Matheson, Tracy Winslow, Sharon Schroeder, Julie Anne Davy, Sandra Twomey and Denise Standley, conspired and planned to carry out conveyor belt showering of residents over a regular period of 6 months, namely June 1995 to December 1995, and confirmed by witnesses “C” and “J”.

Such a practice would contravene:

(a)      General Standards of Nursing Practice No. H.2.

(b)      Commonwealth Outcome Standards for Nursing Homes, Standard 5.3

(c)Elderly Abuse - see Department of Health and Community Services publication “With Respect to Age” - 1995, - chapter 2 page 7.

(d)The Occupational Health and Safety Act, section 25-2(b).

(e)Your obligation to carrying out your duties in regard to your Position Description of S.E.N.

(f)The Nursing Division Human Resources S.E.N. - Role of - (Policy 5.S.I.)

(g)Equal Opportunity Act 1995, Section 8(1) and (2).”

The Panel of Inquiry had access to statements made by Ms Brown (witness A), Mr Gardner (witness C), Ms Nihill (witness E), Ms Warburton (witness D) and Ms Baker (witness J). Their statements were available to the Court and Gardner, Nihill and Baker were subpoenaed by the applicants and gave evidence at the trial.

Both the Panel of Inquiry and the Court heard evidence from Mr Gardner that he had reported the process of conveyor belt showering to the Charge Nurse, Ms Lloyd. Ms Lloyd was dismissed for misconduct. Her claim of unlawful termination of employment was dismissed in Lloyd and Australian Nursing Federation (Victorian Branch) v Mildura Base Hospital (unreported, IRCA, 6 March 1997), VI-1262 of 1996) Decision No. 89/97. The legal representatives in the Lloyd case and in these cases agreed at a callover on 2 September 1996 and again on 3 September 1996 that the claim of Lloyd and ANF should proceed before the claims of the applicants and HSUA.

Ms Nihill gave evidence of the applicants, except Spooner, preparing lists of residents for showers and “going off in teams”.

Ms Warburton’s statement refers to observing as many as three nurses “in a single shower” with two residents. She also claims to have observed the applicants (except Spooner) complete “seven showers between 8 and 9.30 am”.

Mr Clancy for the applicants made much of the physical impossibility of three nurses and two patients being “in a single shower” recess at the one time. The Court is inclined to the view that five people in one shower recess is unlikely and did not occur. However, the Court is also of the view that Ms Warburton was referring to three nurses combining to shower at least two residents and showering, drying and dressing residents in a manner in which more than one nurse worked with an individual resident in washing, drying and dressing and in circumstances in which such a resident was provided with minimal privacy. Even if a resident was showered, dried and dressed in the shower area alone, and not in the view of one or more other residents, such a practice, with two or more nurses involved with the resident, clearly breaches privacy and dignity and the Court agrees with the conclusions of the Panel of Inquiry that such a practice compromises standards of professional practice and amounts to abuse of the aged.

The practice whereby more than one resident is in the general shower area while a resident is showered, dried and dressed is another variant of an unacceptable practice referred to in these proceedings and during the investigations and at the Panel of Inquiry hearings as “conveyor belt showering”. If more than one resident is processed at the same time through the showering, drying and dressing procedures by a team of nurses, indeed by two or more nurses, this is a further variant of conveyor belt showering. Indeed, the presence of more than one resident in the shower area and the processing of more than one resident at the same time, and in view of another resident or residents, offends privacy and dignity to an even greater extent.

Both the Panel of Inquiry and the Court had access to additional and further evidence of the involvement of Winslow, Davey, Schroeder and Twomey in all variations of conveyor belt showering. The four applicants denied any involvement in conveyor belt showering. They denied any involvement during the investigations and at the Panel of Inquiry hearings and at the trial. However, the evidence of the applicants themselves at trial and their attitude and demeanour in the witness box, has led the Court to the conclusion that all of them were involved in the practice.

REFUSING TO HELP FELLOW WORKERS LIFT RESIDENTS

This was the second allegation against Davey and Twomey, the third allegation against Winslow and Schroeder and the fourth allegation against Spooner.

Ms Brown (witness A) an enrolled nurse, alleged in her statement that all the applicants had refused to help other nurses in lifting residents. Ms Tonkin (witness L) formerly a registered nurse at the hospital, made a similar allegation against Ms Twomey. She was called to give evidence and repeated her allegation.

Ms Baker (witness J), an enrolled nurse, made the same allegation against Spooner and repeated it in evidence at the trial.

All applicants denied that they ever refused to assist in lifting residents. The panel found that the allegation had substance in respect of Winslow, Schroeder and Twomey, that Davey’s denial lacked credibility and that Twomey was evasive. In respect of Spooner the panel indicated that there may be substance to the allegation and that there should be further investigation.

In respect of all the applicants, except Spooner, the panel suggested that the failure to assist breached the Occupational Health and Safety Act and Standards of Professional Practice.

EXCESSIVE NOISE
The fifth allegation against Winslow and Schroeder and the fourth allegation against Davey and Twomey was that they “engaged...in situations where (they) took part in creating excessive noise in the form of yelling and loud chattering”. No such allegation was made against Spooner.

In her statement, Enrolled Nurse Julie Browne (witness A) reported complaints to her from two female residents. The residents were identified. They complained of the noise as unsettling and upsetting. Ms Browne claimed to have reported the matter to the Charge Nurse (Lloyd).

One of the residents specifically referred to noise in a statement made on 21 January 1996. Attributed to her is the following “the swearing and noise was made in the ward generally, the nurses were real bright and their behaviour was loud and upsetting”.

This resident was blind and ninety-two years of age at the time the statement was made. However, the Court accepts evidence given by several witnesses that she was lucid and competent.

The other resident made and signed a statement on 1 January 1996. It was witnessed by her daughter and her son-in-law who held her power of attorney. This resident was seventy-two years of age and had been a nurse in the Second World War. Again, there is uncontradicted evidence that this resident was, at the time of the statement, lucid and competent. She does not directly refer to excessive noise. In a detailed five page statement she refers to a number of incidents which suggest the likelihood of excessive noise. She refers to Ms Spooner (Ceanita) abusing her and to “the one who has just returned from holidays, the tall thin one” as using “foul language all the time” and as “the one that always is swearing and using foul language”. The Court is satisfied from the evidence of Twomey herself and the evidence of several other witnesses that these are references to Twomey.

There are also references to excessive noise in the statements of relatives referred to by the respondent as statements R3, R4 and R5.

There is evidence, which the Court accepts, that the issue of excessive noise was raised at a ward meeting on 6 December 1995 and that the issue of excess noise had been brought to the attention of the Raechel Willson House staff including the applicants.

THE INCIDENT OF BEGGING FOR A TOWEL
The tenth allegation against Twomey and the eighth allegation against Winslow and Schroeder arises from a statement made by Enrolled Nurse Baker (witness J). The extract of statement was put to the three applicants in the allegations of 7 January as follows:

“I say that at a time 2 days after Mrs Carr had been admitted I observed Mrs Whitford had been showered by 3 nurses Tracy Winslow, Sandra Twomey and Sharon Schroeder, Mrs Whitford was quite upset at being showered by 3 nurses and questioned why was it necessary to hover around and deny her privacy. Mrs Whitford also requested a towel to dry her hair, Sandra Twomey said “What do you want?” Mrs Whitford replied “I want a towel, Sandra Twomey responded “what do you want?” Mrs Whitford replied “a towel”, Sandra Twomey then said “and what do you say?” Mrs Whitford “please”, upon which Mrs Whitford was handed a towel.”

The allegation as put on 7 January and as read by Mrs Lowe to each applicant at their respective panel hearings was as follows:

“It is alleged by witness “J” that on 2/11/95 you subjected Mrs Whitford to humiliation in that she had to beg for a towel to dry her hair. By your actions Mrs Whitford was harassed, intimidated and made to feel demeaned and belittled.

This contravenes:

(a)      Job Description - S.E.N.

(b)      Commonwealth Outcome Standards 4.1, 4.2, 5.1, 5.3

(c)Resident’s Rights - Annex 1 Agreement between Residents and Proprietors of approved Nursing Homes.

(d)Equal Opportunity Act 1995, section 8, section 50(a) and (b)

Further this constitutes serious and wilful misconduct in that it exposed Mildura Base Hospital to vicarious liability under section 102 of the Equal Opportunity Act 1995.”

On 28 January 1996, after the panel hearings of 16, 17, 18, 22 and 23 January, Mrs Lowe wrote to each applicant seeking “clarification” to “discrepancies” in answers given at the hearing. She wrote

“we have carefully considered and evaluated your responses. There appears to be discrepancies in some of your answers, and we seek urgent clarification. We do strongly advise you that you avail yourself of this opportunity to clear up these matters of concern, as the Panel will be required to make a decision based on the evidence before it.”

In her letter to Twomey Mrs Lowe summarised the allegation as follows,

“it is alleged by witness J that on or about 2 November 1995 you subjected Mrs Whitford to humiliation in that she had to beg for a towel to dry her hair.”

Mrs Lowe wrote as follows:

“By your action Mrs Whitford was harassed, intimidated, made to feel demeaned and belittled.

In evaluating your response the Panel can now advise you that this incident has been recalled and witnessed by other parties, it was recalled by the Charge Nurse, it was recalled by a resident, and was recalled by a visitor to the ward to have a conversation with one of the residents. Given this new information the Panel requires you to revisit this allegation and make an appropriate response.

The Panel in reviewing your answer wishes to advise that the statement or the preamble to the allegation should read “That I say at the time two days after Mrs Carr was admitted, I observed correction Mrs Carr not Mrs Whitford had been showered by three nurses, T Winslow, S Twomey and S Schroeder, correction Mrs Carr and not Mrs Whitford was quite upset about being showered by three nurses and questioned why it was necessary to hover around her and deny her privacy.”

Mrs Lowe raised the allegation in briefer form in her letters of 28 January to Winslow and Schroeder. For example, in her letter to Winslow she wrote:

“the Panel notes that you have no recollection of this incident. However, in evaluating your response, it has come to the Panel’s attention that indeed this matter was made known to the Associate Charge Nurse on duty, and to the Charge Nurse. Further, there is confirmation of this incident by a visitor to the ward who has a clear recollection of a conversation on this incident. Considering this new information, we require you to reconsider your answer and advise us if you wish to change this response at all.”

The applicants Twomey, Winslow and Schroeder did not respond to Mrs Lowe’s requests for further comment on the allegation of humiliating Mrs Whitford. They did not respond to the request for comment in respect of any of the various allegations outlined in Mrs Lowe’s letters of 28 January. They did not respond at all to the letters of 28 January. The applicants Davey and Spooner did not respond either to similar letters on 28 January from Mrs Lowe. However, the letters to Davey and Spooner of course did not raise this particular allegation.

THE ALLEGATION OF “THE TREATMENT”
This was the third allegation against Spooner, the ninth against Schroeder and the thirteenth allegation against Twomey. An extract from the statement of Enrolled Nurse Baker (witness J) contains the following assertion which was provided to Spooner, Schroeder and Twomey with the allegations of 7 January. It reads as follows:

“I say that Mrs Hicks has complained to me on numerous occasions about the “treatment” she had been given by Denise Standley, Sandra Twomey, Ceanita Spooner, Tracy Winslow and Sharon Schroeder. This “treatment” involved being left on the toilet for periods up to and in excess of half an hour, the way she is showered and shoved into a wheelchair, she (Mrs Hicks) feels she is being got back at and has constantly complained to me and is quite upset, distressed and crying a lot.”

The allegation made in writing against each of these applicants in the letters of 7 January and read to them at their respective panel hearings was as follows:

“It is alleged by witness “X” that you had given witness “X” the treatment” meaning leaving “X” on the toilet for periods of up to and in excess of 1/2 hour and that you shoved “X” into a wheelchair. These incidences occurred on many and frequent occasions and is witnessed by “J” and “U”.

This contravenes:

(a)      Job Description EN.

(b)      Commonwealth Outcome Standards 1.2, 2.3, 3.2, 4.3, 5.1, 5.2.

(c) Equal Opportunity Act 1995, Section 8.

The repeated nature of this allegation is such that it constitutes serious and wilful misconduct and may also be actionable at law under:

(a)      The Summary Offences Act section 23.

(b)      The Crimes Act section 16.

(c)       It may also be actionable under common law.”

The reference to witnesses “J” and “U” has been deleted from the copies of the allegations of 7 January tendered at trial in respect of Twomey (Exhibit R12A) and Spooner (Exhibit R14A). The reference to witness “U” is deleted from the copy of the allegations of 7 January against Schroeder and the assertion of “witnessed by J” has been amended to “confirmed by J” (Exhibit R10A).

Witness J, Enrolled Nurse Baker, gave evidence at the trial, having been called by the applicants. Ms Baker did not witness the alleged “treatment” but she gave evidence consistent with her statement that Mrs Hicks (witness X) had complained to her on numerous occasions about the “treatment” involving being left on the toilet for long periods and about the way in which she was showered and roughly shoved into a wheelchair.

The minutes of the panel hearings Exhibit R13A (Twomey), Exhibit R11B (Schroeder) and Exhibit R15B (Spooner) and the evidence of Mrs Lowe confirm that there was discussion at each panel hearing of the deletion of witness U and the fact that witness J (Baker) did not witness the “treatment” but received complaints about it. Indeed, the minutes confirm that Ms Fegan sought access to the statement of Mrs Hicks at each of the three panel hearings and that both Ms Fegan and Mrs Hiles commented on aspects of the statement.

It is quite clear from the evidence of Twomey, Schroeder and Spooner that, at the panel hearings, they all knew that the allegations were made by Mrs Hicks and that they all knew that Ms Baker did not witness the alleged “treatment” but had claimed to have received complaints about it from Mrs Hicks. The three applicants gave unimpressive and indirect evidence about the alleged incidents.

Twomey denied that she left Mrs Hicks in the toilet for excessive periods of time. She stated (T16, 10 June 1997)

“I didn’t think I had a problem with her. I got on quite well. We used to speak. She used to talk to me about her husband’s bowls and, yes, I got on quite well. No, I did not leave this lady on the toilet for excessive periods of time. Mrs Hicks did get very - well, I’ll say, anxious. She had this thing that she was scared - like she wanted to go to the toilet but once you put her on the toilet, well, then as soon as you put her onto the toilet she would buzz to come off again because she wanted you to actually stand there and do it, you know, and you could be just into the room that you could see her on the toilet, to make her bed, and she’d say, I’ve been sitting here for ages, whereas she knew you had only just placed her on the toilet. I think she was worried that perhaps you were going to leave her or perhaps that she was - I don’t know, I don’t really know what went through the woman’s mind but she - as I say, she was anxious when you left her there or when you put her on there.

You could put her on and you knew you’d only placed her on there and walked back to her room which would be from here across to that wall from where the toilet is, not even probably that distance, and she’d call out or buzz, “I’ve been on here for ages”. It would take a matter of seconds to walk that distance, so ages is not that amount of time.”

Twomey also denied that she had ever shoved Mrs Hicks into a wheelchair and in cross-examination denied that she had ever upset Mrs Hicks or “found her upset” (T42, 10 June 1997).

In the minutes of the panel hearing, Twomey is recorded (page 35, Exhibit R13A) as denying that she had, at any time, placed Mrs Hicks in a wheelchair or a shower chair or that Mrs Hicks used a wheelchair except (possibly) to go to the day room. The Court notes that this evidence is not consistent with the reported responses of Spooner in her panel hearing.

There is also a record of the following exchange with Mr Corboy.

“Richard asked, ‘have you ever left her on the toilet?’. Sandra replied ‘not that I remember, she is anxious and does not like being left on the toilet.’

Spooner, in evidence in chief (T74, 10 June 1997) claimed that she did not understand what the “treatment” was and did not understand what the panel meant when they referred to the “treatment”. She claimed that she could not remember being told at the panel hearing who witness X was and that the panel did not indicate that it was alleged that she had been involved in shoving “X” into a wheelchair.

Given the detailed documentary evidence of how the panel hearings were conducted, the evidence of Mrs Lowe and the minutes of the panel hearing involving Spooner (Exhibit R15B, pages 14 to 20) the Court does not accept that Spooner did not know what was meant by the term the “treatment”. Furthermore, it is quite obvious from the minutes of the hearing that witness “X” was identified as Mrs Hicks on numerous occasions and that Spooner responded to numerous questions knowing that she was responding in respect of Mrs Hicks. It is also obvious from the tenor of Spooner’s evidence at trial that she knew witness “X” was Mrs Hicks and knew it when she responded to the questions at the panel hearing.

There is a more specific allegation against Spooner involving Mrs Hicks allegedly left on the toilet on or about 15 September 1995. The allegation is incorporated as part of several allegations where are brought together in the first allegation against Spooner. That is a matter dealt with later but the Court observes that the earlier discussion of that incident at the panel hearing inevitably would have made Spooner aware that witness “X” was Mrs Hicks. It is also quite obvious from the minutes (Exhibit R15B) that both Ms Fegan and Mrs Hiles examined and discussed the statements of Mrs Hicks and Ms Brown with the panel in the presence of Spooner.

In evidence in chief, Schroeder also denied knowing that witness “X” was Mrs Hicks at the time of her panel hearing (T48, 10 June 1997). However, in cross-examination, (at T77) she conceded that at the time of the panel hearing she knew that witness “X” was Mrs Hicks.

Schroeder (at T77 and T78) denied that at the panel hearing she had said that Mrs Hicks “complains about trivial things like the buzzer”. Her evidence was as follows:

“I didn’t say that she complained about trivial things like the buzzer. I said she was a nervous person and I went on to say she complained about trivial means, meaning the foam under her feet. She liked a foam thing under her feet. She liked the tissues placed in a particular place. She liked the buzzer placed in her drawer next to her bed.”

OTHER ALLEGATIONS SIMILAR TO THE “TREATMENT” i.e. LEAVING RESIDENTS ON THE TOILET FOR EXCESSIVE PERIODS OR IGNORING REQUESTS TO BE TAKEN TO THE TOILET
The Panel found that Davey had ignored residents who had called for assistance to go to the toilet and that such residents had subsequently, on some occasions, become incontinent (allegation 18). The primary evidence was given by Mrs Jaensch (witness G) with corroboration by residents, Mrs Hicks (witness X) and Mrs Whitford (witness W). Mrs Jaensch worked in Environmental Services, primarily as a cleaner. She was called at trial by the applicants. She was a very impressive witness but her evidence favoured the respondent. Indeed, the Court observes that in the course of the trial the applicants called three relatives (Hanson, Russell and Condon) and six staff (Baker, Tonkin, Gardner, Allford, Nihill and Jaensch) and that these nine witnesses gave evidence which was unhelpful to the applicants and supportive of the respondent’s findings on a number of the allegations.

The Panel also found that Davey ignored requests from Mr Higgins and Mr Russell to take them to the toilet (allegations 15 and 17). In respect of Mr Higgins, the evidence came from Mrs Hanson. In the case of Mr Russell, the evidence came from his wife, Mrs Russell.

The Panel found that there was substance to the twelfth allegation against Schroeder and that the twenty-first allegation against Twomey was sustained. The allegation against both of them was that in August 1995 they had taken Mr Walters to the toilet at 11.30 am and that he remained there till 12.50 pm when he was eventually removed by Registered Nurse Cay Duck. The respondent alleged that Schroeder and Twomey had ignored two requests from Mrs Walters (witness S) to check on her husband.

At her panel hearing, Twomey recalled the incident and conceded that Mrs Walters twice asked for information on the whereabouts of her husband and on the first occasion was told he was in the toilet and on the second occasion Twomey told her again, after checking, that her husband was still in the toilet. Twomey conceded she did not take Mr Walters off the toilet and does not know who did.

Schroeder also had a clear recall of this incident at her panel hearing. She gave very similar evidence to the panel except she stated that “two of us (presumably herself and Twomey) placed Mr Walters in the ambi lift and placed him on the toilet. Mrs Walters approached me and I checked. He just commenced using his bowels. I went back to set up residents. Mrs Walters asked again. I checked, stating to him that his wife was here. He had indicated he still had not used his bowels. Lunch then arrived. I went back to check Mr Walters. He was not there and (was) sitting up ready for lunch. I do not know who moved Mr Walters.”

The Court observes that the versions of Twomey and Schroeder reported as given at their panel hearings in the minutes (Twomey, Exhibit R13B and Schroeder, Exhibit R11B) bear some hallmarks of an agreed and contrived version of events. Each applicant claimed to have personally checked Mr Walters on both occasions when Mrs Walters made her inquiries. Neither applicant states they checked together and it seems unlikely that both would have checked, and even more unlikely that neither would mention both checked if in fact that is what occurred.

At trial (T49, 10 June 1997) Schroeder confirmed the version given to the panel hearing except that she claimed that Mr Walters would not have been taken to the toilet till about 12 o’clock.
At trial, Twomey said the same thing (T19, 11 June 1997). In evidence in chief, she gave a less precise version. She did not refer to personally checking on Mr Walters but used the personal “we”.

“We were running late.”
“We showered him.”
“We popped him on the toilet.”
“We explained to her (Mrs Walters) that he was on the toilet.”

ALLEGATIONS SPECIFIC TO THE APPLICANT SPOONER
Nine allegations were made against Spooner. Four allegations (1, 2, 8 and 9) are only made against her. The other five allegations, the “treatment” (3), refusing lifts (4), unauthorised breakfast breaks (5), extended lunch breaks (6) and stealing toast (7) have already been dealt with earlier in this judgment.

Of the four allegations specific to Spooner, the second allegation is of no relevance because the Panel of Inquiry made no finding. The first, eighth and ninth allegation involved numerous incidents. The eighth and ninth allegations are similar in substance and can be taken together.

THE FIRST ALLEGATION AGAINST SPOONER
This allegation is that “it has been alleged by witness “A” and confirmed by “C”, “J”, “L”, “R”, “B”, “G”, “W” and “P” that you frequently engaged in assault and battery towards residents in your care”.

The allegation was put in this form in the allegations of 7 January (Exhibit 14A) and when read by Mrs Lowe at the panel hearing (Exhibit R15B). In the letter of 7 January 1996 the respondent informed the applicant that this behaviour contravenes:
(a)       Victorian Summary Offence Act, Section 23.
(b)       Victorian Crimes Act Section 16.
(c)       Could be actionable under Civil Law - Assault and Battery.
(e)       Commonwealth Outcome Standards 1.2, 2.5, 4.1, 4.2, 5.1.

(f)Health and Community Services Guide “With Respect to Age” type 6 and 7 Assault, page 42 and 43.

(g)Position Description SEN - section Primary Objectives, Clinical, Communication/Interpersonal Skills.

(h)       Mildura Base Hospital Nursing Division/Human Resource Policy - SEN - 5.S.1.

1. Equal Opportunity Act 1995, section 42(1)(b & c).

The letter of 7 January further asserts that the applicant’s “serious and wilful misconduct potentially placed the hospital at risk of contravening
(j) Equal Opportunity Act 1995, section 102(a) and (b)
(k)       Liable to Civil Action for damages.

At the panel hearing, the applicants and Mrs Hiles and Ms Fegan were advised that

• “the allegation (it was really a series of allegations) had also been alleged by witness “B” (witness “B” is the applicant Lynette Davey)

• confirming witnesses “C”, “G”, “W” and “P” had been withdrawn

Mrs Lowe read out each specific incident or allegation which forms part of the first “allegation”. It is not necessary to record each incident in detail. There were five incidents. They were read out in detail and can be summarised as follows:

1. throwing the resident Mr Higgins on to a bed

2. being nasty and rough towards the resident Mrs Whitford

3. being rough with the resident Mrs Russell and telling her that she “stank like a pole cat”

4. roughly handling the resident Mrs Menzies and telling her that she’d be “kicked out in two weeks”

5. leaving the resident Mrs Hicks on the toilet for an excessive period of time

At trial, the applicant was an unimpressive witness. As at the panel hearing, she did not deny the first and second incident and she did not deny the fourth and fifth incident. She denied the third incident. She asserted that she never intended to imply that Mrs Menzies would be involuntarily removed from Raechel Willson House (the fourth incident). In evidence, she repeated that she “did not say it that way” (i.e. did not say or imply that Mrs Menzies would be “kicked out” or removed against her will from Raechel Willson House. As to the fifth incident, while there was no specific denial at trial, at least on an analysis of the whole tenor of her evidence, the Court accepts that the applicant, in essence, denied that she left Mrs Hicks on the toilet for an excessive time. Her defence was a counterclaim that Mrs Hicks has no concept of time and, by implication, the applicant seems to assert that there is no evidence that she left Mrs Hicks on the toilet for an excessive time.

Statements of witnesses “A”, “B”, “D”, “J”, “L” and “R” (Brown, Davey, Warburton, Baker, Tonkin and Lattin), a diary note of the former Charge Nurse (Lloyd) of 26 October 1995, and the general evidence and demeanour of the applicant, have led the Court to the conclusion that, on a balance of probability, the applicant was involved in all five of these incidents. Furthermore, the Court finds that involvement in any one of the incidents amounted to misconduct such as constituted a valid reason for termination.

THE EIGHTH AND NINTH ALLEGATIONS AGAINST SPOONER
In summary the eighth allegation is that the applicant was extremely rude and personal in comments to relatives and residents. In summary the ninth allegation is that the applicant responded to residents in a belittling and derogatory manner. Examples given in the ninth allegation were alleged responses by the applicant

• to a resident inquiring about his watch that “it’s not hanging out of my arse”

• to a blind female resident “I’m sick of seeing of you eat food in front of me like a bloody pig”

Given the finding in respect of the first allegation it is not necessary to go further. Nevertheless, the Court observes that

• the eighth allegation was supported by statements from witnesses “C”, “O”, “Q” and “V” (Gardner, Malcolm, Scott and Russell)

• the ninth allegation was supported by statements from witnesses “B”, “C”, “G”, “P”, “Q” and “W” (Davey, Gardner, Jaensch, Condon, Scott and Whitford).

The earlier observation about the demeanour and evidence of the applicant applies to the eighth and ninth allegations. The Court is satisfied that, on a balance of probability, the applicant was involved in the several incidents incorporated in allegations 8 and 9 and that involvement in any one of those incidents amounted to misconduct such as constituted a valid reason for termination.

OTHER ALLEGATIONS AGAINST THE APPLICANTS WINSLOW, DAVEY, TWOMEY AND SCHROEDER
There is no need to deal in any detail with other allegations where the Panel of Inquiry made findings against the applicants Winslow, Davey, Twomey and Schroeder. Allegations 12 and 16 against Winslow are to the effect that Enrolled Nurse Baker and Associate Charge Nurse Gardner (both of whom gave evidence at the trial) were treated in an inappropriate manner. These are not matters of significance in determining whether there was a valid reason for the termination of Winslow.

The eighth allegation against Davey is of significance in that it relates to and confirms the likely involvement of the applicant and Winslow and Schroeder in conveyor belt showering. Registered Nurse Warburton (witness “D”) stated that in “approximately the first week in October 1995 (the incident was later fixed at 23 September 1995) she observed Davey, Winslow and Schroeder “in a single shower with two residents, Mrs Nancy Plush and Mrs Mavis Hicks”. There is supporting evidence from witnesses “C”, “E”, “O” and “W” (Gardner, Nihill, Malcolm and Whitford. In commenting on the general allegations of conveyor belt showering I have indicated that it is unlikely that the three nurses and the two residents were “in a single shower” but that it is quite feasible that the five persons were in the one shower/ bathroom area.

The eleventh allegation against Davey is of similar significance in that it too relates to and confirms the likely involvement of the applicant and Winslow, Twomey and Schroeder in conveyor belt showering. Enrolled Nurse Baker (witness “J”) alleges that she “had observed Davey, Winslow, Twomey and Schroeder together complete seven showers between 8.00 am and 9.30 am. The process is one whereby three nurses combine to wash a resident with one nurse drying the top, another drying the bottom and a third attending to toiletries, teeth etc.” Mrs Jaensch (witness “G”) gave supporting evidence in her statement and both Baker and Jaensch were called by the applicants at trial and neither provided evidence which was of assistance to the applicants. Curiously, the allegation was only made against Davey, although it seems just as applicable and relevant in relation to Winslow, Twomey and Schroeder.

In her letter of 28 January 1996 to Davey Mrs Lowe erroneously refers to this allegation as allegation ten but then points out that the Panel of Inquiry had received new information (it later emerged that the information came from Registered Nurse Carter). The information was to the effect that Davey had been observed as having finished her showers by 10.00 am and Mrs Lowe asked her to comment on this new information and provide an explanation as “to why an additional staff member would be saying this about your work practices”.

The twenty third allegation against Davey was a matter which the Panel of Inquiry considered sufficiently serious to recommend a police investigation. The allegation was made in a statement by the resident Mrs Whitford (witness “W”). She alleged that

“a short, solid girl with long dark hair who I know was Julieanne Davey pulled my nightie up over my head whilst placing me on the commode and she walked off leaving me like this. I say that I cannot dress myself. I tried to pull it down and cover myself but with my paralysed arm I couldn’t. Mark Cresp came and pulled my nightie down and fixed me up. He has also got me out of the toilet when I have been left in there.”

A reported response of the applicant at the Panel of Inquiry hearing (Exhibit R8B) is unsatisfactory as was the response the applicant made in evidence at trial. Exhibit R8B records the applicant as saying

“I cannot remember the incident happening at all. I have no answers to give you in this.  All I can say is that I have no answers ever doing this”.

In her evidence at trial the applicant said (T50, 6 June 1997)

“I couldn’t remember that happening at all. I mean, if I put someone on the commode I would never put a nightdress over their head. You pop them on the commode and you usually put a blanket, if it is cold, around their lap, then if they need you to stay with them you stay with them. If they like you to leave, you give them your buzzer and then you leave. I mean, you don’t put their night dress up over their head. ....I would never do that. You don’t pull dresses up over their head. So that’s all.”

In reporting to Mr Duckett the Panel of Inquiry stated (Exhibit R8A)

“The Panel note that the informant is a resident who is well orientated and able to recall events. The Panel also note that it considers SEN Davey has been untruthful in some responses to the Panel. The Panel considers that there may be substance to the allegation, warranting further investigation by the police.”

A problem with this allegation is that Mark Cresp, an Associate Charge Nurse, never signed a statement in relation to this matter or in relation to any of the allegations. Exhibit R1 contains a record of interview with Cresp on 23 January 1996. The record of interview is not signed and it is recorded as taking place between 12.30 and 1.30 pm. Glenis Beaumont, Assistant Director of Nursing (Human Resources) interviewed Mr Cresp in the presence of Ms Johns and Ms Clark. Throughout the interview Ms Beaumont is referred to as Glenis and Cresp is referred to as Mark. The following exchange is recorded on the second page of the record of interview:
Glenis replied “in the statement from Mrs Whitford, she was left on the commode chair with her nightie over the top of her head, and you lifted it off and straightened her up?”
Mark replied “I can’t recall that”.
Glenis replied “you would notice a difference over the nightie being just over her shoulders to prevent soiling and being tight over her head?”
Mark replied “no”.
Glenis asked “you just told the staff to get on with it?”
Mark replied “no, not like that. I would ask them why the night dress was up like that, Your customer and not good for customer focus”.

Mr Cresp did not give evidence at trial. The whole tenor of the record of interview suggested a person who was uncooperative in terms of the investigation undertaken by the respondent.

The Panel of Inquiry also found the sixteenth allegation against Davey proven. The allegation was that she had put deodorant, the property of some other unknown resident on Mr Walters who had an allergy. Davey’s response was that she didn’t know that Mr Walters was allergic. In essence she admitted that she had used deodorant on Mr Walters without confirming that the deodorant was his property and without any knowledge of the allergy.

Mrs Davey gave the following evidence (T43, 6 June 1997)

“I had put a deodorant - it says somebody else’s deodorant, which it wasn’t, it was just a spare deodorant, on Mr Walters because he didn’t have any deodorant in his toiletries when I’d showered him. So I sprayed some deodorant on him because he had bad body odour that day and when Mrs Walters came in she told me that he had an allergy to deodorant which I wasn’t aware of. And I looked in his notes and there was nothing in his notes to say that he was allergic. I put it in his notes that he was allergic to deodorant and the ward clerk made signs up for me on the computer, because I couldn’t use the computer. And we popped signs in the bathroom to say that Mr Walters was allergic to deodorant and apologised to Mrs Walters for using deodorant on Mr Walters and that was all really. I remember the incident because of what happened that day and what I had to do.”

While the Court considers that Davey displayed a somewhat cavalier attitude in the use of a “spare deodorant”, it is doubtful that her actions in this matter amounted to misconduct of a type which could constitute a valid reason for termination of employment.

The eighth and seventeenth allegations against Twomey were said to be examples of insubordination. At trial, Mr Clancy treated the eighth allegation (speaking disrespectfully to ACN Gardner) as one where there was no finding (T13, 11 June 1997).

There is some substance for Mr Clancy’s position. In the minutes of the panel hearing (page 28, Exhibit R13B) the allegation is stated to have been withdrawn. Mr Corboy seems to have suggested that the allegation still stood and Mrs Hiles asked the panel to “skip over it until the next break and then possibly revisit it”.  The allegation was not mentioned in Mrs Lowe’s letter to Twomey on 28 January but the panel reported to Mr Duckett (Exhibit R13A, page 8) that the allegation was unanswered and required further investigation. Mr Duckett did not refer to the allegation in his evidence and Mr Kaufman did not address the allegation in cross-examination.

The Court is not certain as to whether Mr Duckett took the allegation into account in determining that there was a valid reason for the termination of Twomey on the grounds of misconduct. In any event, even if the allegation could be sustained, and the Court is not satisfied that is so, it formed only one of many reasons on which the Chief Executive Officer formed his view that the applicant should be dismissed for misconduct.

The allegation of “derogatory language towards a superior” (allegation 17) related to a statement by Nurse Baker (witness J) that Twomey had told the Charge Nurse (Lloyd) to “go and get stuffed”.

At the panel hearing (pages 42 and 43, Exhibit R13B) Twomey appears to have admitted that she may have told Lloyd “to get stuffed” but she did not remember. She was asked to make a further response in relation to this matter in Mrs Lowe’s letter of 28 January but, of course, none of the applicants responded to the letters of 28 January.

In evidence (T18, 11 June 1997) Twomey said

“As I said before, I have not used derogative (sic) terms to anybody and I haven’t used them to my superior nurse”.

This is not consistent with the evidence of a number of witnesses and it is not consistent with the applicant’s own admissions at the panel hearing that she might have used the term to Mrs Lloyd and that she swore in the tea room and had once called Lloyd “an idiot”.

The Court is of the view that, using a test of balance of probability, the particular act of insubordination did occur but that this did not form a reasonable ground for the conclusion of the panel that there had been “repeated episodes of insubordination by SEN Twomey and that this (i.e. repeated episodes of insubordination) could constitute serious and wilful misconduct”. There may have been repeated episodes of insubordination and such repeated episodes of insubordination could constitute serious and wilful misconduct but the Court cannot see how the panel concluded that there were repeated episodes on the basis of the evidence and investigations which led to allegations 8 and 17.

ADDITIONAL ALLEGATION
On 28 January an additional allegation was made against the applicants Schroeder and Twomey. This was by way of a report of an incident witnessed by Mrs Jaensch and contained in a statement made by her on 27 January 1996 (i.e. in a statement made after Schroeder and Twomey appeared at their panel hearings on 18 and 22 January respectively).

In her letters of 28 January to Schroeder (Exhibit R10B) and Twomey (Exhibit R12B) Mrs Lowe wrote

“the panel have been alerted to the fact that there was an incidence (sic) on the 21 November 1995, when a patient, Mrs McCarthy was faecally incontinent, at that time you were approached to assist with her as the registered nurse assigned to her was busy. We believe that you declined to assist and the R.N. had to leave her pill round and attend to Mrs McCarthy. Given this new information, we request that you revisit this allegation combined with your answer that if a buzzer went off you would answer it.”

The context of the written allegation against Schroeder is that it follows, in the letter of 28 January, immediately after a repetition of allegation 13. Schroeder had been asked to comment further on allegations 1, 2, 5, 8, 12 and 13 and also on this additional allegation. In other words, she was asked to comment further on 28 January, after her hearing on 18 January, on 6 of 14 allegations put to her on 18 January and on an additional allegation. She was being asked to comment further on seven allegations.

In her case, but not in the case of Twomey, the additional allegation was put immediately after further comment had been requested on the thirteenth allegation. Allegation 13 was to the effect that Schroeder had been observed on or about 12 December 1995 sitting behind a nurses desk in Raechel Willson House, was not involved in hospital work or documentation at the time, and had made no attempt to assist or answer the call of a male resident, Mr Russell, who, it is asserted, “had buzzed to be taken off the toilet”.

In the letter of 28 January Mrs Lowe appears to be asking Mrs Schroeder “to evaluate her answer” to allegation 13 in the light of the additional allegation which was said to be a direct approach by a female resident for assistance when that resident was in a state of faecal incontinence. Ms Schroeder was asked to “revisit this allegation combined with your answer that if a buzzer went off you would answer it”. It is not clear whether “this allegation”, which Schroeder is asked to revisit, is allegation 13 or the additional allegation. However, it is clear that she is being asked to comment further on allegation 13 and on the additional allegation involving Mrs McCarthy.

The words “combined with your answer that if a buzzer went off you would answer it” also appear at the end of the additional allegation put in writing on 28 January to Ms Twomey. In the case of Twomey, the additional allegation is not linked to a preceding allegation of failing to assist a resident and failing to answer a buzzer. In Twomey’s case the additional allegation also comes at the end of the letter of 28 January in which the applicant had been asked to comment further on allegations 1, 2, 4, 7, 9, 10, 11, 13, 14, 16, 19, 21, 23 and 28 and on the additional allegation. In other words Ms Twomey was being asked to comment further on 16 allegations (15 allegations which had been put as early as the 2 January and specifically on the 7 January and the additional allegation). It is doubtful that the words “combined with your answer that if a buzzer went off you would answer it” are relevant to the additional allegation as put to Twomey. There are other allegations which were put to the applicant and which amounted to failing to assist patients and/or answer buzzers but, unless Twomey had specifically indicated in her panel hearing that “if a buzzer went off she would answer it”, the additional words seem to be of questionable relevance in respect of the additional allegation. Be that as it may, it is clear with Twomey, as with Schroeder, that she was being asked to comment on the additional allegation. The two applicants did not comment on the allegation. Indeed none of the five applicants commented further on any of the allegations put to them in Mrs Lowe’s letters of 28 January.

Schroeder was cross-examined about this incident (T91 to 93, 10 June 1997). The following extract from the statement of Mrs Jaensch was put to her:

“I say that on 21 November 1995 when the breakfast trolley arrived Mrs McCarthy from room E walked towards me with faeces in her hands. I went over to Sharon Schroeder and Sandra Twomey and said, “Could someone come over here, Mrs McCarthy has poohed all over the place?” Sharon Schroeder replied, “It is not our job, it is the registered nurses.” There was a lot of noise and laughter. Registered nurse Bev Giles left the pill round and showered her.”

The applicant indicated that she replied to the additional allegation in the letter of 28 January “only in my general response that I didn’t think I could add anything further”. The applicant agreed that while she knew nothing whatsoever about the additional allegation she did not say to the hospital that she knew nothing whatsoever about the allegation. She said in evidence “I responded to the union, discussed it with the union, and they were responding on my behalf that I didn’t have anything further to add”. The applicant conceded in her evidence in cross-examination that as at 28 January the hospital had an allegation made by Wanda Jaensch and no denial from her. She was asked by counsel for the respondent whether she told the union that she knew nothing whatsoever about the allegation? The applicant replied “I think I did, yes”.

Later, when pressed she replied “I’m sorry, look, it was so long ago and we had a lot to deal with, I can’t be one hundred percent sure if I did”.

Mrs Jaensch  confirmed her observations in evidence at trial. As indicated earlier, she was a firm and impressive witness. Ms Fegan cross-examined Mrs Jaensch but the witness was never challenged in respect of her evidence on this incident.

The statement from Mrs Jaensch was also put to Ms Twomey in cross-examination (T58 and T59, 11 June 1997). The applicant did not recall the incident and indicated that she did not know if Wanda Jaensch was wrong. She responded:

“I don’t know. Well I do not know the incident. I don’t know who she spoke to, if she might have spoken to someone else and got the names wrong. I don’t know if there was an actual incident, or whether she’s made a mistake. I don’t know what happened in the incident. I don’t know this incident”.

The applicant described Mrs Jaensch as “a good friend of mine, actually”. She conceded that Mrs Jaensch would have no reason “to make this sort of thing up”.

Counsel for the respondent put the following question:

“If what she said is right, you behaved in a most unprofessional and unethical manner, did you not, if that is right?”

The applicant replied:

“If that is right...of which I wouldn’t have done.”

The applicant also conceded that because she did not reply to the letter of 28 January “the hospital only had Wanda Jaensch’s statement to go on”.

THE EVIDENCE OF THE DIRECTOR OF NURSING
Mrs Lowe gave detailed evidence in chief and was subject to several days of cross-examination. In all she was in the witness box for more than six full sitting days. Her evidence covered most aspects of the actions taken by the respondent to investigate and act on the complaints made against the conduct of a charge nurse and nine enrolled nurses working in Raechel Willson House. Her evidence, inter alia, dealt with

• the duties of registered and enrolled nurses, associate charge nurses and the charge nurse in Raechel Willson House

• the physical layout of Raechel Willson House

• standards of nursing practice

• Commonwealth Outcome Standards for Nursing Homes

• the concept of “elderly abuse” or “abuse of the aged”

• the respondent’s obligations under Occupational Health and Safety and Equal Opportunity legislation

• the respondent’s nursing division human resources policies

• hospital practices in patient records and incident reporting

• the complaints brought forward by Mrs Hanson

• the investigation of the complaints

• negotiations and discussions between the respondent and the union and the Victorian Hospitals Industrial Association

• briefing the Chief Executive Officer

• the collection and collation of over 30 statements from staff, residents and relatives

• the checking of rosters and hospital and patient records and the correlation of evidence

• the preparation of allegations against each applicant and the provision of the allegations to each applicant

• the failure of the applicants to attend, initially, to respond to the allegations before the Panels of Inquiry established by the Chief Executive Officer

• the preparation and provision to each applicant of letters dated 21 December 1995, 2 January 1996, 7 January 1996, 10 January 1996, 11 January 1996, 12 January 1996, 28 January 1996 and 3 February 1996

• the conduct of five separate, individual panel of inquiry hearings each of which involved an applicant and the union representatives, Mrs Hiles and Ms Fegan

• the preparation of minutes of each panel hearing

• the deliberations of each panel

• the findings of each panel and the report to the Chief Executive Officer in respect of each applicant

The Court found Mrs Lowe a calm, patient, thorough and truthful witness with an impressive recall of complex and detailed investigations and documentation which had led to 87 allegations against the applicants.

It is not necessary to go to specific parts of her evidence, suffice it to say that she provided the bulk of the evidence led by the respondent. Indeed, except for the important evidence of the Chief Executive Officer, dealt with below, the rest of the respondent’s evidence came through Mrs Lowe.

THE EVIDENCE OF THE CHIEF EXECUTIVE OFFICER
Mr Sid Duckett, the Chief Executive Officer of the Mildura Base Hospital, acting on behalf of the respondent, terminated the employment of the five applicants. His evidence is crucial in determining whether the respondent terminated the employment of any or all of the applicants for valid reason on the grounds of misconduct.

Mr Duckett gave detailed evidence and was in the witness box for all of the fourteenth and second last day of the trial. In evidence in chief he stated that he

• became aware of a letter from Mrs Hanson on 11 December 1995

• read the letter and was extremely concerned at the allegations

• received a full briefing on 14 December

• authorised investigations which led to statements taken from staff, relatives and residents

• engaged the Victorian Hospitals Industrial Association to assist and advise

• stood down eight nurses on 21 December

• sent each of the nurses a letter in almost identical terms

• stood down another two nurses on 2 January

• appointed an independent person to chair Panels of Inquiry

• expected the members of each Panel of Inquiry to investigate the allegations and look at the individual allegations for each individual person and make a finding on those allegations and refer the finding to him so that he could consider what action he should take against each individual

Mr Duckett stated that he was given copies of statements made during the investigation within a day or two of each statement being made. After the panel hearings were concluded he was given a folder for each applicant. In the folder was a transcript of the panel proceedings, copies of the correspondence from and to the individual applicant and a copy of a covering letter appended to the findings of the panel. He also had access to a document which contained all the statements in the course of the investigations. Copies of all these statements were tendered at trial as Exhibit R1. Mr Duckett also had access to the following documents

• General Standards of Nursing Practice

• Commonwealth Outcome Standards for Nursing Homes

• Chapter 2 of a 1995 Department of Health and Community Services publication “With Respect to Age”- Chapter 2 is entitled “A Working Definition of Elder Abuse and Neglect”

• a position description for State Enrolled Nurse

• a document entitled “Role of State Enrolled Nurse - Nursing Division/Human Resources - Policy 5.S.1. (February 1993)

• a document entitled “Residents Rights - Annex 1 Agreement Between Residents and Proprietors of Approved Nursing Homes

Mr Duckett gave the following evidence (at T8, 5 August 1997)

“I took each individual case. I looked at the panel of findings and then, individually and separately went back and checked to the individual statements and the various evidence produced to...verify in my own mind that I would agree with the findings of the panel. I had a number of discussions with Mrs Lowe and Richard Corboy and Bruce Caulfield. Generally the discussions would have been to do with some clarification or further interpretation of what they were saying.

I made a decision to terminate six people, Dianne Lloyd and the five applicants in this case. In respect of four other nurses who had been suspended, my decision was that they not be terminated. There was an agreement with the union that they would be redeployed back in the hospital in Fisher House, which is one of our other nursing homes and the nursing home out at Red Cliffs, and that they would undergo additional training. In my own mind I didn’t believe that there was enough corroborating evidence to warrant dismissal. I believe that there were serious concerns in relation to professional conduct but one of the key issues for me in reviewing this information was corroboration of evidence.

Of the five applicants who were dismissed, I believed that there were a significant number of the allegations made against them corroborated by two or more witnesses.”

In examination in chief counsel for the respondent took Mr Duckett through the documents the Chief Executive Officer had before him when he was considering what action he should take in relation to the applicant Winslow. In particular, while in the witness box, Mr Duckett was given access to

• a copy of the letter of termination to Mrs Winslow (part of Exhibit R3)

• a copy of the letter of 28 January 1996 to Mrs Winslow from Mrs Lowe in which Mrs Lowe, on behalf of the Panel of Inquiry, requested “urgent clarification...and requested further responses in relation to comments made about allegations 1, 2, 7, 8, 10, 12, 13, 14 and 17 (part of Exhibit R3)

• a copy of the Panel Inquiry Report and a covering letter of 31 January 1996 from the panel to Mr Duckett (Exhibit R4)

The following extract is taken direct from the transcript (T10 to T13). Those parts of the extract which are not verbatim are statements in response to questions in examination in chief where the witness has agreed or disagreed with a proposition put to him. To maintain the narrative of the evidence, such propositions and responses are combined to provide the context and effect of the evidence.

“I read the findings of the panel and then I went back separately and individually to each allegation. I then referred to the transcript of the panel finding. Then I considered that in the light of the allegations that had been made. (Mr Duckett had earlier given evidence that in his folder for each applicant he had a list of the allegations made against that applicant). I then referred back to the statements of the witnesses and confirmed in my own mind as to whether or not I agreed with the panel findings.

Speaking generally, for all the applicants, I generally found the findings to be reasonable. If anything they probably erred on the cautious side. It was quite evident when you go through and look at the panel findings, as against the allegations, there were a number of witness statements withdrawn and not considered because there was some doubt - not necessarily as to accuracy, but doubt in relation to how they (the statements) were put together.

In a nutshell, the reason for the termination of Mrs Winslow’s employment was serious and wilful misconduct. There is no doubt in my mind that (she) had failed to maintain and implement appropriate standards of professional practice.

In respect of allegation 2 (Winslow - conveyor belt showering) the panel set out a time frame for hygiene care. From what the panel had said in relation to conveyor belt showering, I drew from that that the panel were convinced that the applicant had participated in conveyor belt showering and I concluded (concurred?) with the findings. I believed that the time available and the number of people that were required to be showered and personal ablutions attended to by the applicant, considering that in the light of the advice that I had got as to what time will be required to undertake that process, that it was impossible to do what she did in the time that she did. I satisfied myself that the panel was correct in finding that the allegation was well corroborated. I went back to each of the statements in that blue folder (Exhibit R1). I had the conclusion that she (Winslow) wasn’t open and frank in her responses.

I went through exactly the same process (when) looking at the allegation of refusing to help fellow workers in lifting residents (allegation 3 Winslow). I looked at the transcript of the panel and then from that looking at each of the individual statements. I concurred with the panel’s conclusion that that allegation had substance. I took that allegation and the previous one of conveyor belt showering into account in making my decision to terminate Mrs Winslow’s employment.

My view was that the incident alleged by Vicki Warburton in allegation 7 (3 staff in a “single shower” with 2 residents) did take place and the applicant was involved in conveyor belt showering.”

At T13 Counsel for the respondent took Mr Duckett to allegation 9 against Winslow. This was another finding by the panel under the heading of  Failing to Maintain and Implement Standards. It is the allegation that Mrs Hicks had been given the “treatment” by leaving her on the toilet for extended periods. The panel expressed the view that the applicant was being  untruthful in some of her responses. Mr Duckett indicated that he concurred with the panel findings.

Mr Duckett also indicated that he concurred with the finding of the panel in respect of the tenth allegation, the removal of a resident’s birthday cake. He indicated that he considered the substance of the allegation fell under the heading of Failure to Maintain and Implement Appropriate Standards of Professional Practice. His evidence continued as follows (T14)

“A birthday and a birthday cake to a resident is a fairly significant highlight in their day. To have someone come in and take over their property, and deprive them of the right to either consume the cake themselves, or for them to give it to other people, is interference with their rights as a resident of the nursing home. We have people here who are very seriously compromised because of their physical, and in some cases, mental condition. We have probably a higher duty of care than we would, to say, a normal person.”

Counsel for the respondent then took Mr Duckett to allegation 12 in which it is alleged that Winslow “set up” Enrolled Nurse Baker who had asked Winslow to look after her residents in the day room while she went off to lunch. When Baker returned from lunch she was chastised by a superior officer for having left her patients unattended. Mr Duckett indicated that he had concluded that the incident had occurred and that Winslow’s behaviour was unprofessional and that there was a failure to implement appropriate standards of professional practice.

Mr Duckett was then taken through allegations against Winslow which were categorised as “aged abuse”. Mr Duckett agreed that a more accurate description would be “abuse of aged residents”. He described Chapter 2 of the Department of Health and Community Services 1995 Publication “With Respect to Age” as a

“Commonwealth Document setting out quite clearly what the standard is and providing a clear interpretation of what constitutes elder abuse”
.

He indicated that, in deciding whether or not Mrs Winslow had engaged in “aged abuse”, he had taken account of the standard definition which reads

“the most common approach is to define elder abuse as neglect or harm to an older person resulting in physical, psychological, sexual or material (financial) injury caused by the behaviour of a person with whom the older person has a relationship implying trust.”

At T16 Mr Duckett gave the following evidence

“Conveyor belt showering undoubtedly does deny the right of privacy and dignity and some of these people have objected significantly to that. I believe it constitutes “aged abuse”, particularly from the psychological point of view. I agreed with the panel finding that the allegation of excessive noise (Winslow allegation 5) had substance and the noise had impinged on the rights of the residents. They had objected to the excessive noise. It is primarily their home and their environment. Our duty is to provide an environment that is as conducive as possible to what they wish and anything that our staff would do to deny them that right would constitute abuse.”

Mr Duckett was then taken to the eighth allegation against Winslow. This is the allegation that Mrs Whitford had been made to beg for a towel to dry her hair. The allegation was that Mrs Twomey in the presence of Winslow and Schroeder refused to give Mrs Whitford a towel until she had said “please”. At T17 he said

“My conclusion was that that allegation had substance and constituted abuse. Demanding people respond in a certain way is not on from our point of view.”

The witness also expressed the view that the ninth allegation against Winslow (giving Mrs Hicks the “treatment”) constituted abuse of the aged and that the tenth allegation (the removal of the birthday cake) also constituted abuse of the aged. He stated at T17

“It denies them their property rights. The individual owns the birthday cake and has the right to do what they will with it and the fact that they were denied that is aged abuse or elderly abuse.”

Mr Duckett’s evidence continued as follows (T18-T21).

“Mrs Whitford was being harassed by being made to beg for the towel. Mrs Hicks was being harassed by being given the “treatment”. Baker was being harassed when set up (allegation 12). In my view those three incidents constitute harassment because they have created anxiety with all those three and caused them to suffer as a result of the actions of the applicant.

The next matter which constituted serious and wilful misconduct was Winslow’s failure to report and/or appropriately document the incident of Mrs Whitford begging for the towel. I believe that any member of staff who is aware of an incident that causes distress to a patient has an obligation to make some note that the patient was distressed.

Giving Mrs Hicks the “treatment” (allegation 9) is the same situation. Any incident that occurs should be documented if you are aware of it.

Refusing to help fellow workers in lifting residents (allegation 3) is an occupational health and safety breach. Each individual is required under the Act to work in such a way that they will not jeopardise the health of another worker. Failing to assist in a lift, which is a well known practice in nursing homes, is likely to cause injuries to workers. A failure to assist when asked would constitute a breach of occupational health and safety requirements.

The view I drew from the fact that Winslow did not avail herself of the opportunity to respond to the letter of 28 January was the same as the panel. It demonstrated a lack of candour and veracity in relation to the dealings with the panel. In actual fact, it hindered the panel in trying to reach its findings. I believe it was a deliberate attempt to hinder the proceedings. I took the information in the letter of 28 January into account when considering allegations 2, 7, 8, 10 and 12. I performed the same sort of checking and corroboration process. I took account of new information in the letter of 28 January. I checked back on the statements that had been made.

I came to the conclusion that Mrs Winslow had been guilty of serious and wilful misconduct. It was my decision to terminate her employment.

A similar process was adopted in relation to each of the applicants. There were not material differences in the way I approached my deliberations in respect of any of the applicants.”

Mr Duckett then gave evidence in relation to Davey. He had before him in the witness box her letter of termination (Exhibit R7), the panel report (Exhibit R8A) and the letter of 28 January 1996 from Mrs Lowe to Ms Davey (Exhibit R7B). Mr Kaufman put a number of propositions to the witness. The witness agreed that he had found that Davey had engaged in serious and wilful misconduct and that he particularised five reasons for that conclusion and that they were the same reasons as with Mrs Winslow. He agreed that the panel report was similar in format to the panel report in relation to Winslow. He agreed that he went through the same exercise with Davey as he did with Winslow, going to each allegation that the panel had found either proven or having substance. He indicated that he gave consideration to each allegation that the panel found had substance and he considered whether each allegation fell within the category under which it was listed. He agreed that allegation 1 (conveyor belt showering) fell under the heading of Failure to Maintain and Implement Appropriate Standards of Professional Practice. He agreed that he went through the same exercise with each allegation as with Winslow to see whether each allegation fitted under the category allocated to it by the panel. He agreed that he took into account additional information outlined in the letter of 28 January in which the panel had sought further explanation. He stated that he drew a similar conclusion in relation to Davey’s failure to respond to the letter of 28 January as he had with Winslow.

Mr Duckett then gave evidence in relation to the applicant Schroeder. He had before him in the witness box the panel report (Exhibit R11A), copy of the letter of termination (Exhibit R10), and a copy of the letter of 28 January requesting further information (Exhibit R10B). He indicated that in considering whether or not Mrs Schroeder’s employment should be terminated he went through the same process.

Mr Kaufman took the witness to the letter of 28 January and to the last paragraph of that letter which reads as follows:

“Further, in evaluating your answer, the panel has been alerted to the fact that there was an incident on 21 November 1995 when a patient, Mrs McCarthy was faecally incontinent. At that time, you were approached to assist with her as the registered nurse assigned to her was busy. We believe that you declined to assist and the registered nurse had to leave her pill round and attend to Mrs McCarthy. Given this new information we request that you revisit this allegation combined with your answer that if a buzzer went off it you would answer it.”

Mr Duckett agreed that he took that additional allegation into account in coming to his decision to terminate Mrs Schroeder’s employment. He also agreed that he took this matter into account in relation to the applicant Twomey and that he came to the same conclusion in relation to both applicants namely that they had engaged in the conduct described above, conduct which had been alleged by Mrs Wanda Jaensch in a statement dated 27 January 1996. A copy of the statement was provided to Mr Duckett in the witness box and he indicated that he had read that statement before he terminated the employment of Schroeder and Twomey. He indicated that, in his view, the conduct was a failure to implement appropriate standards of professional practice and constituted abuse of the aged.

Counsel for the respondent then took Mr Duckett through the allegations against Twomey. Again the witness had before him the panel findings and report (Exhibit R13A), the letter of 28 January seeking further information (Exhibit R12B) and the letter of termination (Exhibit R12). The witness indicated that he used the same process in considering the termination of Twomey. He indicated that he had agreed with the panel in relation to the allegations of insubordination (allegations 8 and 17). These matters were dealt with earlier in the judgment and do not require further comment.

In respect of allegation 11 (swearing and using unseemly and vulgar language) the witness expressed the belief that Twomey did use foul language. He gave the following evidence (T26)

“I viewed it fairly seriously. I don’t think it is appropriate, particularly in a residential area. I recall one of the residents, a Mrs Malcolm I think it was. I think the worst word she had ever said in her life was damn, or something like that. She really did object to that sort of thing in her presence. She was extremely upset by it.”

In respect of the applicant Spooner, Mr Duckett was taken through a similar process in his evidence in chief. He had before him in the witness box the letter of termination (Exhibit R14) the panel report (Exhibit R15A) and the letter from Mrs Lowe on behalf of the panel dated 28 January (Exhibit R14B). His evidence included the following (T26)

“as with all the previous applicants I went through the findings, looking at the transcripts of the panel hearings and then referring back to the individual statements. In Ceanita Spooner’s case also, well all of them, it was a matter of course that one takes out their personnel files and goes through those as well. I discovered in Ceanita Spooner’s personnel file incident reports relating to what I would (consider) constitutes patient abuse had occurred previously, some years ago. I looked at those before I made the decision. I took into account a May 1994 incident. I took into account all the incidents referred to in the documents. Some were fairly old but to me they constitute a pattern of behaviour. I believe all of them were serious matters. I was aware of an allegation (drinking alcohol on duty) but it wasn’t, from my point of view, an incident that would affect my final decision one way or the other. I decided to terminate her employment primarily on her professional standards, the failure to maintain those, aged abuse. They would have been the two key issues.”

Mr Duckett concluded his evidence in chief with observations that there had been an improvement in the management of Raechel Willson House and in the atmosphere and the morale since the time that the applicants had had their employment terminated. He indicated that the unit was “better maintained...from a housekeeping perspective”. A letter, Exhibit R28, was tendered through the Chief Executive Officer. It was a letter dated 29 August 1996 with fifteen signatures appended. The letter was addressed to the Chief Executive Officer and read as follows:

“We, the undersigned wish to inform management in writing that as relatives of residents of Raechel Willson House we strongly object to any moves with which the dismissed nurses be returned to duties at the above unit.

Our reasons being - residents are much happier and contented and care has improved greatly. We also fear retribution and harassment against our loved ones, ourselves, and to some staff members.”

PROCEDURAL FAIRNESS - SECTION 170DC
The applicants were given many opportunities to defend themselves against the allegations made. As indicated earlier, there was no breach of section 170DC in respect of any applicant. The applicants were made aware of the particular matters that had put their jobs at risk. Section 170DC does not require any particular formality. These employees were treated fairly. They were made aware of the nature of the employer’s concerns about their conduct. They had a full opportunity to respond to those concerns: Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7 and recent endorsement of Gibson by the Full Court of the Federal Court in D’Antuono v Minister for Health (unreported, 5 December 1997, WAG 100 of 1997, Judgment No 1370/97).

VALID REASON SECTION 170DE(1)
The applicants assert that

• the reasons for their respective terminations of employment were not valid and were not sound, defensible and well founded: Selvachandran v Peteron Plastics (1995) 62 IR 371

• there is no evidence that Winslow, Schroeder, Davey and Twomey (and Matheson, Byrne and Standley) “conspired and planned to carry out conveyor belt showering”

• it is not possible to have three nurses and two residents “in a single shower”

• the “teaming up” of nurses in lifting and dressing and within the “shower areas” occurred and was professionally consistent and proper

• there is inadequate corroborating evidence to sustain any individual allegation of misconduct against any one of the applicants.

• the respondent failed to take account the previous good records of the applicants

• any act of misconduct by any applicant which might be held to have occurred, could not constitute misconduct sufficiently serious as to provide a valid reason for termination of employment

The respondent refutes all these assertions and submits that

• one act of serious misconduct constituted a valid reason for termination of employment and many acts of misconduct were alleged and sustained against each applicant

• the reasons for termination were indisputably sound, defensible and well founded in the case of each applicant

• the misconduct associated with conveyor belt showering was the unjustified interference with privacy and dignity

• two and sometimes more of the four applicants, involved in conveyor belt showering, agreed to conduct, and combined to conduct, showers and other associated acts of hygiene and dressing, using an inappropriate process which breached nursing standards and amounted to abuse of the aged

• there was ample corroboration of the acts of misconduct on which the Chief Executive Officer based his decision to terminate each of the applicants

• the Chief Executive Officer made individual and separate decisions to terminate the employment of each applicant and separately considered the allegations made against each applicant and separately considered the five Panel of Inquiry reports made individually in relation to the separate and distinct hearings afforded to each applicant before a Panel of Inquiry

• the Chief Executive Officer decided not to terminate the employment of four other enrolled nurses against whom allegations were made and who were the subject of separate hearings and Panel of Inquiry reports because he was not satisfied with the nature and state of corroborating evidence

• the Chief Executive Officer did take account of the previous records of the applicants but considered that the misconduct found against each applicant was sufficiently serious as to warrant termination of employment

FINDINGS
On the basis of the evidence in a hearing of 15 days involving detailed investigations and 87 separate allegations of misconduct, I find that the respondent has discharged the onus placed upon it to demonstrate that there were valid reasons for the termination of each applicant.

I find that, using a test of balance of probability, each applicant was involved in numerous acts of misconduct.

I find that in the case of each applicant many of the acts of misconduct constituted a valid reason for termination as separate and individual acts, and that the acts of misconduct established against each applicant, in combination, indisputably constituted valid reasons for the termination of each applicant.

I find that, using a test of balance of probability, the following allegations against the following applicants have been established, and that the involvement of each applicant in each allegation so established, constitutes, in respect of each applicant, valid reason for the termination of each applicant.

APPLICANT	ALLEGATION	MISCONDUCT
Winslow Winslow Winslow Winslow Winslow Winslow Winslow Davey Davey Davey Davey Davey Davey Davey Davey Davey Davey Davey Davey Schroeder Schroeder Schroeder Schroeder Schroeder Schroeder Schroeder Schroeder Twomey Twomey Twomey Twomey Twomey Twomey Twomey Twomey Twomey Twomey Twomey Spooner Spooner Spooner Spooner Spooner	2 3 5 7 8 9 10 2 4 5 8 9 10 11 15 17 18 19 23 2 3 5 8 9 12 13 additional 1 2 4 6 7 8 11 13 14 21 additional 1 3 4 8 9	Conveyor belt showering Refusing to help lift residents Excessive noise Conveyor belt showering The towel incident - failing to report abuse of the aged. The “treatment” incident - abuse of the aged Removal of birthday cake - inadequate standards of practice Refusing to help lift residents Excessive noise Refusing request to take to toilet Conveyor belt showering Ignore request for pan Fail to wash resident Conveyor belt showering Ignore request to take to toilet Ignore request to take to toilet Ignore resident calling for help Insubordination Inappropriate treatment of a resident Conveyor belt showering Refuse help to lift residents Excessive noise The towel incident- failing to report abuse of the aged. The “treatment” incident - abuse of the aged Leaving resident on toilet Leaving resident on toilet Refusing to assist resident - abuse of the aged Conveyor belt showering Refuse help lift residents Excessive noise Speaking in derogatory terms to residents and staff Speaking in derogatory and threatening terms to a resident The towel incident- failing to report abuse of the aged. Swearing and using vulgar language The “treatment” incident - abuse of the aged Removing birthday cake - inadequate standards of practice Leaving resident on a toilet Failing to assist a resident - abuse of the aged Four incidents of assault and one incident of leaving a resident on a toilet The “treatment” incident - abuse of the aged Refuse to help in lifting residents Rude and personal comments to residents and relatives Belittling responses to residents

Given the findings I propose to order that the applications be dismissed.

These cases can be distinguished from the claim of unlawful termination of employment made by the Charge Nurse responsible for the management of Raechel Willson House. That application was dismissed in Lloyd and The Australian Nursing Federation (Victorian Branch) v Mildura Base Hospital (IRCA, unreported, 6 March 1997). The misconduct relied on in Lloyd was failure to manage Raechel Willson House. The respondent there asserted that

• it had reasonable grounds for concluding that a series of incidents and practices occurred

• the incidents and practices breached hospital policies, Commonwealth Nursing Home Outcome Standards, Nursing Quality Assurance Committee Standards, the Equal Opportunity Act and the Occupational Health and Safety Act

• a number of State Enrolled Nurses under the direct control and supervision of the Applicant were involved in the incidents and practices

• the Applicant failed to address the incidents and practices

In more specific terms the Respondent asserted the Applicant failed to

• investigate the incidents and practices

• act on complaints

• supervise staff under her direct control

• manage Raechel Willson House adequately

• ensure adequate standards of nursing care

The respondent did not attempt in Lloyd to establish the occurrence of any or all of the incidents and practices and did not accuse the applicant in that case of personal involvement in patient abuse or in any other inappropriate conduct directly involving the residents of Raechel Willson House.

In Lloyd, the respondent’s position was based in no small measure on Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224; Puccio v Catholic Education Office and Another (1996) 68 IR 407 and Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J). In these cases the respondent does not seek to rely on Bi-Lo, Sangwin and Puccio. The respondent asserts that many incidents of misconduct occurred and that the misconduct was a valid reason for the termination of each applicant. However, there is still much in those cases which supports the conclusion that there were valid reasons for the termination of these applicants.

In Sangwin at 11 von Doussa J said:

“An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator’s employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?”

In Sangwin, the employer was ultimately unable to satisfy the Court that it had a sound reason for termination of employment. Puccio, in contrast, was a case analogous to the “health worker or child care provider” referred to as an example in Sangwin. The case dealt with a teacher dismissed for alleged misconduct. Von Doussa J held that the respondent had a valid reason because he was satisfied that the inappropriate conduct alleged did in fact occur. At 417 he said:

“The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee’s capacity or conduct within the meaning of s170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee.” see Sangwin v Imogen.

In Puccio His Honour also referred to the possibility of shortcomings in the procedures followed by an employer to bring about a dismissal. I do not believe, that, in these cases, there were shortcomings of any significance in the procedures and if I am wrong about that I too am fortified by the conclusion in Puccio at 418:

“It does not necessarily follow that because a shortcoming is demonstrated in the procedures followed by the employer to bring about the dismissal, that the dismissal occurred in contravention of the Act. If the established facts show that the employer had a valid reason for dismissal, and the fact of dismissal in all the circumstances is not harsh, unjust or unreasonable, there is no contravention even though the employer’s procedures are open to criticism: Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 at 805, 827-828: 61 IR 32 at 43, 73-75.”

ORDERS

1. Application No VI96/1236 of Sharon Lee Schroeder and Health Services Union of Australia be dismissed.

2. Application No VI96/1237 of Tracey Elizabeth Winslow and Health Services Union of Australia be dismissed.

3. Application No VI96/1246 of Sandra Helen Twomey and Health Services Union of Australia be dismissed.

4. Application No VI96/1247 of Ceanita Ann Spooner and Health Services Union of Australia be dismissed.

5. Application No VI96/1248 of Julieanne Davey and Health Services Union of Australia be dismissed.

I certify that this and the preceding fifty-four (54) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan

Associate:

Dated:            18 December 1997

Representatives for the Applicant:

Mr J Clancy and Ms P Fegan, Health Services Union of Australia.

Counsel for the Respondent:

Mr L Kaufman

Dates of Hearing:
Mildura
Melbourne
Irymple

Melbourne

15, 16, 17, 18 April 1997
1 May, 1997
2, 3, 4, 5, and 6 June 1997
10, 11 and 12 June 1997
5 and 6 August 1997

Date of Judgment:

18 December 1997