Schroeder & Others & HSU v Mildura Base Hospital
[1997] IRCA 130
•9 Apr 1997
DECISION NO:130/97
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - bias - reasonable apprehension of bias by reason of prejudgment.
Workplace Relations Act 1996 s.170EA
CASES:
Livesey v The New South Wales Bar Association, 151 CLR 288
ANA v Spedley Securities, 26 NSWR 411
SCHROEDER & OTHERS & HSU -v- MILDURA BASE HOSPITAL
No. VI-1236 of 1996
No. VI-1237 of 1996
No. VI-1246 of 1996
No. VI-1247 of 1996
No. VI-1248 of 1996
Before: Ryan JR
Place: Melbourne
Date: 9 April 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1236 of 1996
B E T W E E N :
SCHROEDER & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
VI-1237 of 1996
B E T W E E N :
WINSLOW & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
VI-1246 of 1996
B E T W E E N :
TWOMEY & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
VI-1247 of 1996
B E T W E E N :
SPOONER & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
VI-1248 of 1996
B E T W E E N :
DAVEY & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 9 April 1997
THE COURT ORDERS:
That the Motions be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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
B E T W E E N :
SCHROEDER & OTHERS & HSU
Applicant
AND
MILDURA BASE HOSPITAL
Respondent
Before: Ryan JR
Place: Melbourne
Date: 9 April 1997
REASONS FOR JUDGMENT
NOTICE OF MOTION
(Delivered ex tempore)
(Revised from the transcript)
In Mildura on 3 September 1996, a number of separate applications by former members of the nursing staff at the respondent's nursing home at Mildura Base Hospital were called over. The applications were all under s170EA of what is now the Workplace Relations Act 1996 and sought remedy for what was claimed in each case to be unlawful termination of employment. The parties in all the matters agreed that the application by the manager or charge nurse of the nursing home should be heard first and that the remaining applications, although separate applications, be heard together and after the application by the charge nurse.
On 6 March, I delivered judgment in the first application, that is in Lloyd and ANF (Victorian Branch) v Mildura Base Hospital. The applicants in the other matters, that is the applicants other than the union, the Health Services Union (HSU), were all enrolled nurses who worked at the nursing home and were subject to the overall supervision of the charge nurse, Ms Lloyd.
By Notices of Motion, stamped as filed on 3 April and returnable today 9 April, the Applicants, that is the former enrolled nurses and their union HSU, have moved that I disqualify myself from hearing the remaining applications. Mr Langmead as the solicitor for the Applicants, in an affidavit stated as affirmed on 4 April but perhaps 1 April and stamped as filed in the Court on 3 April, states in paragraphs 3 and 4 as follows:
The course of events which were the subject of the earlier matter are the same as or very similar to the events which are the subject of proceedings in this matter.
Ryan JR made decisions in the earlier matter which, with respect, give rise to a reasonable apprehension of bias in his hearing this matter.
Today, Mr Langmead based the application that I disqualify myself on findings on page 13 of the judgment in Lloyd which are as follows:
“The Respondent held an honest belief on reasonable grounds after adequate investigation. The belief was that the Applicant was responsible for
serious deficiencies in the investigation, documentation and handling of issues and incidents
seriously compromised standards of nursing care
continuation of aged abuse
reduction of available staff hours because of extended and unauthorised breaks
mismanagement including failure to manage gross insubordination and harassment of the Applicant herself.”
It is asserted on behalf of the Applicants that the principle is that:
“A judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. “
That is a citation from Livesey v The New South Wales Bar Association, 151 CLR 288 at 293. Specifically, it is asserted on behalf of the Applicants that:
“A fair-minded observer might entertain a reasonable apprehension of bias by a reason of prejudgment if a judge” (that is the Court as presently constituted) sits to hear a case at first instance after he has in a previous case expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent cases or about the credit of a witness whose evidence is of significance on such question or questions of fact.”
That too is a citation from Livesey at 300.
Mr Langmead relies primarily on the assertion that I have expressed clear views about questions of fact which constitute live and significant issues in these cases. He also seems to suggest that I have expressed clear views about the credit of a witness in that, according to him, I have expressed such view about the credit of Ms Lloyd who he claims will be called as a witness by the Applicants.
Firstly, I do not accept that I have expressed views about the credit of any person in my judgment in Lloyd v Mildura Base Hospital and I therefore have not expressed clear views on the credit of a potential witness in these matters. Mr Langmead further submits, and perhaps primarily submits, that my findings as quoted above are clear views about questions of fact which constitute live and significant issues in the matters listed to proceed before me in Mildura on 15 April.
What the Court did was find that the Respondent held an honest belief on reasonable grounds after adequate investigation that Ms Lloyd was responsible for compromised standards of care, continuation at a particular time of what was described as “aged abuse” and which would be better described as “abuse of the aged”, and was responsible for reduction of staff hours and mismanagement. The Court did not make any findings of fact as to standards of care, aged abuse or reduction in hours, but that the respondent believed these things to have occurred and based the termination of Ms Lloyd on that belief and on perceived mismanagement by Ms Lloyd.
The Court did not find that any specific standards of care were breached by any Applicant in the proceedings which are the subject of the notices of motion before me. The Court did not find that any Applicant in the matters now before me was involved in any abuse of the aged or in the reduction of hours but rather that the Respondent had an honest belief that, in general terms, standards of care had been compromised and hours had been reduced and that there were incidents of abuse of the aged.
I do not accept that I have expressed clear views on questions of fact which are a live and significant issues and accordingly do not accept that a fair-minded observer might entertain reasonable apprehension of bias by reason of pre-judgment. I am very conscious of the recent decisions of the High Court as summarised particularly by Kirby P as he then was in ANA v Spedley Securities, 26 NSWR 411. I am very conscious of the importance of avoiding any reasonable apprehension of bias.
I am also conscious of what is said in Livesey at 294:
“If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgement or bias he should of course refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as a judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”
In the cases listed before me next week the Respondent must in each and every case establish a valid reason for termination. The unsworn affidavit of Richard Corboy states in paragraphs 4 and 5:
Each of the human applicants was dismissed for reasons related to the conduct of each individual applicant.
None of the human applicants had her employment terminated for any of the reasons for the termination of the employment of the human applicant in the earlier matter.”
I note the material supporting those statements provided in Exhibit RC1. In each case listed for next week, the Respondent will be required to establish specific and separate grounds for the alleged misconduct of the Applicants if that be, as it appears, the grounds asserted to be valid for substantiating each termination. In each case, the Respondent will have to deal with individual and specific issues and facts and on none of those has the Court made any finding. It also goes without saying that the Respondent will be required to discharge the onus placed on it in general terms under the relevant division of the Workplace Relations Act.
In the circumstances, the motions are dismissed. The matters remain listed for hearing in Mildura on 15 April.
MINUTES OF ORDERS
THE COURT ORDERS:
That the Motions be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 4 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 11 April 1997
Solicitors for the Applicant: Maurice Blackburn & Co
Counsel for the Applicant: Mr D Langmead
For the Respondent: Victorian Hospitals Industrial
Association
Counsel for the Respondent: Mr L Kaufman
Date of hearing: 9 April 1997
Date of judgment: 9 April 1997
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