[2016] FWC 4569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Steele
v
St Vincent’s Hospital (Melbourne) Limited
(U2014/6445)

COMMISSIONER CRIBB

MELBOURNE, 19 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Sean Steele (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by St Vincent’s Hospital (Melbourne) Limited (the Respondent, St Vincent’s, the Hospital).

[2] The application was listed for conciliation on 15 May 2014 but was not settled. Hearings took place on 16 November 2015, 23 February 2016, 24 February 2016, 25 February 2016, 3 May 2016 and 4 May 2016. Mr Steele, Registered Psychiatric Nurse (RPN) Grade 3 with the Crisis & Assessment Treatment Service (CATS) and Psychiatric Triage Department (Triage), gave evidence. For the Hospital, Mr Bryan Bowditch, Manager of the Crisis & Assessment Treatment Service and Psychiatric Triage Department; Mr Peter Rowe, RPN Grade 4 with CATS and Triage; Ms Margaret McKeon, RPN Grade 4 with CATS and Triage and Mr Marco de Marte, Senior Human Resources Consultant, gave evidence.

[3] Mr Steele was represented by Mr M Addison, solicitor and St Vincent’s by Mr M Rinaldi, of Counsel.

1. Introduction

[4] Mr Steele was dismissed on 25 March 2014 for failing to follow a reasonable instruction from Ms McKeon on 29 January 2014. The letter of termination 1 also stated that Mr Steele had previously been notified of the authority of an RPN Grade 4 and that his unwillingness (refusal) to follow a reasonable directive was consistent with his previous behaviour. Further, it was the Hospital’s view that Mr Steele’s claim that Ms McKeon was unprofessional in her instruction to him had been found to be malicious and vexatious towards Ms McKeon.2

[5] As a result of an incident on 6 January 2013 involving Mr Rowe, Mr Steele was given a final written warning in relation to his behaviour which was deemed to be serious misconduct and completely inappropriate. 3 The warning recorded the outcomes of the meeting held on 25 November 2013 to discuss the allegations as:

The RPN Grade 4 (Mr Rowe) is Mr Steele’s senior and so, as an RPN Grade 4, has the authority to issue Mr Steele with an instruction and delegate work to him.

The claim that Mr Rowe was “substance affected” was investigated and found to be unsubstantiated. Mr Steele’s claim about Mr Rowe was malicious and vexatious and was because Mr Rowe had raised his concerns about Mr Steele’s behaviour with his manager.

If Mr Steele had actually believed that Mr Rowe was substance affected, Mr Steele had failed in his obligation to have acted on the very serious assumption that a fellow nurse was practising when substance affected. 4

2. Legislative requirements

[6] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[7] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal

[8] It was agreed by the parties that the Commission, in considering whether or not there was a valid reason for Mr Steele’s dismissal, should take account only of the incidents on 6 January 2013 and on 29 January 2014. It was agreed that an incident on 29 June 2013 was not to be included in the Commission’s considerations in regard to valid reason. However, from the Respondent’s point of view, it was argued this incident was a matter to be taken into account in any consideration of whether or not Mr Steele should be reinstated. 5

(i) Incident on Sunday 6 January 2013

[9] On Sunday 6 January 2013, Mr Steele and Mr Rowe were both rostered on in CATS. As a result of a particular exchange between Mr Rowe and Mr Steele, Mr Rowe made a complaint to the manager, Mr Bowditch, about Mr Steele.

[10] It was common ground that, on 6 January 2013, Mr Rowe drove to work and arrived around 9.00 a.m. (about one hour late). It was also not in dispute that Mr Rowe and Mr Steele went out together to visit a particular client and that Mr Rowe drove the car.

Witness evidence

Mr Steele

[11] It was Mr Steele’s evidence that:

The role of an RPN Grade 4 is to provide a sounding board to RPN Grade 3s to give assistance and direction when needed. Other than that, RPN Grade 3s worked pretty much autonomously. If an RPN Grade 3 had an issue, they would consult the RPN Grade 4s as to what decisions we could make and what things were available for RPN Grade 3s to pursue. 6

He agreed that the staff of the CATT (Crisis Assessment and Treatment Team)/Triage team work autonomously and make decisions based on their level of experience. If they have concerns, they can always contact the on call psychiatrist. 7

If there is a difference of opinion, they would consult with the other staff. There was generally no major difference of opinion because the role was pretty straightforward. However, they could always run it past the psychiatric registrar, the psychiatrist or, whoever has the difference of opinion, can always consult the on call manager. The on call manager would then direct them to do what the on call manager thought was appropriate. 8

Differences of opinion were common and normally they are worked out by explaining your perspective on situations and people. Just because clinicians don’t agree doesn’t mean that one is right and one is wrong. Once clinicians consult and get this information out, it is resolved very very quickly. 9

As an RPN Grade 3, if he was working with a senior clinician then he would consult with them. However, there was never a guaranteed allocated senior clinician on shift. 10

On Sunday 6 January 2013, he arrived for his shift at 8.00 a.m. and set about preparing for the shift. There was not too much on that morning. 11

Around 9.00 a.m. (at least an hour late), Mr Rowe arrived looking notably hung over and was pretty irritable and not really approachable. When he (Mr Steele) addressed the workload for the day, Mr Rowe tried to re-prioritise it to suit his own agenda. As Mr Rowe was the senior on shift, he had no recourse but to follow Mr Rowe’s agenda. 12 Mr Rowe was too erratic at the time and it was only later that he actually got his act together.13

He was being sarcastic when he said that it was a very hectic morning. Rather, it was a reasonably slow morning. 14

Sometime after 10.00 a.m., he and Mr Rowe left to go and assess a client’s mental state and risk. During the interview with the client, Mr Rowe led the interview and engaged the client in conversation and was a little bit rambling and disjointed. He (Mr Steele) sat back and listened. Several times when he tried to interject and to ask questions about different comments Mr Rowe had made, he was rebuffed and was told by Mr Rowe that this was his assessment and that he was dealing with it. He (Mr Steele) allowed Mr Rowe to continue with the assessment. 15

He felt excluded and a bit embarrassed because of Mr Rowe’s behaviour. There was a lot of strange information exchanged. 16 He had indicated to Mr Rowe that he felt that Mr Rowe had been dismissive of him but he did not say that in front of the client.17

Mr Steele had not met the patient prior to the interview and Mr Rowe made comments during the interview regarding changes and improvements in her presentation which he assumed meant that Mr Rowe knew the patient a lot better than he (Mr Steele) did as this was the first time he had actually met this patient. 18

He understood that Mr Rowe had met the patient on a number of occasions before. If Mr Rowe had not seen the patient for two weeks then Mr Rowe had seen her more often than he had. If Mr Rowe had seen the patient two weeks earlier, Mr Rowe would be aware of any changes that had taken place whereas he (Mr Steele) would not. 19

He had never met the client before and was not aware of her pre-morbid type of personality despite what he had read in the file. 20

Following the assessment, he phoned another client to organise a time for a home visit. The client came through the Bluetooth on the car and said that they would not be home until the afternoon. Mr Rowe then interrupted the conversation and started to make arrangements for the client to be followed up in the afternoon. 21

He disputed Mr Rowe’s contention that they had engaged in a clinical discussion after the visit. 22

When they returned to the office, Mr Rowe threw the file of the first assessment on the desk in front of him and told him that he could write this up and walked off. He was surprised about this considering that Mr Rowe had run the whole interview and engaged with the client and made plans for further outcomes with the client which were not discussed with him. 23

He disputed Mr Rowe’s version that he did not throw anything at him and said that that was a lie. 24

He did not think it was appropriate (the proper thing to do) that he write the clinical notes for someone that he was not involved in the assessment of and someone for whom he did not understand the arrangements that had been made. The best possible outcome for the client was that Mr Rowe wrote the notes and that he make a note of the plans that had been made. 25

He had explained to Mr Rowe the reasons why it was Mr Rowe’s obligation to write up the interview. 26

Mr Rowe insisted that he (Mr Steele) write the notes. It was his (Mr Steele’s) professional judgement that it was not appropriate that he write the notes for an interview that he did not conduct. 27 It was said to be in the client’s best interests for the notes to be written up by the person who conducted the interview, who knew the client and who had made plans and interventions regarding the client.28

It is clinically indicated (best clinical practice) for the person who conducted the interview to maintain a continuum of care and write the notes. 29 He was not aware of the differences that Mr Rowe had noted since his last visit and for him to try and interpret Mr Rowe’s thoughts on the matter was said to not be a good idea for the client.30

He had read the clinical notes which were quite extensive and they did go for quite a while. He had read the notes briefly prior to the visit as there were other notes that needed to be looked at as well. 31 He agreed that he should have read the clinical notes prior to the home visit but said that it was not possible to read all of the clinical notes because some of them were quite long.32

Because Mr Rowe had known the client previously, he thought it would be more appropriate for Mr Rowe to continue so as to maintain a consistency of care. 33

This was despite Mr Rowe being the RPN Grade 4. 34 It was stated to not be the role of an RPN Grade 4 to delegate that type of work (writing up notes). Rather, it was them shirking their responsibility. The role of an RPN Grade 4 is a supervisory type position. They do not actually have authority over RPN 3s as, in the RPN 4s job description, their authority is nil. Rather, the RPN 4s are there for RPN 3s to use as a sounding board and to make sure that RPN 3s are doing the best that they possibly can.35

RPN 4s do have authority to give him a direction and to delegate but they do not have the authority to unfairly delegate by dumping their work on us without us questioning it because that opens everything up to bullying. He had expressed his concern that this was what was actually taking place. 36

It was his view that an RPN 4 has a right to make a reasonable request but for Mr Rowe to deliberately shirk his responsibility was not a reasonable request. 37 It was stated that it was best indicated for the client that Mr Rowe write the notes and that Mr Rowe was clinically obligated to write those notes. Further, it was accepted practice that whoever conducted the interview would write the notes. He stated that he did not refuse to do what he was directed. He did what was clinically indicated to be in the best interests of the client.38

Mr Rowe’s account of the incident was said to be a lie which suited Mr Rowe’s agenda. It was stated that Mr Rowe was saying that everything he (Mr Steele) had said was untrue and he denied that he had been belligerent or refused to carry out his duties. He found Mr Rowe’s accusation that he was not carrying out his fair share of responsibilities to be offensive. The fact that he had stood up to Mr Rowe and refused to do what he considered to be clinically indicated as Mr Rowe’s work, was said to have caused Mr Rowe to be affronted and Mr Rowe had no recourse but to call him a liar. 39

Mr Rowe became irritable and accused him of not doing his fair share of work and of shirking his responsibilities. As he (Mr Steele) had been at work at least an hour before Mr Rowe, he found this quite offensive from Mr Rowe. 40

He told Mr Rowe that professionally, it was Mr Rowe’s role to write up the notes and that he should write them and that he (Mr Steele) would be happy to follow up with the other issues. 41 He had explained to Mr Rowe that he thought it was most important that he (Mr Rowe) write up the notes because he had conducted the interview and had been the person who made the treatment plans and judgements over the client’s further care.42 Mr Rowe asked him once to write up the notes and he had declined.43

Mr Rowe was quite abusive and scathing of him and expressed his personal opinion about what he thought of him. This was that he was lazy and insolent and he used a lot of colourful language (lots of expletives) and abused him. 44

Mr Rowe then said that he would be taking this matter to Mr Bowditch to which he had responded that he should take it to Mr Bowditch as it was not uncommon for Mr Rowe to do this. 45 He had suggested to Mr Rowe that he just email Mr Bowditch as he would normally do. He said this because Mr Rowe would normally email Mr Bowditch with his concerns.46 It also meant that he would get an opportunity to explain why he had chosen to request that Mr Rowe write up the interview rather than himself.

At this stage Mr Rowe got more and more angry but he ended up writing the notes and then left the office without saying where he was going. This meant that he (Mr Steele) was left alone in the office. 47

When Mr Rowe returned to the clinic, he appeared a lot more settled, less agitated and less hung over and was more approachable. He avoided having any contact with Mr Rowe as he did not want to upset him even more. 48

There may have been CATT follow up items to be dealt with on 6 January but Mr Rowe did not make him privy to that information. He contacted the Triage service and spoke to them about what was to be followed up but there was nothing at the time. 49

There were phone calls to be made to organise appointments but it is not appropriate to ring someone at 8.00 a.m. on a Sunday morning. There was the general morning duties list and there were follow-ups there and he did make the calls but there was no answer to his calls. Consequently, he left it until later in the morning. 50

The shift started at 8.00 a.m. and it was not unusual for Mr Rowe to arrive a lot later than 9.00 a.m. They would often jokes that, if you put things in too early, then Mr Rowe would be angry because he would have to come into work on time. It was not unusual for Mr Rowe to turn up for work on a weekend between 9.00 a.m. and 10.00 a.m. It was the consensus amongst staff that, if you worked with Mr Rowe, he would always be late. 51

The weekend in question, Mr Rowe turned up at 9.00 a.m. 52 He had assumed that Mr Rowe had come in earlier because he knew that he was working with him and that Mr Rowe knew that he gets to work on time.53

In his opinion, Mr Rowe arrived at work hung over. He had used the term “substance affected” and later on, in his email to Mr Bowditch and Mr de Marte, he had used the term “substance related” (in layman’s terms - hung over). It was explained that, when assessing individuals, they would refer to them as being substance affected - whether it be alcohol or other drugs. When he said substance affected, he meant hung over. 54

He did not object to getting in the car with Mr Rowe because he knew that Mr Rowe had driven to work and Mr Rowe has settled somewhat before they went out on the home visit. He had assumed that Mr Rowe was capable of driving safely and Mr Rowe had grabbed the car keys and had insisted on driving. 55 He did not report Mr Rowe for being substance affected.56 He denied making up this allegation to get Mr Rowe into trouble.57

He disagreed with Mr Rowe’s contention that, whilst Mr Rowe had spent the best part of an hour working, Mr Steele had been surfing the internet. 58

During the disciplinary meeting on 25 November 2013, he was told that RPN 3s have to accept whatever an RPN 4 says. This was stated to be wrong because they do not have to accept everything at face value or to blindly follow orders. RPN 3s were stated to be autonomous and allowed to question things. It was said that, if he felt that it is inappropriate, he had the right to question it. Also, the job description was recalled to show that RPN 4s have no authority. 59

In relation to the warning letter of 13 December 2013, he stated that he had never disputed that RPN Grade 4’s could issue him a lawful and reasonable instruction and to delegate work to him. 60 However, what he disputed was that he had to blindly follow a direction and do so without question.61 He believed that, if he did not agree with a directive, he was able to question it. He had no trouble following directions provided they were appropriate in his professional opinion. He stated that he was allowed to question a direction if he thought it was inappropriate i.e. the propriety of whether it was appropriate.62

He denied that he liked to make up his own mind about things. He said that, when it came to his professional opinions, he was always open to other people’s ideas. He stated that he was not headstrong and that he didn’t just stick with what he thought. It was stated that he worked autonomously and that he did trust his judgement but that, at the same time, he was always open and would question his decisions. He disagreed that he was not a team player nor a person who did not cooperate with the hierarchy. 63

He stated that, just because he questioned decisions did not mean that he was rebellious. Rather, it meant that he liked to make sure that he was making the right decision based on the information at hand. He thought that what is best for the patient was what should be done all the time but this was not regardless of what direction he might have been given by an RPN Grade 4. 64

An RPN 4 has authority to give him a direction but he also has authority to question that because he was not a drone who would blindly follow directions. He had to take into account every aspect of the situation. It was not his obligation to follow directions without question. 65 When he was given a direction by an RPN 4, he would ask them the reasons behind the decision as anyone would do.66

He denied refusing to do what he had been directed to do. Rather, it was a matter of questioning and if he thought that it was illegal or improper, he would not do it because that was not the right thing to do. 67

The right thing to do was what was the best thing for the patient not what he believed was the best thing. He decided what the best thing for the patient was by applying the Mental Health Act and policies and procedures as best he could and by taking into account what was best for the patient and their family and the situation at hand. 68

In relation to the direction from Mr Rowe, he explained to Mr Rowe at the time, that in this case, it was the most clinically indicated thing that he write the notes. This was because the way that it worked was that, whoever carried out the interview, was the one who wrote up the notes. He had decided to ask Mr Rowe to do it because it was what was best for the patient and what was best for consistency of care. 69

He denied that he had refused. Rather, it was said to be a matter of him explaining the situation to Mr Rowe and that he felt that it was clinically indicated that Mr Rowe should write them up and that it was the best thing for the patient. He had asked Mr Rowe to write the notes because it was the best thing for the client. 70 He did not write the notes because it was best indicated that Mr Rowe write the notes.71 He denied that, when he said ‘clinically indicated’ it was just his opinion. Rather, it was in most of his colleague’s professional judgment even though they had not been in his situation.72

It was acknowledged that he made a decision off his own bat to ignore a request from an RPN Grade 4 to write up the notes. 73 He said that his personal professional judgement of what was best for the patient overrode what he was directed to do by his superior.74 He said that he thought that this was permissible.75

The normal and accepted practice in all cases is that, regardless of whether a person is an RPN 3 or an RPN 4, whoever conducts the interview writes the notes. If you do not conduct the interview, you do not write the notes as it would be second-hand information. 76 It was said to be important that the person asking the questions write the notes because they are the ones formulating the questions.77

In his written response to Mr Rowe’s complaint, when he stated that, with Mr Rowe’s presentation, he would have assumed Mr Rowe to be substance affected, he denied that it was intended to cast a slur. Rather, it was his observation (and opinion) that Mr Rowe was hung over that day, given his late presentation (an hour late for his shift) and the way he looked (unwell and he was irritable and surly). He agreed that he did not use the word “hung over” but rather, “substance affected”. He said that he was not talking to anyone else except Mr Bowditch and that Mr Bowditch knew that substances included alcohol and other drugs. 78

He did not have an axe to grind with Mr Rowe and that was not why he did not follow Mr Rowe’s direction to write up the notes. Rather, he did what was best for the client. He said Mr Rowe was a strange fellow at times but he did not have any feelings towards Mr Rowe either way. 79

Prior to the incident on 6 January 2013, the relationship between himself and Mr Rowe was reasonably professional but very superficial. He said that he had always tried to maintain a professional presentation because he did not find Mr Rowe to be a pleasant fellow to work with. 80 He and Mr Rowe had worked together many times without any major problem. He did not think that Mr Rowe particularly liked him or that he particularly wanted to work with him.81

When he wrote to Mr Bowditch, he was upset that Mr Rowe had reported him for doing what he thought was the best thing for the client and that he had been accused of not doing his fair share of the work. He did not think that his comments regarding Mr Rowe and several other senior clinicians not finishing their work from the previous evening was judgmental. Rather, it was what he had observed. 82 He was not upset when Mr Rowe complained to Mr Bowditch that he had refused to do his work. Rather, he was surprised that Mr Rowe had bothered to follow through.83

His claim that Mr Rowe was substance affected was not malicious and vexatious. He denied going on the counter-attack after Mr Rowe had complained about him. Rather, he had responded to a request from Mr Bowditch to give him his version of the events of that day. 84

He denied putting the RiskMan incident reports in in December because he was upset at having received a final warning and he was going on the counter attack. Rather, he felt that they were warranted given the accusations that were levelled against him. 85 He thought that he would have created them well before he received the warning letter. This was because he had created them when he found himself to be the target of bullying and harassment from some of his co-workers - about a year before he was dismissed. He would have created them after he had returned to work from leave (after 25 November 2013).86

He had never had any formal training on RiskMan and thought that RiskMan was what you do when you have problems that are not addressed and when you feel that you are not being listened to. 87

He acknowledged that the warning letter of 13 December 2013 put him on notice that a similar occurrence (to the Mr Rowe incident) may result in termination of his employment. 88

Mr Rowe

[12] Mr Rowe’s evidence was that:

When he arrived at work he was not hung over. 89 This was said to be a complete fabrication.90

In relation to the particular client, he had only encountered the client once before - about 2 weeks previously. He denied having seen the client on several occasions. 91

He rejected Mr Steele’s contention that he had reviewed this client several times in the past and so knew her very well. 92

He had led the interview with the client. 93

He denied Mr Steele’s view that Mr Steele had attempted to take an active part in the interview but that Mr Rowe had cut him off when he tried to have the client elaborate on some of her statements. 94

It would be professionally inappropriate to deliberately cut somebody off to exclude them. It did not happen. 95

When they returned to the clinic, he decided that Mr Steele should write up the notes and so had asked him to do that. 96

He denied throwing the file at Mr Steele. 97

When asked if he would mind writing the visit up, Mr Steele had said that he wasn’t going to write up the notes and that Mr Rowe should do a record of the visit because he (Mr Rowe) knew the patient. 98

The decision about who would write up the notes is based on having an even distribution of workload. It would be expected that, if someone had been to see the patient, they would be able to write a reasonable account of the visit. 99

He could have written up the notes regarding the patient. He was perhaps in a better position to write up the notes because he had bothered to read through the patient notes before he went on the visit. 100

It was stated that Mr Steele appeared not to have read through the patient’s notes but that he ought to have as it was reasonable for him (Mr Rowe) to have expected that he and Mr Steele would have had equal knowledge of the patient up to that point. 101

Mr Steele was at the interview and so would have been aware of everything that had happened. He and Mr Steele had also had a discussion about the patient’s progress straight after the visit. It was Mr Rowe’s view that he and Mr Steele were in the same position in relation to knowledge about the patient. Although he was more familiar with the patient (one contact 2 weeks previously), Mr Steele was not any less familiar with the patient as he had access to the documentation, was at the visit and they had had a clinical discussion afterwards. 102

He could have written up the notes but there were other things that he took into account in making the decision that Mr Steele should do that. One of those things was that he had done a substantial amount of clinical work that morning. To the best of his knowledge, Mr Steele had done none. 103

He was aware that, from the time he had been in the clinic, Mr Steele had done no clinical work. He had been surfing the internet and been smoking at the front of the clinic with a colleague. It was recalled that he had asked Mr Steele to get organised to come to the visit and Mr Steele has said that he intended to have a cigarette first. As a result, they had arrived late at the visit. 104

It was acknowledged that he did not know what Mr Steele had done between 8.00 a.m. and 9.00 a.m. 105

Working as part of a team, the work needs to be equitably distributed. He had done a lot of work tidying up an assessment from the night before as there was an expectation that the patient would come into emergency but that had not happened. He subsequently had a lengthy conversation with the patient’s mother. There were also some complications about putting the patient notes from the night before on the system as there was a new electronic record. 106

It was disputed that the accepted practice was that the person who led the interview writes up the notes. Rather, it was said to be accepted practice that the recording of interviews and home visits is done so that there is an equal distribution of workload. 107

It was not inappropriate to ask Mr Steele to write up the interview. 108

He had disputed Mr Steele’s reasons for why it was more appropriate for him (Mr Rowe) to write up the notes. He had said to Mr Steele - “No, you write them up”. 109

He had said to Mr Steele that he always did the minimum he could get away with but without using colourful language. 110

He agreed that he was angry and said that he had left the clinic to have some space from Mr Steele. 111

He had told Mr Steele that he would be raising it with Mr Bowditch. Mr Steele’s response was to suggest that Mr Rowe email Mr Bowditch. 112

It was confirmed that he had sent an email to Mr Bowditch. He explained that he had said in his email that there had been “more problems” with Mr Steele because it was quite common for Mr Steele to be a problematic person in the team in relation to his contribution to workload. It was said that this was well known within the team and that he had raised this issue with Mr Bowditch previously. 113

He denied that he had it in for Mr Steele when he sent the email to Mr Bowditch. Rather, he said that he used to cut Mr Steele a lot of slack and not ask very much of him at all. This was said to be because it was usually problematic i.e. Mr Steele would often object to doing things. 114

Mr Bowditch

[13] In relation to the incident on Sunday 6 January 2013, Mr Bowditch gave evidence that:

He accepted Mr Steele’s statement that he (Mr Steele) was at work at 8.00 a.m. which was the normal starting time. 115

He accepted Mr Rowe’s statement that he had arrived at work late. 116

He accepted that Mr Steele’s statement said that Mr Rowe was substance affected when he came to work. 117

As part of the investigation, Mr Rowe said that he was not substance affected. 118 He preferred Mr Rowe’s version on this aspect to that of Mr Steele because there were parts of Mr Steele’s statement which did not make sense when the whole situation was looked at. For example, if one thought that someone was substance affected, it was surprising if you allowed that person to drive you to home visits in a car.119

After looking at the evidence, he did not believe that Mr Rowe was substance affected. 120

The workload on the Sunday morning in question was generally light. 121

He accepted that there were two different versions about what had happened on 6 January 2013. 122

He had spoken to other people who were on duty on 6 January 2013 regarding how they had experienced Mr Rowe on that day. He had asked them if they believed that Mr Rowe was substance affected or under the weather on that day. He could not remember who but said that the other staff did not believe that Mr Rowe was substance affected or hung over on 6 January 2013. 123

He had not taken an informal approach as he thought that this incident was more serious. This was because a staff member was saying that another staff member was substance affected whilst on duty. 124

He understood that, from Mr Rowe’s perspective, it was not the first instance with Mr Steele but it was the one that Mr Rowe chose to bring to his attention formally. 125

It was perfectly appropriate for an RPN Grade 4 to direct an RPN Grade 3 to document a home visit. It was unacceptable that Mr Steele had refused. 126

[14] With respect to the context within which the incident on 6 January 2013 occurred, it was Mr Bowditch’s evidence that:

RPN Grade 3s and RPN Grade 4s are both very senior employees with significant amounts of experience and skill. 127

Their roles are primary clinical roles with administrative functions e.g. writing assessments in various electronic systems. 128

There is a clearly implied hierarchy with RPN Grade 3s and RPN Grade 4s. Some of the functions that the staff perform are designated as senior roles. If an RPN 3 performed those roles, they would be paid higher duties as an RPN Grade 4 e.g. Emergency Department Mental Health and Triage night duty. 129

The Triage person takes the calls, gathers information and then makes a decision based on the information gathered regarding what response is required. 130 That it is a position of trust was said to be implied.131

It is expected that each clinician acts within a team environment but autonomously. It is also expected that every clinician will exercise discretion and decision-making on a daily basis. 132

If an RPN Grade 3 disagreed with a decision from an RPN Grade 4, it was expected that there would be a discussion between them about what the issues were, rather than the RPN Grade 3 saying that they would not do as directed. It was expected that, if the RPN Grade 3 still disagreed with the direction, the RPN Grade 3 would escalate the issue to the on call Registrar or a consultant or manager and to get some resolution. Mr Bowditch expected that it would not end with someone saying “no” but that it would go to the next stage so that it could be worked out as to what was the most appropriate thing for the client. There was no expectation that an RPN Grade 3 would blindly follow a direction from an RPN Grade 4. 133

It was Mr Bowditch’s expectation that the senior clinician would have the greater weight because that was part of their role and the reason why they were employed on a higher level. However, it would not end with a disagreement but would be escalated with some discussion and resolution regarding the difference of opinion. 134

The senior role has the higher authority within the organisation in relation to decision-making and they must account for their decision-making. One of his principles was that the client or the family comes first and if there is a dispute, what is right is done and then a discussion after the fact - rather than it being played out as a power issue between clinicians. 135

The staff operate within a clinical team with structures within that in relation to seniority and the different roles people have. Within the functioning of the team, he expected the clinicians to provide assessments and care using their judgement/make decisions. The clinical team was said to include a structure and a hierarchy. 136

As the clinicians operate in a team, clinicians are not allocated individual clients. All teams see a range of people. 137

The team sees people come and go all of the time with people at various stages. The function of the team is to assess people at that time e.g. how are they presenting/what has happened since last time? It is work that is allocated between people together. If the team sees a number of people, they will generally decide together who will do what in terms of writing up with the writing up generally shared between the clinicians. 138

It did not always make sense that the person most familiar with the client would write up the visit. It was stated that the reality was that two people would go together and both would be part of that interaction. It was said to not be linear in that one person does the interview and the other person observes. As both people are involved, it was said to be a matter of who makes sense to write it up which could be based on a range of things. 139

His personal opinion of how he had found managing Mr Steele (9+ years) was that he was a difficult character within the team. Mr Steele was also said to not be good at taking direction, had issues with authority and was very often obstructive in his manner and conduct. 140

He confirmed that he had spoken to Mr Steele informally in relation to his conduct on a number of occasions. 141

Prior to this incident, there had been no disciplinary action in relation to similar conduct by Mr Steele. 142

Mr Steele’s behaviour generally was said to be obstructive and difficult and it was very difficult to deal with it on an informal basis. Mr Bowditch found that Mr Steele did not respond to feedback about an issue as Mr Steele did not believe there were any issues and generally, Mr Steele believed his opinion was somewhat greater than others. 143

The reason that, prior to 2012, there were no formal issues on Mr Steele’s record was said to be because St Vincent’s is a value driven organisation. It was stated that, unless there was bullet-proof evidence, the organisation was reluctant to pursue performance issues at times. 144

In 2012, it was recalled that there was one incident in relation to Mr Steele. Following the investigation, it could not be substantiated. However, it was stated that, in his mind, Mr Steele had gone missing on the shift but it could not be proved as St Vincent’s requires a high level of proof. It was stated that, just because there were no issues on record, did not mean that there were no problems. 145

People had come to him at times and said that Mr Steele’s behaviour had been difficult. He would then talk with the person and sort out options/discuss how to resolve the issue. It was other team members raising issues with him in general terms which had prompted him to have the informal discussions with Mr Steele. The issues raised were around interpersonal issues with Mr Steele. One example, which occurred in the past 10 years, concerned Mr Steele passing wind in Triage. Mr Bowditch acknowledged that at times, the issues were low level puerile. 146

Mr Steele also had raised issues with him in general about other employees. When requested to provide information about a specific incident he wished Mr Bowditch to investigate, Mr Steele was said to have been unable to do so. 147

In relation to the Position Descriptions for RPN Grade 3 and Grade 4 148, they do not list all of the duties and provide a context within which people work.149

[15] In terms of the decision to issue a final written warning to Mr Steele, Mr Bowditch gave evidence that:

Ms Love, Mr de Marte and himself felt that they believed Mr Rowe’s version of events rather than Mr Steele’s version. 150

It was his personal view that he believed Mr Rowe’s version more than Mr Steele’s version. 151

They believed that the claim that Mr Rowe was drug affected was unsubstantiated and therefore not proven 152 and that Mr Steele had acted vexatiously.153

They believed that Mr Rowe’s version was more credible in that some of Mr Steele’s evidence did not make sense. This was because, if Mr Steele had believed that Mr Rowe was substance affected, he did not do anything about it on the day. Mr Steele’s statement was said to imply that, as Mr Rowe had gone somewhere and returned and was quite different, he may have taken some other substance. They had not found this to be credible based on their investigation. This was also said to be in the context of there being a handover involving other people and that there were other staff around. 154

It was a collective decision (Ms Love, Mr de Marte and himself) to issue a first and final warning on 13 December 2013. There was also some later discussion with the Manager of Mental Health. 155

Submissions

Applicant

[16] On behalf of Mr Steele, it was submitted that:

The test is that the misconduct must be demonstrated to the Commission. This has not occurred in relation to the two incidents. 156

There are factual disputes between the account of Mr Steele and that of Mr Rowe about what happened that day. 157

There was no dispute that Mr Rowe believed that Mr Steele had not completed an equal amount of work on that day. Therefore, Mr Rowe had asked Mr Steele to write up the clinical notes from a visit to a patient where Mr Rowe had conducted the interview. It was also not disputed that Mr Rowe had arrived late that morning - at 9.00 a.m. rather than 8.00 a.m. 158

What was contested was whether Mr Rowe was hung over or substance affected when he arrived at work. This was denied by Mr Rowe. Being hung over or substance affected was said to be consistent with being late to work. The two things tended to go together from time to time. 159

It was thought to be agreed that Mr Rowe knew the client. Mr Rowe’s evidence was that Mr Steele could have read the clinical notes beforehand. Mr Steele’s evidence was that he was aware of the patient’s general medical condition and that he attempted a number of times during the interview to have a conversation with the patient but was cut off by Mr Rowe. 160

When Mr Rowe and Mr Steele returned to the office, it was Mr Steele’s evidence that Mr Rowe threw a file at him and told him to write up the notes. Mr Steele told Mr Rowe that it was in fact better for the patient for Mr Rowe to write up the notes as Mr Rowe was more familiar with the patient and was the clinician that was primarily involved in the interview. On that basis, it was more appropriate that Mr Rowe write up the notes. 161

This is a simple disagreement between two employees about who the most appropriate person to write up the notes was. It was said to be no different to two plumbers who have a different view about how a circuit should operate. 162

Mr Steele did refuse to write up the notes on the basis that it was more appropriate for Mr Rowe to do it. Mr Steele’s refusal was not based on an avoidance of work. Rather, it was simply based on what was best for the patient. Mr Steele gave evidence that it was his clinical opinion. There can be no doubt that Mr Steele is a highly experienced, highly trained clinician with a huge range of experience. Therefore, his clinical opinion should weigh on the Commission in a positive sense. Mr Rowe was also an expert clinician who disagreed with Mr Steele and continues to do so. 163

This was said to be the conduct that resulted in a final warning being issued to Mr Steele on 13 December 2013. 164

The evidence was said to be clear that the first time an incident of this kind occurred was in January 2013. 165

The determination by the Hospital that misconduct had occurred, that the misconduct was serious and lawful and that, under the terms of the enterprise agreement, the conduct was such as to justify termination and therefore was such to justify a final warning, was said to be a massive overreach. 166 It was a massive overreach which ought not to have occurred and which breached the employer’s obligations under the enterprise agreement.167 Rather, the conduct, even if Mr Rowe’s evidence is accepted, warrants a first warning or counselling under the terms of the enterprise agreement.168

If the enterprise agreement had been properly applied, and if one was to accept that there were two incidents and both of them were proven, then the result is an employee with a second written warning. It was stated that the conduct could not warrant termination after ten years of service. 169

It could not be said that it was not open to the employer to prefer the view of Mr Rowe and it might be that the employer came to the conclusion that Mr Steele ought to have followed the direction of Mr Rowe on that particular day. It might well be said that that is reasonable. 170

However, to determine that the conduct amounted to conduct which justified termination of employment was a massive overreach. This was in a situation where the employee has been employed for ten years and, apart from some rostering issues two or three years prior, there was no disciplinary action ever taken against the Applicant. Mr Steele had a clean record and he gave cogent and sensible reasons as to why he did not follow the instruction. 171

The issue of the enterprise agreement is important because it seems that the final warning then set the foundation for what occurred in 2014. This was on the basis that the employer says that the conduct amounted to serious misconduct in terms of it being wilful, malicious and vexatious because Mr Steele observed his fellow employee being substance affected (hung over). 172

The Hospital has said that they did not believe Mr Rowe because it had spoken to other employees who would confirm that Mr Rowe was not hung over. 173 It was argued that this was completely inconsistent with the way the Hospital has addressed these issues. It was stated that, if Mr de Marte had spoken to other employees as alleged, there would have been a witness statement from those employees. There was said to be no substantiation for the Hospital’s contention that they had spoken to other employees who had said that Mr Rowe was not hung over.174

This was said to raise a Jones v Dunkel 175 point on the basis that the employees were not called. The Commission was therefore able to infer that such employees would not have assisted the Respondent’s case.176

This meant that there were two different versions of the event that occurred on that day. Even if the employer believed Mr Rowe’s version, it was argued to not be conduct that could possibly amount to conduct justifying termination. If it is conduct that justifies termination, it must therefore meet the valid reason test. The Commission was referred to the decision of Selvachandran v Peteron Plastics Pty Ltd 177 in relation to a valid reason being sound, defensible or well founded. A reason that was capricious, fanciful, spiteful or prejudiced could never be a valid reason. The decision to issue the first and final warning was said to be arbitrary and not appropriate in the circumstances and was an overreach.

The Commission was also referred to the decision of Michelle de Leon v Spice Temple Pty Ltd 178 where Deputy President Sams, when discussing the meaning of misconduct, referred to a decision179 of the Commonwealth Industrial Court where it was held that “misconduct.. involves something more than mere negligence, error of judgement or innocent mistake.”180

At its highest, accepting Mr Rowe’s evidence almost entirely, what you have here is, if it is indeed that, an error of judgement from a ten year employee. This was founded on concern for the patient and the patient’s best interests. 181

The evidence from Mr Steele was that the accepted practice was that the clinician who carried out the interview was the appropriate clinician to make the medical notes. Mr Steele wanted Mr Rowe to conform with those accepted standards and it was Mr Rowe who refused to comply with those standards. 182

St Vincent’s

[17] In relation to the incident with Mr Rowe, St Vincent’s contended that there were two requests or directions by Mr Rowe and two refusals by Mr Steele. It was stated that Mr Rowe had asked Mr Steele to write up the home visit which he refused to do. Mr Rowe’s evidence was said to have been that he had asked Mr Steele again to do it in the interests of a fair distribution of workload and that Mr Steele had refused. This was described as an earlier example of the same issues that arose with Ms McKeon. Both incidents were said to amount to insubordination. 183

[18] The insubordination was argued to have been compounded by a malicious allegation that Mr Rowe was substance affected. It was noted that Mr Steele had somewhat retreated from that by saying that he meant Mr Steele was hung over. The Hospital argued that “substance affected” generally meant something more serious e.g. illicit drugs. It was contended that there did not appear to be any justification for the allegation. 184

[19] St Vincent’s contended that at either its highest or lowest, Mr Steele’s actions were much more than an error of judgement. Rather they were described as a deliberate act of defiance of authority. 185

[20] In relation to the contention that there was evidence from Mr Steele that the accepted standard was that the person who conducted the interview should write up the notes, it was argued that this was Mr Steele’s opinion. Mr Rowe’s evidence was recalled to be that the person at the interview can do the notes and get the background from the system. 186 However, it was submitted that the key point was that, when the division of labour was determined by the senior clinician, the more junior clinician should follow the direction of the senior clinician.

[21] Further, if it was a serious matter that needed to be taken to the next level up because the RPN Grade 3 did not agree, it was argued that the RPN 3 could do that. On the other hand, if it was not a serious issue, it was said to not be the place of the RPN 3 to ignore the direction from the senior clinician. It was argued that Mr Steele wanted to do it his way and did not care what his superior told him. It was indicated that it may well have been for well-meaning reasons but Mr Steele was making his own decision about what he thought should happen. It was stated that it was not Mr Steele’s place to ignore the direction from the senior clinician without taking it up with the manager. 187

Considerations and findings

[22] I have considered carefully all of the material before me. As the Commission is required to make up its own mind as to what occurred, I make the following findings.

[23] It was common ground that:

Mr Rowe arrived late to work (at 9.00 a.m. instead of 8.00 a.m.). Mr Steele was at work at 8.00 a.m.

Mr Steele and Mr Rowe left the office for a home visit to assess the patient.

Mr Rowe led the interview with the patient.

When they returned to the office, Mr Rowe asked Mr Steele to write up the notes. There was a difference of view as to whether or not Mr Rowe threw the file at Mr Steele.

Mr Steele refused to write up the notes. This was on the basis that it was in the patient’s best interests for the notes to be written up by the person who conducted the interview, knew the patient and who had made plans regarding the patient. It was Mr Steele’s view that it was clinical best practice for Mr Rowe to write up the notes to maintain a continuum of care.

Mr Rowe’s reason for requesting that Mr Steele write up the notes was to ensure an equal distribution of the workload.

Mr Rowe, in his complaint to Mr Bowditch about Mr Steele, said that there was a real problem with Mr Steele pulling his weight.

In responding to Mr Rowe’s complaint, Mr Steele alleged that Mr Rowe was “substance affected” when he came to work.

RPN 4s can issue instructions (lawful and reasonable) and delegate work to RPN 3s. Mr Steele qualified this by saying that the directions had to be appropriate in his professional opinion.

[24] There was a dispute in the evidence, between Mr Steele and Mr Rowe, about:

Whether Mr Rowe was substance affected when he came to work.

The extent to which Mr Rowe was familiar with the patient in question.

Whether the accepted practice was that the person who led the interview wrote up the notes.

[25] During the hearing, it was Mr Steele’s evidence that when he had alleged that Mr Rowe was substance affected, he had meant “hung over”. This was on the basis that “substance affected” included alcohol and other drugs. Having considered both Mr Steele and Mr Rowe’s contradictory evidence, I find that it is most probable that Mr Rowe was not substance affected when he came to work on the day in question. Mr Rowe’s evidence is accepted in this regard.

[26] In relation to the dispute in the evidence about how familiar Mr Rowe was in relation to the particular client, it was Mr Steele’s contention that Mr Rowe knew/had known the patient previously and so it was more appropriate for Mr Rowe to write up the notes. On the other hand, it was Mr Rowe’s evidence that he had had one contact previously (two weeks prior) with the patient but that Mr Steele was no less familiar with the patient for a number of reasons. There was nothing in the evidence that would lead me to doubt Mr Rowe’s statement that he had only been involved with this particular patient once previously (about two weeks prior).

[27] With respect to whether it was the accepted practice that the clinician who conducted the interview wrote up the notes, I accept Mr Bowditch’s evidence that it did not always make sense that the person most familiar with the patient would write up the visit. Rather, as two clinicians would attend a visit and would be part of the interaction, it would be a matter of who it made sense to write up the interview.

[28] It appears from the evidence that there was a professional disagreement between two clinicians regarding who should write up the notes from the home visit. Mr Steele made a professional judgement that it was not appropriate for him to write up the notes as it was not in the client’s best interests and that it was clinical best practice to maintain a continuum of care.

[29] On the other hand, Mr Rowe’s view was that he and Mr Steele were in the same position in relation to knowledge about the patient. Mr Rowe stated that Mr Steele ought to have read the patient’s notes prior to the interview, Mr Steele was present at the interview and so was aware of everything that had happened and they had had a clinical discussion after the interview.

[30] Mr Steele’s professional judgement is acknowledged and respected. However, a more senior clinician had made a different clinical judgement and had given Mr Steele an instruction to write up the notes. On the basis of the evidence, it can be said that the instruction was lawful and reasonable. In all of the circumstances, I find that Mr Rowe was entitled to request that Mr Steele write up the notes of the visit.

[31] However, Mr Steele refused to write up the notes and that was where Mr Steele left the matter. It was Mr Bowditch’s evidence that, where an RPN 3 disagreed with an RPN 4s decision, it was expected that the clinicians would have a discussion about the issues, rather than the RPN 3 saying no. Further, Mr Bowditch stated that it was expected that, if the RPN 3 still disagreed with the Level 4’s direction, the Level 3 would escalate it to the on call Registrar or Consultant or the Manager for resolution.

[32] There is no evidence before me that Mr Steele escalated the issue in order to get it resolved. Rather, he simply refused to write up the notes. It is my view that that course of action was not open to Mr Steele and that he should have either written up the notes or immediately escalated the issue for resolution. In simply refusing to write up the notes, I find that Mr Steele refused to follow a lawful and reasonable direction from his superior, Mr Rowe.

[33] In addition, I find that Mr Steele’s response to Mr Rowe’s complaint was hypercritical and out of proportion in relation to the content of Mr Rowe’s complaint. As noted above, Mr Rowe’s complaint about Mr Steele included the statement that “there is a real problem with Sean pulling his weight”. 188 What followed in Mr Steele’s response was the allegation that Mr Rowe was substance affected. Mr Steele’s email also gave a highly critical and negative description of how Mr Rowe presented when he came to work. The allegation that Mr Rowe came to work “substance affected” and the unflattering description of Mr Rowe when he came to work were unwarranted, unprofessional and uncalled for. It was Mr Steele’s evidence that he was upset by Mr Rowe’s complaint. However, it is my view that that does not excuse the damaging allegation or the highly negative and scathing comments that Mr Steele made about Mr Rowe’s presentation on coming to work.

(b) Final written warning

[34] As a result of the complaint made by Mr Rowe, Mr Steele was given a final written warning for serious misconduct for, amongst other things, refusing to follow an RPN 4 s instruction and for making a malicious and vexatious claim that Mr Rowe was substance affected. The final warning also stated that an RPN 4 was Mr Steele’s senior and so had authority to issue Mr Steele with an instruction and delegate work to him. In addition, the warning indicated that Mr Steele’s serious misconduct was contrary to St Vincent’s policies and Code of Conduct. 189

[35] It was Mr de Marte’s evidence that it was determined to issue Mr Steele with a final warning in accordance with St Vincent’s Discipline Policy. 190 The Discipline Policy provides that, amongst other things, a refusal to follow a reasonable directive is serious misconduct.191

[36] There is an enterprise agreement which covers St Vincent’s and Mr Steele and it is Clause 23.5 of the enterprise agreement that provides for a number of disciplinary steps from counselling to termination. A final written warning is only available in two circumstances. These are, firstly, in the event that the employee has been previously given a second written warning for that course of conduct within the preceding eighteen months (clause 23.5(d)).

[37] The second situation is as set out in clause 23.5(g) which is as follows:

“In case of misconduct warranting termination, either summarily or on notice, the Employer may issue the Employee with a final warning without following the steps in (a) to (f) above.”

[38] It was submitted by St Vincent’s that Mr Steele’s misconduct relating to the complaint by Mr Rowe was “misconduct warranting termination” but that St Vincent’s decided to issue a final warning instead of termination. This was on the basis of Mr Steele’s length of service and no previous warnings, which were taken into account. It was acknowledged by St Vincent’s that the enterprise agreement overrode the Hospital’s Disciplinary Policy.

[39] On behalf of Mr Steele, it was argued that St Vincent’s decision to issue Mr Steele with a final warning was in breach of clause 23.5 of the enterprise agreement. This was because the conduct complained about was not misconduct warranting termination. Therefore, it was argued that the final warning was not valid and should be disregarded.

[40] I am inclined to agree with the Applicant’s submissions on this point. Mr Steele’s refusal to follow Mr Rowe’s instruction and his allegation that Mr Rowe was substance affected are serious matters. However, in all of the circumstances, it is my view that they did not warrant termination of Mr Steele’s employment. Therefore, clause 23.5(g) was not available for St Vincent’s to issue Mr Steele with a final warning. As the warning was not validly issued under the terms of the enterprise agreement, I am unable to take into account that a final warning was given to Mr Steele on 13 December 2013, in determining whether or not there was a valid reason for the dismissal.

[41] However, Mr Steele was aware, as a result of the meeting held on 25 November 2013 to discuss Mr Rowe’s complaint, that RPN 4s hold the authority to give him instructions and to delegate him work.

(ii) Incident on 29 January 2016 - Ms McKeon

Witness evidence

Mr Steele

[42] Mr Steele gave evidence that:

In the early evening, he received a phone call from the client’s mother who said the client had arrived at her house. She said she was in the bathroom making the call because she did not want the client to know that she was making the call. This was because the client could get angry (violent) if he knew that she was calling mental health services. 192

The mother told him that she had been told by the two clinicians who had visited earlier that day to contact mental health services if the client turned up at her house so she was doing that. 193

He had asked the mother what the situation was. The mother said that the client was moving his belongings in and had asked to stay there for a few days. 194 There was no evidence of any violence that was occurring at that point in time or any threatened violence.195

He took all of the details he could from the mother. He knew the client and the mother and the situation. 196 He checked the database to see what was going on.197

He went through the processes of making a Triage referral based on the information at hand i.e. he would collect the information, assess the risk and refer to any of the previous notes on the online medical records database. The database showed the plan to be to locate and assess the client. The client was discharged earlier in the day at handover because they could not locate him. The plan on the whiteboard said that, if he was located, he should be assessed. As a client had been located, he would refer the client for assessment. 198

He made a phone call to CATT to assess the situation down there and to advise that the client had turned up at his mother’s house. As noted on the database, he was to make a referral for him to be assessed. 199 He told Ms McKeon that the mother was making the call whilst the client was out collecting his belongings from the car so that the client would not overhear her making the call.200

He was told by Ms McKeon that the client had been discharged and was no longer a CATT client and she was not accepting the referral. He was told by Ms McKeon to call the police (not 000) as arrangements had been made with the police to have the client brought in for assessment. 201

He had asked Ms McKeon which police stations but she was not sure. He assumed that the local police were Fitzroy and Collingwood and so he contacted those police stations and told them the situation. The police said that they had no information regarding any arrangements made with mental health services regarding this client. 202 He did not call 000 as Ms McKeon did not ask him to.203

He rang Ms McKeon back and stated that he had called the police and that there was no official record of any arrangement for the police to collect the client and that the police would attend if requested by mental health services. He told Ms McKeon that he thought that CATT should go out and assess the client. 204

Ms McKeon told him to call the mother back and tell her to call the police. He did not refuse. He explained to Ms McKeon that he had spoken to the mother and that the mother said that she did not have the opportunity to ring the police and she was afraid that the client would overhear her and he might become aggressive or angry. He said to Ms McKeon that he did not think that it was appropriate for the mother to call the police because the plan was to locate and assess. 205

When he said that this was not appropriate, Ms McKeon had directed him to call the police and direct them to go and collect the client from the house. He said to Ms McKeon that you cannot just ask police to apprehend the client for no apparent reason and that he would need to have information or a reason regarding why he should be picked up by the police. 206

He said to Ms McKeon that he did not have all the relevant material to hand and that he did not have any real grounds to send the police around there to pick the client up as yet, because the client had requested to move in. His mother was frightened that he might get angry but she had not expressed any concern that he was violent or aggressive at that time at all. He did not see a significant and immediate risk to safety as the client was not violent at the time. 207

He said that Ms McKeon suggested that he treat the situation as any other when a person calls Triage and there are threats to the safety of themselves or others. He said that there were no direct threats to the mother’s safety. The mother had been advised to call the mental health services which she did. The following day of the hearing, it was said that Ms McKeon did not suggest that he treat the situation as any other. He stated that he was treating it as any other referral. 208

He told Ms McKeon that the current plan was to locate and assess the client as was set out in the medical records online. He also said that he did not have any grounds to actually send the police around there and that it would be inappropriate for him to do so. When he said that he could not do this, Ms McKeon asked him to call the police and to tell them that he was someone else in order to get the police to go round. He declined to do this as Ms McKeon was directing him to break the law. He said that he could not facilitate admission from Triage because it was unprofessional. 209

He was aware that the client had been discharged from CATT and that Ms McKeon had said, in effect, that somebody needed to contact the police, either the mother or himself. He said that it was difficult, and quite inappropriate, for him to direct the police to collect someone from a house based on the little information that he had. 210

It was not a situation where he formed his professional judgement that it was not appropriate to send the police around but rather, it was part of the Mental Health Act. He could not send the police around based on the little information that he had in order to do that. It was stated that when one contacts the police, they ask for a lot of information regarding what the situation is. 211

He had said to Ms McKeon that he did not have the information at hand to organise admission of a patient from Triage. He said that he told Ms McKeon that it was imperative that CATT go out there with the police to assess the client and then, if required, to transport him into the Emergency Department. 212 He stated that the CATT team would organise or liaise with local police to attend with the clinicians and they would arrange a time that was mutually convenient between the clinicians and the police.213

He did not think that Ms McKeon had more information than he did. He thought that Ms McKeon could go out and get more information with the police. 214

He said that he could not direct the police because it was not appropriate and it would have been a breach of the Mental Health Act (assessments are to be in the least restrictive environment) just to send the police around based on the little information he had. This was said to be a fact and not his view and that Ms McKeon had directed him to make a decision that he could not legally do. It was stated that Ms McKeon had directed him to contact the police with very little information and he would look like a fool with the police. He said that he could not do it because he did not have enough information to do what Ms McKeon wanted him to do. 215

He denied that it had nothing to do with the Mental Health Act or that he thought it was not a good idea to call the police (made a personal professional decision) and so he overruled his superior who had directed him to call the police. It was stated that it was not just his personal opinion but that he had consulted with Mr Gilbert who was amazed that the plan was not being followed. 216

He said that Ms McKeon gave him an unreasonable direction which would have been in breach of the Mental Health Act and was not in line with the plan for the client already in the database. It was stated that all the information at hand pointed to following the plan that was developed that morning. It was said that the patient’s history of violence was far back with nothing recent. It was stated that he was not informed that the client was being violent at the time. 217

He had to refuse Ms McKeon’s direction to arrange for the police to pick up the client. He told Ms McKeon that this was because he had to refer it to CATT as that was his only option. 218

He denied that he refused twice to call the police as requested by Ms McKeon. He had refused to send the police out there once because Ms McKeon wanted him to send the police without any valid reason under the Mental Health Act. It was stated that the first time he had actually called both area police services. 219 It was stated that the police would only attend if the client was actually being violent at the time. The clinicians themselves called the police when violence was actually occurring.220

He denied that Ms McKeon had told him that, as he had decided that it was not a police response but a CATT referral, he needed to get further information. It was stated that there was a lot of information there on the database. 221

It was most likely that Ms McKeon told him that she would discuss it with her CATT colleagues. Mr Connor was with Ms McKeon at this time. 222 He denied that Ms McKeon had rung him back and told him that, in the opinion of the other CATT clinicians, this needed to go to the police due to the risk of violence to the mother.223

He told Ms McKeon that what she needed to organise was the police to go with the clinicians to assess the client. 224 He did not have all of the information that Ms McKeon was privy to as he was not at hand over. Further, Ms McKeon, being the CATT community clinician, would be the one attending with the police so it would be up to Ms McKeon to organise it with the police.225

Ms McKeon had asked him on three occasions to call the police. 226

So, he referred it back to CATT again. Ms McKeon told him to call the on call manager and discuss it with them. He declined to do so. He told Ms McKeon that, if she was unhappy with the referral, she could contact the on call manager herself. 227 He thought that the referral was pretty much straightforward and something they did all the time.228

He consulted with his colleagues (Mr Gilbert and Ms Abbott) who were in the room with him when the mother rang. 229 Ms Abbott had been at handover that day. He asked her the outcomes of the handover and she was brief but didn’t give too much information.230 Ms Abbott was not so much in agreement but she was able to sort of see that it was pretty much a straightforward referral. Ms Abbott was said to have been otherwise busy.231

Mr Gilbert

[43] At the time of the incident on 29 January 2014, Mr Gilbert was in Triage. He provided a written statement 232 but was not required to attend the hearing.

[44] Mr Gilbert’s statement was that:

He was only privy to Mr Steele’s side of any conversation.

The patient in question was placed on Triage alert at approximately 1:30 p.m. by Mr Hall. The Triage Alert record indicated that the patient still needed an assessment but that CATT have ceased their efforts until the patient is located.

He was aware that Mr Steele received a call from the patient’s mother at approximately 5.00 p.m. advising of his location.

He overheard Mr Steele having a conversation with police about attending at the patient’s location but the police had no reason to do this as the patient was not violent at the time.

He was aware that Mr Steele had conversations with Ms McKeon about referring the case back to CATT. He understood that this was rejected on the grounds that Mr Hall had made some arrangement with the police earlier that day that they would simply bring the patient to hospital if they became aware of his location. This information was not indicated on the Triage Alert entry.

From his Triage perspective, Mr Steele appeared to have valid grounds for referring the case to CATT. He was surprised that Mr Steele seemed to need to justify his rationale multiple times throughout a number of calls.

Ms Abbott

[45] Ms Abbott was part of both CATT handovers on 29 January 2014. She was working in Triage with Mr Gilbert and Mr Steele at the relevant time. Ms Abbott provided a written statement. 233

[46] It was Ms Abbott’s statement that:

Mr Steele had a brief conversation with the patient’s mother and then with Ms McKeon.

Following his conversation with Ms McKeon, Mr Steele asked her what she knew about the CATS plan for the patient following hand over, who was now at the mother’s house and the mother was apparently frightened.

She told Mr Steele that two clinicians had attended at the cousin’s place that morning. CATS attended with well numbered police (the patient was well known to them) due to high risk concerns for violence and the patient’s potential to be armed with weapons. The patient was not found and so it was decided to take the patient off the CATT board and be placed on Triage Alert instead.

She also told Mr Steele that Mr Hall had put a statewide alert on CMI (Client Management Interface) indicating that the patient required assessment as well as noting his risk of assault. Local police were also requested to bring the patient into the Emergency Department for assessment should they have contact with him. The family were also advised by Mr Hall to contact Triage or police.

She directed Mr Steele to either the MRO (Medical Records Online) or the Screening Register for further details and referred to Mr Hall’s notes. She could not say whether Mr Steele did this.

Mr Steele told her that he had referred it to CATT with some difficulty. He commented that Ms McKeon was unwilling to accept the referral.

Mr Steele and Mr Gilbert then spoke about Ms McKeon, commenting that she just needed to accept it and do her job and that this was typical of Ms McKeon.

Ms McKeon

[47] It was Ms McKeon’s evidence that:

On 29 January 2014 at 1:30pm, the patient was discharged and the mother was advised that, if the patient turned up, to ring Triage. 234

On that day, she was one of four CATT clinicians and Mr Steele was one of two Triage clinicians. 235

Mr Steele called to advise that the patient had turned up. She believed that Mr Steele told her that the mum was cowering in the bathroom. She did not accept Mr Steele’s evidence that he did not say that. Rather, Mr Steele had not documented that he had said that. 236

The usual process for a mother ringing in the bathroom, scared of her son who had arrived home and who had a history of violence, would be that the police would be called. They had had prior reports that the family was fearful of the patient. So, an assessment was warranted but in the first instance, the police needed to be called. It was said to be the role of the Triage person to call the police. 237

She told Mr Steele to ring the police. She could not recall whether Mr Steele did call the police. 238

She did not recall Mr Steele calling and saying that there was no plan in place for the police to pick up the client. 239

When Mr Steele said to her that the mother was ringing from the bathroom and was a bit scared of her son, she came to a different conclusion to Mr Steele - that the mother was in danger. It wasn’t anything that Mr Steele put to her. It was her opinion. 240 It was her view that the patient’s mother needed an emergency service response.241

She called the police for an emergency response at 6:10 p.m. 242

The clinician’s role was to assess the plan and assess the situation and make a decision/appropriate referral. 243 She and Mr Steele were both privy to the background information that had been handed over previously.244

The person is placed on Triage Alert for the Triage team to be aware that something was happening. 245

She could not recall but believed that she would not have told Mr Steele that there was an arrangement with the police to pick the patient up. 246

She did not know if Mr Steele had rung the police. She did not recall Mr Steele telling her directly that he had rung the two local police stations. 247

She did not recall but did not believe that she would have said to ring the local police stations. She would have said to ring 000 for an emergency response for the mother. 248

She could not recall whether Mr Steele had said that he could not ask the police to pick somebody up without justification. 249

She could not recall exactly whether Mr Steele then said to her that the client was on Triage Alert and that the appropriate referral was to CATT; that the client needed assessment and that, if there were any issues of aggression, she should liaise with the police herself. 250

The client was one of the people highlighted at handover at 2.00 p.m. for Triage to be aware that there was background information and to take account of all of the information and make a decision. 251

It was Mr Steele’s role to assess the situation and he made a decision that she disagreed with. 252 There was a difference of opinion between herself and Mr Steele about the appropriate way to handle this case.253

There was a debate between herself and Mr Steele as to the appropriateness of Mr Steele’s decision to refer. 254

She was the RPN Grade 4 and her opinion/decision should have prevailed as Mr Steele was a Level 3. That is the system. RPN 3s and 4s are very senior, well experienced clinicians and the skill set between them is not that different. 255

As a Level 4, she believed it was her decision. 256

It was her opinion that the role of the Triage person was to do a welfare check and that the mother required emergency services which overrode a referral to the CAT team with police supporting the CAT team. She believed that the mother was at risk and a welfare check was required by emergency services (police). 257

She asked Mr Steele to gather some more Triage information. 258

She knew the patient in question. 259

She could not recall saying to Mr Steele, after he had come back and said he had rung the police, to call the police again. 260 She said it was incorrect that she had told Mr Steele to ring the police and tell them he was somebody else.261

It was incorrect that she did not want the referral. 262 She could not recall whether she had told Mr Steele that if he had a problem with his referral, he could refer it to the on call manager.263

After she and Mr Steele had a discussion, as noted by Mr Steele on his Screening Register and her belief was that the mother needed an emergency response, she then called the police. The situation played out as reflected in the documents. 264 The safety of the mother was paramount to the assessment of the patient.265

She and her colleague met the police at the address and the police took the client to the Emergency Department where he was assessed. 266 The transport to the hospital via the police form was completed, otherwise the police would not have taken the patient.267

She made a complaint to Mr Bowditch that evening around her dissatisfaction with Mr Steele’s triaging as Mr Steele knew the information he would need to gather for a comprehensive Triage assessment. There was not enough detail in the triaging process to provide a comprehensive Triage assessment. She had asked Mr Steele for further information about whether the client was drug affected, what the family were saying etc. 268

Mr Steele’s Screening Register did not give enough detail. 269

If Mr Steele had an issue with her request as the Level 4, Mr Steele was within his rights to speak to Mr Bowditch. 270

Her community notes were written in retrospect, the next morning, on 30 January 2014 but the progress notes regarding the Emergency Department admission were written on the night in the Emergency Department. 271

When she spoke to the mother at 6:05 p.m., the mother was outside the house on the street. Mr Steele’s notes indicated that, at 5:30 p.m., the mother was in the bathroom. 272

It was a busy night and it was not the only thing that the CAT team was dealing with. 273

Mr Anson was rostered on with her that night as was Mr Connor and Ms Klanjcic. The other staff in the office heard her conversations with Mr Steele. 274 She discussed the situation with her colleagues.275

She remembered two conversations with Mr Steele. She had picked up the phone twice and Mr Steele was on the other end of the phone. 276 The first time she had just happened to pick up the phone. The second time, when the phone rang again, she knew it would be Mr Steele.277 The only logical explanation for the second call was that on the first call, she had asked Mr Steele to do something else and that he had done it and had come back to her with a response.278

[129] I have carefully considered this question. Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Steele. This is because, in my view, the relationships between Mr Steele and his employer and Mr Steele and some of his colleagues (as represented by the scum sucking dogs incident) are irreparable. In addition, Mr Steele had made complaints about bullying and harassment of him by some of his colleagues and in response to Ms McKeon’s complaint about him, Mr Steele then made his own complaint in relation to Ms McKeon.

[130] Also, I am not convinced that Mr Steele understands completely the concerns that his employer (and possibly his fellow employees) had with his conduct in the workplace. This was demonstrated in an exchange between the Commission and Mr Steele as follows:

“THE COMMISSIONER: That you made a decision that from your perspective it was in the better interests of the client if you did not write up the notes as requested by Mr Rowe?---It was best indicated for the client that Mr Rowe wrote the notes.

Yes, but that was your decision and you had a request from somebody who is senior to you to do it. You made a judgment that you weren't going to do that because your judgment was that it wasn't in the best interests of the client?---That's right.

So you said no to your superior?--I said no because it was best indicated, yes.

No, no, sit with “no”. That's the point. The fact that you made a decision off your own bat, doing the balancing thing that we have just discussed, to ignore the request from an RPN4 to write up the notes?---If you put it in that way, then yes, I would have to say that I did.

And that's where the organisation seems to be coming from. That’s their complaint with you in terms of Mr Rowe and their complaint with you in terms of the conversation with Ms McKeon. So that's the frame, all right. Whether it's right or wrong, that's what it is?--Okay.
Okay?--I think so.

I just need you to understand that because I don't think you have been getting that bit?---No, I haven't, Your Honour, and I don't understand it. I keep getting asked the same question over and over in different ways.

That's why I'm being quite interventionist because it seemed to me I didn’t want to hear it again, you didn't want to say it again, Mr Rinaldi didn't want to ask you again. I'm going to dream about this tonight. So you needed to understand what St Vincent's are on about. I'm translating?--Okay. Hopefully, I've got my head around it. Hopefully.

I mean I know it's not the way you have viewed it up until now and so since 20 - well, I suspect you haven't viewed it like that since 2013, but does it make sense, what I'm saying?--I can't understand why I should blindly follow direction even though it's wrong.

Yes, but you're making the judgment that it's wrong and that against a senior - your more senior colleague saying, “Please do X”, you're making a personal judgment that it's wrong?--That's professional judgment.

Yes, but it's also a personal judgment because you've got a superior who's saying, “I would like you to do X”, and you're making your own judgment about whether you will or you won't?--Yes.

And that's not - it's not about being a drone. You've said you don't follow things like a drone, but that's not what the hospital is saying. It's just the hospital is saying that you were asked to do something by a superior, by the RPN4, who is more senior to you and you made your own decision that you weren't going to follow the direction from somebody more senior to you?--In this case, yes.

What they're saying is that in this case, that wasn't a decision that you had the ability to make?--I can beg to differ, but if that's what they say - - -

Well, they are.

MR ADDISON: So I guess that's where we come to now. It is a personal professional judgment and your view was, “My personal professional judgment of what’s best for the patient overrides what I am directed by my superior”?---My professional judgment, yes.” 415

Compensation

[131] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[132] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[133] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 416 (Haigh). In Haigh, the Full Bench also referred417 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket418 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[134] Neither party made submissions in relation to this subsection of the Act.

[135] There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.

Section 392(2)(b) - Applicant’s length of service

[136] Mr Steele’s length of service with St Vincent’s was from 29 April 2002 until 25 March 2014 – a period of 11 years and 11 months.

Section 392(2)(c) - remuneration likely to have received

[137] It was submitted on behalf of Mr Steele that Mr Steele’s employment would have continued for at least a further five years. 419 On the other hand, St Vincent’s contended that, the way things were going in relation to clashes with superiors and clashes with peers, Mr Steele would have remained in employment for a relatively short period, perhaps a year.420

[138] In all of the circumstances of this matter, I have formed the view that, had Mr Steele not been dismissed, it is likely that his employment would have continued for a further year. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration likely to have been received would have been one year.

[139] It appears that the Commission is unable to determine the provisional amount as the Commission does not seem to have been provided with Mr Steele’s rate of pay at the time of his dismissal.

[140] The parties are requested to provide the Commission with an agreed figure for one year’s pay for Mr Steele by 24 August 2016.

Section 392(2)(d) - efforts to mitigate loss

[141] Mr Steele has made efforts to mitigate his loss. It was Mr Steele’s evidence that he began working full-time but on a casual basis in Western Australia, around 25 May 2014, two months after his dismissal on 25 March 2014. It was Mr Steele’s evidence that he worked in Western Australia for a period of about 18 months.

Sections 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[142] It was not disputed that Mr Steele was paid five weeks in lieu of notice at the time of his dismissal. This will be counted in determining the remuneration earned.

[143] Mr Steele’s evidence was that, when he worked in Western Australia, he was paid a casual loading which put him on a higher rate of pay than when he was at St. Vincent’s. Mr Steele made efforts to find the relevant documentation regarding his rate of pay and the amount he earned whilst in Western Australia. If this information was ultimately required, time was sought on behalf of Mr Steele, to provide it.

[144] There was also a dispute between the parties as to whether the casual loading should be included in determining the amount of remuneration earned.

[145] Given the lack of information regarding Mr Steele’s remuneration whilst in Western Australia, and the issue in relation to the casual loading, the Commission is not in a position to make a finding in relation to this requirement.

[146] The Applicant is required to provide the total remuneration earned whilst in Western Australia, including the appropriate documentation to support this, together with submissions in relation to the casual loading issue, by 10 August 2016.

[147] The Respondent is required to provide submissions in response by 24 August 2016.

Section 392(2)(g) - other matters

[148] On behalf of Mr Steele, it was submitted that any deduction for earnings, deduction for failure to mitigate or deduction for misconduct should be applied before application of the statutory cap. Further, the deduction for contingencies should be no more than 25% for any prospective period. 421

[149] On the other hand, St Vincent’s argued that account should be taken of Mr Steele’s misconduct which contributed to the decision to terminate his employment. In addition, it was submitted that the Commission ought to take into account the inordinate amount of time between dismissal and the hearing which was said to be no fault of St Vincent’s. This was because, in the ordinary course of things, there were discussions between the parties between Mr Steele’s dismissal and his application being made and an in principle agreement was reached between St Vincent and Mr Steele. It was stated that this had been communicated to the Commission by Mr Steele’s representative at the time. It was the understanding of St Vincent’s that Mr Steele had accepted the agreement. However, when the Commission was following up inactive matters, St Vincent’s was advised that the matter was enlivened. 422

Section 392(3)

[150] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order.

[151] As the reason Mr Steele was dismissed was for serious misconduct, the Commission is required to reduce the amount that would otherwise be ordered. I propose to reduce the amount by 50%.

Contingencies and taxation

[152] There were no submissions from either party in relation to either of these issues. As the anticipated period of employment has well passed, it is not proposed to make a deduction of for contingencies.

Section 392(4) - shock or distress

[153] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Steele.

[154] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.

[155] Once the information and submissions requested from the parties is to hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement.

[156] A further decision, and order, in regards to compensation, will be issued within two weeks of receipt of the information.

Appearances:

M Addison of Maddison & Associatesfor the Applicant

M Rinaldi of Counsel for the Respondent

Hearing details:

2015.

Melbourne:

November 16.

2016.

Melbourne:

February 23, 24, 25;

May 3, 4.

1 Exhibit R10 at Attachment MDM 23

2 Ibid

3 Exhibit A1 at Attachment SS 6

4 Ibid

5 Transcript PN 1517 and 6379

6 Ibid PN 728

7 Ibid PN 731

8 Ibid PN 733 - 734

9 Ibid PN 738

10 Ibid PN 742 and 750 - 752

11 Ibid PN 756

12 Ibid PN 757, 1341 and 1388

13 Ibid PN 1389

14 Ibid PN 1390 - 1391

15 Ibid PN 757, 808, 825 - 830 and 1325

16 Ibid PN 757 and 1325

17 Ibid PN 1429 - 1431

18 Ibid PN 833

19 Ibid PN 834 - 835

20 Ibid PN 757

21 Ibid PN 757

22 Ibid PN 1435 - 1437

23 Ibid PN 757, 836, 1422 - 1426 and 1437

24 Ibid PN 837 and 840

25 Ibid PN 757, 842, 1438 - 1444, 1452 - 1453 and 1456 - 1459 and Exhibit A1 at paragraph 4

26 Ibid PN 841

27 Ibid PN 757 and 842

28 Ibid PN 842, 847 and 1426

29 Ibid PN 851, 853 and 1463 - 1465

30 Ibid PN 853

31 Ibid PN 849 - 850 and 1329

32 Ibid PN 1433

33 Ibid PN 845

34 Ibid PN 847

35 Ibid PN 848

36 Ibid PN 970 - 971, 1398 - 1399 and 1523 - 1524

37 Ibid PN 861

38 Ibid PN 1400 - 1404

39 Ibid PN 864 - 866

40 Ibid PN 757, 859, 1577 and 1583

41 Ibid PN 757

42 Ibid PN 1554 and 1558

43 Ibid PN 1555

44 Ibid PN 859

45 Ibid PN 757

46 Ibid PN 843

47 Ibid PN 757

48 Ibid PN 757

49 Ibid PN 775 - 777 and 779 - 780

50 Ibid PN 779

51 Ibid PN 781 - 782 and 1379 - 1380

52 Ibid PN 783

53 Ibid PN 1381 - 1383

54 Ibid PN 784 - 788, 1405, 1408 and 1412 - 1413

55 Ibid PN 789, 808, 1406 - 1407 and 1414

56 Ibid PN 1409 - 1418

57 Ibid PN 1419 - 1421

58 Ibid PN 822 - 824

59 Ibid PN 973 and 1525

60 Ibid PN 1522 - 1537

61 Ibid PN 1525

62 Ibid PN 1547 - 1553

63 Ibid PN 1294 - 1297

64 Ibid PN 1299 - 1302

65 Ibid PN 1303 and 1427

66 Ibid PN 1306

67 Ibid PN 1307 - 1308

68 Ibid PN 1304 - 1305 and 1427 - 1428

69 Ibid PN 1309 - 1311, 1340 and 1448

70 Ibid PN 1314 - 1315

71 Ibid PN 1319

72 Ibid PN 1445 - 1447

73 Ibid PN 1470 and 1477

74 Ibid PN 1480 - 1482

75 Ibid PN 1483

76 Ibid PN 757, 852, 854 - 855, 857, 1321, 1324 and 1448

77 Ibid PN 1322

78 Ibid PN 1347 - 1367, 1371 - 1372 and 1586

79 Ibid PN 1374 - 1375 and 1385

80 Ibid PN 867

81 Ibid PN 869

82 Ibid PN 1395 - 1397 and 1577

83 Ibid PN 1584 - 1585

84 Ibid PN 1560 - 1564

85 Ibid PN 1588 - 1610, 1639 - 1640 and 2165 - 2167

86 Ibid PN 1647 - 1690, 2168-2172 and 2216 - 2217 and Exhibit A1 at paragraphs 3 and 6

87 Ibid PN 2195, 2199 and 2215

88 Ibid PN 1692 - 1696

89 Ibid PN 4372 - 4373

90 Ibid PN 4414

91 Ibid PN 4376 - 4379 and 4423

92 Ibid PN 4391 - 4392

93 Ibid PN 4396 - 4399 and Exhibit R10 at MDM 3

94 Ibid PN 4401 - 4403

95 Ibid PN 4404 - 4407

96 Ibid PN 4415

97 Ibid PN 4416

98 Ibid PN 4418 - 4422

99 Ibid PN 4426

100 Ibid PN 4436

101 Ibid

102 Ibid PN 4457 - 4458

103 Ibid PN 4339 - 4440, 4452 and 4465 - 4466

104 Ibid PN 4442 and 4449 - 4450

105 Ibid PN 4445 - 4446

106 Ibid PN 4451 - 4452

107 Ibid PN 4455 - 4456

108 Ibid PN 4463 - 4464

109 Ibid PN 4467 - 4469

110 Ibid PN 4471 - 4474

111 Ibid PN 4475

112 Ibid PN 4476 - 4478

113 Ibid PN 4487 - 4489 and Exhibit R7 at Attachment PR 1

114 Ibid PN 4490

115 Ibid PN 3315 - 3319

116 Ibid PN 3306 and 3371

117 Ibid PN 3331

118 Ibid PN 3333

119 Ibid PN 3334 and Exhibit R5 at paragraph 37

120 Ibid PN 3374

121 Ibid PN 3396

122 Ibid PN 3415

123 Ibid PN 3455 - 3459

124 Ibid PN 3463 and Exhibit R5 at paragraph 37

125 Ibid PN 3463

126 Exhibit R5 at paragraph 34

127 Transcript PN 2980 - 2983

128 Ibid PN 2985 - 2986

129 Ibid PN 2988 and 4686 - 4688

130 Ibid PN 3050 - 3052

131 Ibid PN 3054

132 Ibid PN 3056 - 3057

133 Ibid PN 3058 - 3061, 3183 and 3070

134 Ibid PN 3066 - 3067

135 Ibid PN 3077

136 Ibid PN 3180 - 3183

137 Ibid PN 3376 - 3379

138 Ibid PN 3395

139 Ibid PN 3398 - 3409

140 Ibid PN 3198 - 3209 and Exhibit R5 at paragraph 21

141 Ibid PN 3215 and ibid at paragraph 22

142 Ibid PN 3610 - 3616

143 Ibid PN 3217 and Exhibit R5 at paragraph 24

144 Ibid PN 3219

145 Ibid PN 3219 - 3220 and Exhibit R5 at paragraph 27

146 Ibid PN 3231 - 3244 and 3247

147 Ibid PN 3268 - 3275 and Exhibit R5 at paragraph 29

148 Exhibit A2 and Exhibit R6

149 Transcript PN 4658

150 Ibid PN 3578, 3580 and 3604 - 3606

151 Ibid PN 3581 and 3584 - 3585

152 Ibid PN 3597

153 Ibid PN 3603

154 Ibid PN 3604 - 3605

155 Ibid PN 3621 - 3622

156 Ibid PN 6263

157 Ibid PN 6264

158 Ibid PN 6264 - 6265

159 Ibid PN 6265

160 Ibid PN 6266

161 Ibid PN 6267

162 Ibid PN 6268

163 Ibid PN 6269

164 Ibid PN 6270

165 Ibid PN 6275

166 Ibid PN 6276 - 6277

167 Ibid PN 6279

168 Ibid PN 6651 - 6652

169 Ibid PN 6653

170 Ibid PN 6277

171 Ibid PN 6278

172 Ibid PN 6279 - 6280

173 Ibid PN 6280

174 Ibid PN 6280 - 6282

175 (1959) 101 CLR 298

176 Transcript PN 6283

177 (1995) 62 IR 371

178 [2010] FWA 3497 at [30]

179 O’Connor v Palmer and Others (No I) (1959) 1 FLR 397

180 Ibid at page 401 and Transcript PN 6293

181 Transcript PN 6294 and 6298

182 Ibid PN 6300

183 Ibid PN 6448 - 6453

184 Ibid PN 6454 - 6455

185 Ibid PN 6456 - 6457

186 Ibid PN 6458

187 Ibid PN 6458 - 6459

188 Exhibit A1 at Attachment SS 4

189 Ibid at Attachment SS 6

190 Exhibit R10 at Attachment MDM 22

191 Ibid

192 Transcript PN 1033, 1037, 1039, 1057 - 1058, 1820, 1822, 2147 - 2151 and 2718

193 Ibid PN 1034 and 1821

194 Ibid PN 1034

195 Ibid PN 2719

196 Ibid PN 1034

197 Ibid PN 1058

198 Ibid PN 1035 - 1036, 2671 - 2674 and 2706 - 2714

199 Ibid PN 1037

200 Ibid PN 1815 - 1818

201 Ibid PN 1038, 1065 - 1066, 1080, 1165 - 1166, 1823, 1873, 1958, 2433 - 2434, 2441 - 2442, 2445 and 2450 and Exhibit A1 at paragraph 10

202 Ibid PN 1038, 1067, 1167 - 1168, 1827 - 1837, 1874 - 1875, 2436, 2440 and 2446 - 2448

203 Ibid PN 1838, 2455 and 2459

204 Ibid PN 1039, 1067 - 1068 and 2451 - 2452 and Exhibit A1 at paragraph 10

205 Ibid PN 1039, 1823 - 1826 and 1851 - 1852

206 Ibid PN 1040, 1854 - 1855, 1882, 1884 - 1885 and 2550

207 Ibid PN 1040 and 2152

208 Ibid PN 1857 - 1858 and 1945 - 1947

209 Ibid PN 1041, 1069, 1097, 1948 – 1949, 2135 – 2137, 2157 - 2158 and 2467 - 2468 and Exhibit A1 at paragraph 11

210 Ibid PN 1860 - 1862

211 Ibid PN 1885 - 1886

212 Ibid PN 1887

213 Ibid PN 2640

214 Ibid PN 2496 - 2497

215 Ibid PN 1888 - 1894, 1950, 1958, 1960 - 1968, 1988, 2469, 2595, 2597 and 2603

216 Ibid PN 1969 and 1977 - 1980

217 Ibid PN 1981 - 1983, 1989, 2140 - 2144 and 2504

218 Ibid PN 1993 - 1995

219 Ibid PN 2004 and 2007

220 Ibid PN 2593 and 2635 - 2637

221 Ibid PN 1996 - 1998 and 2001 - 2002

222 Ibid PN 1158 - 1162 and 1951 - 1954

223 Ibid PN 1866 - 1872 and 2557 - 2561

224 Ibid PN 1955

225 Ibid PN 1986

226 Ibid PN 2556

227 Ibid PN 1042, 1054 - 1055, 2002 and 2160 and Exhibit A1 at paragraphs 11 and 16

228 Ibid PN 1055

229 Ibid PN 1058 - 1059, 1098 and 1157

230 Ibid PN 1035

231 Ibid PN 1060

232 Exhibit R10 at Attachment MDM 15

233 Ibid at Attachment MDM 17

234 Transcript PN 4835 and 4837

235 Ibid PN 4838

236 Ibid PN 4844 - 4845, 4951 and 5293 and Exhibit R9 at paragraph 9

237 Ibid PN 4848

238 Ibid PN 4849 - 4853, 5128 and 5081

239 Ibid PN 4854

240 Ibid PN 4869 - 4870 and 5222

241 Ibid PN 4857 and 5023

242 Ibid PN 4851, 5068 - 5069 and 5080

243 Ibid PN 4857 - 4859 and 4862

244 Ibid PN 4951

245 Ibid PN 4861

246 Ibid PN 4871

247 Ibid PN 4872, 5129 - 5131 and 5133

248 Ibid PN 4884 and 4951 - 4952 and Exhibit R9 at paragraph 10(b)(i)

249 Ibid PN 4896 - 4899

250 Ibid PN 4900, 4913 and 4916

251 Ibid PN 4927 - 4929 and 5240 - 5241

252 Ibid PN 4930 - 4931

253 Ibid PN 5297 - 5299

254 Ibid PN 4932

255 Ibid PN 4828 - 4830 and 4933 - 4935

256 Ibid PN 4936

257 Ibid PN 5079 and Exhibit R9 at paragraph 10(a)

258 Ibid PN 4950 and 4975

259 Ibid PN 4963

260 Ibid PN 4994

261 Ibid PN 4995 and Exhibit R9 at paragraph 10(c)

262 Ibid PN 4996

263 Ibid PN 4997 and Exhibit R9 at paragraph 10(c)(iv)

264 Ibid PN 4999 and 5132

265 Ibid PN 5000 - 5002 and 5207

266 Ibid PN 5003 and 5070

267 Ibid PN 5074 and 5078

268 Ibid PN 5207 - 5127 and 5025 - 5027

269 Ibid PN 5217

270 Ibid

271 Ibid PN 5031 - 5039

272 Ibid PN 5052 - 5053, 5056 and 5061 - 5064

273 Ibid PN 5133

274 Ibid PN 5175

275 Ibid PN 5162, 5175 and 5296

276 Ibid PN 5170 and 5174 - 5175

277 Ibid PN 5174 - 5175

278 Ibid PN 5181

279 Ibid PN 5203

280 Ibid PN 5205 - 5207

281 Ibid PN 5222 - 5223

282 Ibid PN 5301 - 5304

283 Ibid PN 5306 - 5307 and 5330 - 5331

284 Ibid PN 5319

285 Ibid PN 5310

286 Ibid PN 5305 and 5346 - 5347

287 Exhibit R9 at Attachment MM 3

288 Transcript PN 5349 - 5350

289 Exhibit R9 at paragraph 11

290 Exhibit R8

291 Exhibit R10 at Attachment MDM 16

292 Exhibit R9 at Attachment MM 5 and Transcript PN 3658, 3670 - 3672 and 3676

293 Exhibit R1 and Transcript PN 3660 - 3662 and 3673 - 3675

294 Transcript PN 3675

295 Ibid PN 3683 - 3686 and Exhibit R5 at paragraph 43

296 Ibid PN 3704 - 3706

297 Ibid PN 3716

298 Ibid PN 3686 - 3687 and 3741

299 Ibid PN 3780 - 3792

300 Ibid PN 3741 - 3744 and Exhibit R5 at paragraph 43

301 Ibid PN 3745 - 3746

302 Ibid PN 3748 - 3759

303 Ibid PN 3763 and 3766

304 Ibid PN 3767 - 3769, 3794 and 4095 - 4096

305 Ibid PN 3700, 4100, 4102 and 4255

306 Ibid PN 3793 and 3810

307 Ibid PN 3808

308 Ibid PN 3811 - 3855 and 3898

309 Ibid PN 4017 - 4019

310 Ibid PN 4025 - 4026

311 Ibid PN 4057 - 4058 and 4233 - 4241

312 Ibid PN 4063 - 4066

313 Ibid PN 4150 - 4151 and Exhibit R5 at paragraph 47

314 Ibid PN 4167 - 4173

315 Ibid PN 4174 and 4177 and Exhibit R5 at paragraph 49

316 Ibid PN 4246 - 4247

317 Ibid PN 4248

318 Exhibit R5 at paragraph 52

319 Transcript PN 6302 - 6303

320 Ibid PN 6303

321 Ibid PN 6304

322 Exhibit R9 at Attachment MM 5

323 Transcript PN 6305 - 6307

324 Exhibit R9 at Attachment MM 2

325 Transcript PN 6307

326 Ibid PN 6307 - 6308

327 Ibid PN 6309

328 Ibid

329 Ibid PN 6310

330 Ibid PN 6311

331 Ibid PN 6312

332 Ibid PN 6313

333 Ibid PN 6314

334 Ibid PN 3616 - 3618

335 Ibid PN 6319 and 6322

336 Ibid PN 6323

337 Ibid PN 6325

338 Ibid PN 6654

339 Ibid PN 6666 - 6668

340 Ibid PN 6326

341 Ibid PN 6372 and Exhibit R11 at paragraph 2

342 Ibid PN 6373 - 3675 and 6388 and ibid at paragraphs 3 - 4

343 Transcript PN 6378

344 Ibid PN 6380 - 6384

345 Ibid PN 6385

346 Ibid PN 6386

347 Ibid PN 6385 - 6387

348 Ibid PN 6385

349 Ibid PN 6388 - 6389

350 Ibid PN 6390

351 Ibid PN 6391 - 6393

352 Ibid PN 6395 - 6396 and 6401

353 Ibid PN 6407 and 6412 - 6417

354 Ibid PN 6397

355 Ibid PN 6398 - 6399

356 Ibid PN 6403

357 Ibid PN 6409

358 Ibid PN 6411

359 Ibid PN 6507 - 6513

360 Ibid PN 6513 - 6515

361 Ibid PN 6517 - 6519

362 Ibid PN 6533

363 Ibid PN 6537

364 Ibid PN 6545 - 6547

365 Ibid PN 6581 and 6583

366 Ibid PN 6548 - 6563

367 Ibid PN 6588

368 Ibid PN 6589

369 Ibid PN 6590

370 Ibid PN 6600

371 Ibid

372 Ibid PN 6417

373 Ibid 6418 - 6420

374 Ibid PN 6421 - 6424

375 Ibid PN 645 - 6427

376 Ibid PN 6428

377 Ibid PN 6430 - 6432

378 Ibid PN 6433 - 6434

379 Exhibit R9 at MM 2

380 Exhibit A1 at Attachment SS 8

381 Exhibit R9 at Attachment MM 4

382 Ibid

383 Ibid at Attachment MM 3

384 Ibid at Attachment MM 5

385 Ibid at Attachment MM 2

386 Ibid at Attachment MM 3

387 Ibid at Attachment MM 4

388 Exhibit R10 at Attachment MDM 15 at paragraph 4

389 Ibid at Attachment MDM 17

390 Ibid at Attachments MDM 10 and 12

391 Exhibit R8

392 Exhibit R10 at Attachment MDM 17

393 Ibid at Attachment MDM 19

394 Exhibit R9 at Attachment MM 5

395 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraphs 28 - 30

396 Exhibit A1 at Attachment SS 7

397 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 16 - 18, Exhibit R11 at paragraph 9 and Transcript PN 6619 - 6621

398 Exhibit A1 at Attachment SS 7

399 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 32, Respondent’s Outline of Submissions, dated 6 November 2015, at paragraphs 19 - 20, Exhibit R11 at paragraph 9 and Transcript PN 6621

400 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 33, Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 21 and Exhibit R 11 at paragraph 9

401 Exhibit R10 at Attachment MDM 8

402 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 34 - 36

403 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraphs 22 - 23

404 Transcript PN 970 and 1523

405 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 24

406 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraphs 40 - 47 and Transcript PN 6326 - 6327

407 (1976) 11 ALR 599 at 608-9

408 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 26, Exhibit R11 at paragraph 2 and Transcript PN 6622

409 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 26, Exhibit R11 at paragraph 10 and Transcript PN 6622

410 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 27

411 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 49

412 Transcript PN 6328

413 Ibid PN 6328 - 6335

414 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraph 28, Exhibit R11 at paragraph 12 and Transcript PN 6623 - 6625 and 6627

415 Transcript PN1467 - 1480

416 [2014] FWCFB 236

417 Ibid at paragraphs [10] – [12]

418 (1998) 88 IR 21

419 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 50

420 Transcript PN 6629 - 6630

421 Applicant’s Outline of Submissions, dated 12 October 2015, at paragraph 50

422 Respondent’s Outline of Submissions, dated 6 November 2015, at paragraphs 29 - 30

Printed by authority of the Commonwealth Government Printer

Sean Steele v St Vincent's Hospital (Melbourne) Limited

[2016] FWC 4569

19 JULY 2016

DECISION