Wyndham Lodge Nursing Home Inc v Reader

[1995] IRCA 448

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of JUDICIAL REGISTRAR - nature of review - UNLAWFUL TERMINATION - termination not for a VALID REASON - PROCEDURAL FAIRNESS - Employer failed to sufficiently formulate allegations or afford the employee an adequate opportunity to be heard.

Industrial Relations Act 1988 ss 170DE, 170DC, 170EA, 170EDA

Association of Professional Engineers, Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418, 425-426

Macs Foods v McLeish, WIR 94/305, 12 July 1995, Spender J, unreported, 7

Byrne v Australian Airlines Ltd (1994) 47 FCR 300, 332

Mohazab v Dick Smith Electronics P/L NI 0327R/94, 1 June 1995, Wilcox CJ, unreported, 6-7, 9

Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, 248, 252

Jason Scott Johns v Gunns Limited TI 148R of 1994, 18 May 1995, Northrop J, unreported, 33

Janice Shackley v Australian Croatian Club Ltd AI 136 of 1994, 6 September 1995, Moore J, unreported, 18

No. VI 0837R of 1994

CECILE ANN READER v WYNDHAM LODGE NURSING HOME INC

Marshall J
Melbourne
8 September 1995

IN THE INDUSTRIAL RELATIONS COURT            )  

)
OF AUSTRALIA  )  
  )  No. VI 0837R of 1994
VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  CECILE ANN READER

Applicant

AND:  
  WYNDHAM LODGE NURSING HOME INC

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       8 September 1995

ORDER

THE COURT ORDERS THAT:

1.The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 January 1995 is set aside.

2.It is declared that the termination of the employment of the applicant contravened ss 170DC and DE of the Act.

3.The respondent shall appoint Cecile Reader to the position in which she was employed immediately before the termination.

4.The employment of Cecile Reader is deemed to have been continued for all purposes from 13 June 1994 to the date the final order is made in this matter.

5.The matter is adjourned to the directions hearing list on 2 October 1995 to enable the parties to calculate, in accordance with the reasons for judgment, the amount of remuneration lost by the applicant because of the termination of her employment and, specifically, the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate.

NOTE: If agreement is reached, a consent order can be made pursuant to Order 35 rule 10.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT            )  

)
OF AUSTRALIA  )  
  )  No. VI 0837R of 1994
VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  CECILE ANN READER

Applicant

AND:  
  WYNDHAM LODGE NURSING HOME INC

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       8 September 1995

REASONS FOR JUDGMENT

BACKGROUND

On 27 June 1994 the applicant lodged in the Registry an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) in which she sought remedies including reinstatement and compensation as a result of the termination of her employment by the respondent. An affidavit in support of the application was filed on 29 June 1994. It disclosed that the applicant was dismissed on 13 June 1994. It also disclosed that she had been employed as a registered nurse and that the terms and conditions of her employment were governed by the Nurses (Victorian Health Services) Award 1992, an award of the Australian Industrial Relations Commission (“the Commission”).

On 22 July 1994 the respondent filed an affidavit in opposition to the application.  It was sworn by Ms Anne Canterbury, the President of the Committee of Management of the respondent.  The final paragraph of that affidavit said that:-

“The reason for the Respondent’s decision to terminate the Applicant’s employment was an assault on a patient.”

On 9 August 1994, Registrar Agnew made an order that the matter be referred to the Commission for conciliation.  Commissioner Mahon confirmed on 4 November 1994 that the Commission had been “unable to settle this matter by conciliation”.  The application was heard by Judicial Registrar Tomlinson on 7, 8 and 9 December 1994.  The Judicial Registrar dismissed the application.  In her decision of 13 January 1995, she found that the applicant had been properly dismissed without notice for grave misconduct.

The applicant moved the Court on 27 January 1995 for orders including an order that the Court review the exercise of power by the Judicial Registrar.  The review application was heard by the Court on 29 and 30 August 1995.  At the outset of the hearing, the Court was advised that the parties were agreed that the exhibits before the Judicial Registrar and the transcript of the hearing before her, should be received as evidence in the review and that no additional evidence would be called.

THE NATURE OF A REVIEW

A review is conducted as a hearing de novo.  As Moore J said in Association of Professional Engineers, Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418, 425-426:

“... In such a hearing the parties are not bound to or limited by the evidence before the judicial registrar and may adduce evidence that was not put to the judicial registrar because either a party neglected to call it or it concerns events occurring after the hearing.  The judge must decide the matter by reference to evidence led in the review and independently of the decision of the judicial registrar.”

His Honour, Moore J also made it clear that a review is not to be conducted as if the hearing before the Judicial Registrar had never occurred.  In this context, and given the consent of the parties, it was entirely appropriate for the parties to seek to have the Court treat the evidence before the Judicial Registrar as evidence before the Court on the review.  See also Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, 248 per Wilcox CJ.

VALID REASON - SECTION 170DE

Counsel for the respondent, Mr Lacy, submitted that the applicant’s employment was terminated by the respondent for a valid reason.  It was submitted that the applicant had assaulted a resident at the nursing home (“the home”) conducted by the respondent.  It was submitted in the written outline of the respondent’s submissions that:-

“The assault was witnessed by a number of members of the nursing staff and corroborated by a medical report to the effect that the resident had sustained injuries consistent with an assault.”

The applicant, through her counsel, Mr Fehring, denied that she assaulted the resident concerned. It was conceded by Mr Fehring that if the Court was satisfied that the assault occurred, it would not be submitted that s170DE(2) had any application. In other words, if the Court was satisfied as to occurrence of the assault, the applicant would not submit that the termination was nevertheless harsh, unjust or unreasonable. The applicant maintained her position that in any event s170DC of the Act was breached. I shall deal with that matter later in these reasons. Similarly, Mr Lacy conceded that should the Court find that the applicant did not assault the resident it would not be contended that the termination of the applicant’s employment was for a valid reason.

Thus, a great deal turns on my findings on the question as to whether the assault on the resident can be shown, on the evidence, to have occurred.  In order to demonstrate that the assault occurred, Mr Lacy first took the Court to the evidence of Ms Sweeting.  Ms Sweeting was a State Enrolled Nurse and had been employed by the respondent since August 1992.  She gave evidence of “an incident taking place” on 12 June 1994 regarding a Mrs Vera Bullard, a resident at the home (“the resident”).  Ms Sweeting’s evidence was that:-

“It was breakfast time.  I was sitting in the day room feeding a resident.  There was another nurse sitting next to me with her back to the office feeding another resident.... Mrs Bullard came out of her room with her nightdress on and with her dressing gown on with one arm in her dressing gown.”

She said that Mrs Bullard walked towards the nurses’ station, then past it.  The resident then walked past a breakfast trolley then near to another breakfast trolley where the applicant “was standing with her drug trolley”.  Ms Sweeting said that she was 20 feet away from the applicant and Mrs Bullard and had “an unobstructed view of what was happening”.  She said that:-

“I saw that Sister Reader approached Mrs Bullard to put on her dressing gown.  And Mrs Bullard gestured her to move away.”

She then said that the applicant again attempted to put the dressing gown on and that Mrs Bullard again gestured to her to move away.  Her evidence was then that she:-

“... saw Mrs Bullard make a turn not a full turn but a turn perhaps to the desk, sort of a half turn and then I heard Sister Reader say, that’s twice you have hit me and I saw her hit Mrs Bullard .... I saw her with an open hand across her arm.”

Mrs Sweeting was then asked the following questions and answered accordingly:-

“Thank you.  And what occurred then? - I said to Nurse Price who was the one sitting with her back to the desk, Sister Reader, or, Lee as I called her, has hit Vera.  I was shocked.  I sat there continuing to feed the resident I was with.

Why were you shocked? - Because it was something that was so out of - that just was not acceptable.   Because it was a violent outburst from someone who was in charge of us.

...

Would you describe it as a slap or a hit? - I would describe it as a slap across the arm.  Mrs Bullard then turned to go back to her room which was down past the nurses’ station.”

Ms Sweeting then described the resident approaching a breakfast trolley, throwing a breakfast bowl on the floor and continuing to walk on.  She then gave evidence of the applicant putting a “bear hug” on the resident and “dragging her to her room”.

She expressed surprise that the applicant could have dragged the resident down the hall.  She said “I don’t know how she did it.  It must have been anger.”  This was a reference to the difference in size between the resident and the somewhat smaller applicant.

She was asked whether she had discussed the matter with the applicant, she said:

“No, I was too upset, shocked.  I discussed with the other nurses on duty, the other ENs but no one else.”

[ENs means “Enrolled Nurses”.]

She said she reported the matter on the next day to the registered nurse on duty.

Under cross examination Ms Sweeting said that she saw the resident wave her arms around and that she possibly hit the applicant but that she did not see any such blow.

Ms Sweeting said that she was watching the events she described while continuing to feed a resident.  She said that the particular resident she was feeding had her back to a wall and that she, Ms Sweeting, was facing the wall sitting at right angles or 45 degrees (“Could be 45. Right angles”) to that resident.  Ms Sweeting said she wrote a full statement and presented it to the Director of Nursing and to Ms Canterbury.  The only evidence tendered to the Judicial Registrar of a complaint by the witness in writing is an “incident report”, filled in by Ms Sweeting.  The report says:-

“On Sunday 12 June, I witnessed RN Reader slap Mrs Vera Bullard across arm (sic).  I also saw her run down the passage and yell at her to go to her room.”

Ms Sweeting did not refer to the “dragging” incident in her report.  She did not refer to the “yell” in her evidence.  It would be unnecessary for someone to yell at a resident to go to her room if someone was dragging the resident to her room.

I generally find Ms Sweeting’s evidence to be unsatisfactory and in many respects inherently improbable.  I do not comprehend how someone sitting facing a wall (being in the opposite direction from the events witnessed) can have an “unobstructed view” as to what was happening.  I also have difficulty with the over-dramatisation of a mere slap on the arm as a “violent outburst”.  If the “dragging” occurred, why was it not in the incident report?  I find it inherently improbable that the applicant would have been able to drag someone of the size of the resident.  It is extremely unsatisfactory to rely on Ms Sweeting’s evidence to prove any conduct of the applicant in respect of the resident given its unsatisfactory nature.

In contrast, the applicant denied hitting the resident on the arm or dragging her to her room.  The Judicial Registrar appeared to accept the evidence of Ms Sweeting on the basis of Ms Canterbury’s description of Ms Sweeting being “traumatised” by the incident.  I find that to be a most unsatisfactory basis for the acceptance of evidence given the conflict in the two accounts and the inherent unreliability of Ms Sweeting’s evidence as demonstrated above.

I understand the point made in Spender J’s decision in Macs Foods v McLeish WIR 94/305, 12 July 1995, as yet unreported, 7 that the Court has to acknowledge the great advantage of the Judicial Registrar who saw the witnesses give evidence, but here the Court must look at the transcript as evidence on the review and where an account is unsatisfactory and inherently improbable, the Court is not bound by the Judicial Registrar’s favourable treatment of that version to accept that version when common sense and the justice of the situation suggest the contrary.

The other evidence relied upon by the respondent to prove that the applicant assaulted the resident was that of Ms Kinnear.  Ms Kinnear’s evidence was that she saw the applicant hit the resident “in the back with a closed fist” and that she “heard a thump when she hit her”.  She next said that the resident:-

“... then continued to walk up the passageway towards a breakfast trolley.  She threw a bowl from the - the trolley across the floor and Sister Reader proceeded to go after her and she dragged her up the passageway ... [f]rom behind with her arms .... round her....”

Ms Kinnear said that the applicant “took her into her room, put her in the chair ...”.  Ms Kinnear was then asked how the resident was put in her chair by the applicant.  She then gave the following evidence:-

“She pulled Vera to the room and pushed her into her chair and walked out of the room”.

After “the incident”, Ms Kinnear said that she spoke with Ms Sweeting and gave the following evidence about the discussions:-

“We said that she’s hit - you know, Sister Reader had hit Vera, and we really didn’t know what to do about it.  And we didn’t report the incident until the following day.”

Exhibit 7 before the Judicial Registrar was a plan of the area where it is alleged by the respondent that “the incident” occurred.  The Exhibit was in the following form:

Lounge Area
               Room               (Day Room)   T   M  B  ¬  T. R.     Vera’s room  Nursing Station  K

Under cross examination, Ms Kinnear said she was behind the nursing station when she saw the incident.  The mark “K” in the exhibit marks her location.  She said that she could see across to the corridor where the resident’s room was and could not see around the corner but could see “if  someone came out of that corridor”.  She said she did not see the resident come out of the corridor near “Vera’s room” but from the opposite corridor where “B” is marked on the exhibit.  She said she did not see the resident wave her arms around or lash out at the applicant.

She said that the resident walked to beside where the applicant was and she then gave evidence that:

“I really couldn’t see if any contact was made then between the two of them and then she continued on.”

The witness was then asked the following questions:-

“And then you say Sister Reader punched her in the middle of the back? - Yes that’s right.

And it was so loud you could hear the thump? - Yes, I heard it.”

She then said that she was 15 feet away from the “incident” at that stage.

At that time she said she could see Michelle Sweeting and Tracey Price feeding residents in the day room.  The “T” and “M” in Exhibit 7 stand for Tracey and Michelle.  The “T” near the “R” is for trolley and “R” is for Reader.

She said that Ms Sweeting was sitting beside the resident Ms Sweeting was feeding.  This directly contradicts Ms Sweeting’s evidence that she was sitting at right angles or 45 degrees.  When challenged on what Ms Sweeting could have seen, she said:  “I do not know.  I was at the other end of the room.  I do not know what Michelle saw.”

She said that she could not recall what the resident was wearing and that the punch was unprovoked and loud enough to hear 15 feet away.  Her evidence was that the resident “just kept walking after the incident ... threw a bowl of breakfast - whatever - across the floor, and Sister Reader then proceeded to go after her.”

She agreed that the applicant called out for her to assist her in taking the resident to her room but that she failed to assist or even respond.  She said that she went to the “doorway of the room” and “saw Sister Reader put her in the chair”.

The applicant’s evidence was that she was at the drug trolley and was punched in the middle of the back by the resident.  She then admonished the resident by saying “Vera, don’t do that to me”, and gave evidence that:-

“I think I put my hand where she - I placed my hand in the middle of her back where she had pushed ...”

The applicant said that the resident then walked away to the breakfast trolley.  Then the resident “picked a bowl of pineapple up off one of the resident’s trays and threw it on the floor”.  The applicant then said that she went over to the resident and suggested that she go to her room until she felt better.  She said she was concerned that the resident had become aggressive and may hurt another resident.

Her evidence was that she said firmly but not in a raised voice:-

“Look, you will have to go on to your room.”

The resident did not respond but kept walking.  The applicant’s evidence was then that:-

“I walked over to Vera and I put my arm in Vera’s arm.  I’d have to demonstrate that - and Vera went down at the knees, she sort of, you know, dropped down at the knees, and I thought, well, she is going to go on the floor so I went round the back of her and hooked my arms over hers from the back.  And then Vera - she was almost going to the floor and she was very heavy and of course at that stage, I mean, I weigh quite a bit now, I only weighed seven stone and she was quite heavy for me.  And Carol Kinnear ran across and said, “Let me help you, Lee” and she helped me to assist Vera into her room.  Vera didn’t - she sort of - she just went into the room with us and we sat her down on her chair ---”

Ms Kinnear as shown above, denies assisting the applicant to place the resident in her chair.  Ms Sweeting gave evidence that she saw Ms Kinnear go into the resident’s room.  Ms Kinnear’s evidence was that she only went to the doorway of the room.

I find the evidence of Ms Kinnear a most unsatisfactory basis upon which to establish, on a balance of probabilities, that the applicant punched the resident in the back and violently pulled her into the room and threw her into a chair.  I do so for the following reasons:-

1.I find it incredible that an elderly resident could be punched in the back by a blow loud enough to be heard 15 feet away but continue to walk away unaffected and unhurt and go off and do something else such as knock over a plate of breakfast and walk off.

2.The majority of the time when Ms Kinnear described how the applicant took the resident to her chair, her evidence was of “putting” her into her chair, not throwing her.

3.The inconsistency in the evidence of Ms Kinnear and Ms Sweeting as to whether Ms Kinnear was in the resident’s room or not when the resident was placed in her chair.

4.The fact that Ms Kinnear saw nothing of the resident wave her arms around as did Ms Sweeting, whose evidence in that regard is consistent with the evidence of the applicant.

5.Other aspects of her evidence lacked sufficient clarity and detail to cast doubts on the reliability of her evidence on the critical issue.  For example, she gave evidence of the way Ms Sweeting was facing which was inconsistent with the evidence of Ms Sweeting herself.  Further, she could not recall what Mrs Bullard was wearing where Ms Sweeting alleges that the whole incident arose from the applicant’s attempt to put the resident’s arm back in her dressing gown.

6.On the evidence the resident had exhibited violent tendencies in the past and had struck nurses on other occasions.  It is not inconsistent with Ms Sweeting’s evidence that any blow heard by Ms Kinnear may have been as a result of the resident punching the applicant on the back and not vice versa.

7.The inconsistency in the evidence of Ms Sweeting and Ms Kinnear regarding what occurred immediately before the resident disrupted the breakfast trolley.  Ms Sweeting described a slap on the arm whilst Ms Kinnear described a punch.

The evidence of Ms Kinnear was accepted by the Judicial Registrar because she was described

by Ms Canterbury of the respondent, who subsequently interviewed her about the matter, as “traumatised”.  The Judicial Registrar gave no other reason for not preferring the evidence of the applicant.  In the circumstances, I do not propose to give any weight to that finding of the Judicial Registrar.  With the greatest respect to the Judicial Registrar, it does not withstand a searching analysis.  The conduct alleged was most grave.  It cannot be proved, on a balance of probabilities, on the basis of an alleged witness’s state of mind in recalling her version of the incident.

In summary, I find the evidence of Ms Sweeting and Ms Kinnear to be most unsatisfactory if sought to be relied upon to establish an assault on the resident by the applicant for the reasons set out above.  In the main, I find it incredible that someone punched so hard can merely go on one’s way with no ill-affects.  I find it unsatisfactory that the “two witnesses” gave different accounts of what occurred before the breakfast trolley was disturbed.  I find Ms Kinnear’s account of how the applicant put the resident in her room to contain inconsistencies.  I find that there is a conflict between the two “witnesses” as to whether Ms Kinnear entered the resident’s room at the material time.  I am similarly concerned about other material inconsistencies in the evidence of the respondent referred to above.

In my opinion, the respondent has failed to discharge its onus under s170EDA to prove, on a balance of probabilities, when one analyses and carefully weighs the evidence, that the applicant did in fact assault the resident. Therefore, the respondent has failed to show that it terminated the employment of the respondent for a valid reason. As Mr Lacy conceded, “the requirements of s170DE(1)” are not satisfied “if the facts which were said to justify the dismissal were not proved to be so”.

I find that the respondent contravened the provisions of s170DE by terminating the employment of the applicant in circumstances where it alleged the applicant had assaulted a resident but where, on the evidence, when properly considered, no assault has been established on a balance of probabilities.

OPPORTUNITY TO RESPOND TO ALLEGATIONS - SECTION 170DC

The “incident” with the resident occurred on Sunday, 12 June 1994.  The next day was the Queen’s Birthday Public Holiday - 13 June 1994.  The applicant was not required to work on the morning of 13 June 1994.  About twenty minutes before she was due to travel to work to commence her afternoon shift she was telephoned at home by the Director of Nursing, Ms Sargent.  Ms Sargent told her that she was suspended for the afternoon shift because of an incident that had occurred the day before regarding the resident, Vera Bullard.  The applicant was told by Ms Sargent that the respondent had two letters from staff members about the incident and requested that the applicant put her version down in writing.  About 40 to 50 minutes later, Ms Sargent telephoned the applicant again and said:-

“Lee, would you be prepared to come to a meeting with myself and Anne Canterbury this afternoon and discuss the matter.”

The applicant said she would come but would not put anything in writing.  Ms Sargent replied:-

“Lee, that’s okay.  Look it’s just for a discussion.”

Ms Sargent was not called to contradict that evidence.

The meeting occurred about 4.00 pm that day.  Earlier at about 3.00 pm, Ms Canterbury and Ms Sargent had met with Ms Kinnear and Ms Sweeting about “the incident”.

Ms Canterbury gave evidence that she received a telephone call at home on 13 June 1994 to the effect that “there had been allegations of another incident with Mrs Reader and Mrs Bullard”.  She asked Ms Sargent to suspend the applicant “until we could look at the situation”.

She then gave evidence that:-

“I put the phone down and I was absolutely appalled and I just thought to myself how many times is this lady going to be assaulted before we can actually do something about it.”

She asked Ms Sargent to arrange a meeting with the two witnesses and another with the applicant to “hear her side of the story too”.

She gave evidence of the  “witnesses” being “absolutely traumatised” by what had happened.

The applicant was asked for her explanation of “the incident” at the 4.00 pm meeting by Ms Canterbury.  According to the applicant, Ms Canterbury said:-

“I have two letters from two staff which differ from your explanation.  I also have a doctor’s letter which states that the resident’s injuries are consistent with her complaint and that as you will not put this incident in - have refused to put this incident in writing, I am instantly dismissing you and here is your pay and your holiday pay, long service leave and - but your superannuation will take longer to prepare.”

Ms Canterbury gave evidence that:-

“I told Mrs Reader that her story was unsatisfactory because at that time my understanding was that Mrs Reader should not have anything to do with Mrs Reader [sic - should read ‘Bullard’]...”.

This aspect of her evidence related to her understanding that the applicant was not a designated carer for the resident.  This understanding was palpably incorrect as the applicant was the only person on the shift capable of administering drugs.

She said further that “I told her that her story did not agree with the story - the reports from the other two... I didn’t accept her story.”

Ms Canterbury claimed that she had not made her mind up to dismiss the applicant prior to the meeting.  I find this evidence to be incredible in view of the evidence that the respondent had already prepared the applicant’s letter of dismissal and her termination cheque prior to the 4.00 pm meeting.  Further, Ms Canterbury’s account of the thoughts going through her mind when advised of the incident are consistent with a prejudgment of the matter.

At no stage was it ever put to the applicant at the interview that she had punched the resident in the back, slapped her on the arm, dragged her into a room or pushed her into a chair.  She was not afforded an opportunity to view the doctor’s report which was allegedly in the hands of Ms Canterbury but never tendered into evidence.  At no stage was she shown anything in writing about “the incident” from “the witnesses”.

She was not given the opportunity of having a union representative in attendance at the meeting.

Section 170DC of the Act provides that:-

“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)the employer could not reasonably be expected to give the employee that opportunity.”

I do not believe that this was an occasion where s170DC(b) was relevant. The applicant was faced with very serious allegations of a kind that had the capacity to ruin her career. She was entitled to an opportunity to defend herself against those allegations. In my opinion she received no such opportunity. As Beaumont and Heerey JJ said in Byrne v Australian Airlines Ltd (1994) 47 FCR 300, 332:-

“It is well established that it is not sufficient that an employee have a chance to state his or her own case in detail; the employee must know sufficiently what is being said against him or her so that he or she can properly put forward his or her own case.”

Here the applicant was never appraised of the critical allegations against her and thus was never given an opportunity to deal with them.

In any event, I find that “the investigation” carried out by the respondent was far too inadequate.  No attempt was made to interview other of its staff who were present at the time of “the incident”, such as Ms Price or Ms Cooper who were on duty on 12 June 1994.  It also would have been prudent for the applicant to have been given the opportunity of having present at the interview an independent person such as a union official there to protect her interests.  See Mohazab v Dick Smith Electronics P/L NI 0327R/94, 1 June 1995, Wilcox CJ, as yet unreported, at 6-7, 9.

In Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, 252, Wilcox CJ said, of s170DC of the Act, that:-

“... It is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly.  Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”

I agree that the section should be so interpreted and that it should not be subject to an over-technical interpretation divorced from real world industrial relations considerations.  However, I equally agree that the employee must know with precision what is said about her or him and have a real and full opportunity to seek to disabuse her or his accusers of the allegations against her or him. In this context, see Shackley v Australian Croatian Club Ltd, AI 136 of 1994, 6 September 1995, Moore J, as yet unreported, 18.

In the circumstances of this case no such opportunity was afforded to the applicant.  As discussed elsewhere, none of the essential allegations were put to her.  She was also not appraised of what was in the statements of the witnesses or the doctor’s report.  She was called in for “a discussion” and on arriving for the meeting, found her employment in peril.  She was not invited to have her union representative present.  She did not know it but at the very time she was called on to give her version of the incident, her termination letter had been written as had her termination cheque.  I do not accept Mr Lacy’s submission that the cheque may have been cancelled and the letter withdrawn if her explanation had been satisfactory.  In my opinion, from Ms Canterbury’s evidence of her thought processes on receiving the telephone call about the incident, it is clear to me that she had at that stage, in any event, already made up her mind to terminate the applicant.

With the greatest respect to the Judicial Registrar, I find not the slightest basis for agreement with her conclusion that the actions of Ms Canterbury were “thoroughly responsible” and that “in fact she had no other options than to do as she did.”

She had the option of disclosing fully to the applicant what precisely was alleged against her and she deliberately failed and/or neglected to do so.

REMEDY

Having found that the respondent has contravened ss170DE and 170DC of the Act, it remains for the Court to consider the question of appropriate remedy.

Mr Lacy submitted that reinstatement would not be “appropriate” and that, as he put it:

“that in my submission appears from the evidence itself”.

That submission was founded on a proposition that I should have regard to conduct of the applicant during two occasions other than the event concerning the “incident”.  I reject that submission.  One of the events sought to be relied upon did not result in any formal warning and its occurrence was denied by the applicant.  If it was not sufficiently serious to initiate a disciplinary process I do not see why it is relevant to whether or not the applicant should be reinstated.  Ms Canterbury’s evidence was that but for “the incident” on 12 June 1994, the applicant would have kept her job.  I similarly pay no regard to a second such matter which was the subject of a warning which the respondent withdrew.

I do not see why it is impracticable to reinstate the applicant.  The resident at the centre of the “incident” has since departed the home.  The applicant has had a long association with the respondent and its predecessor, going back to 1987.  The only matters that have caused concern for the respondent during the applicant’s employment in relation to the applicant have all been connected with Mrs Bullard.

I find no basis for the submission of Mr Lacy that I should not order reinstatement because of “the lack of faith and trust that would exist”.  In my view, that matter cuts both ways.  The respondent will no doubt hope that the applicant remains in incident-free employment and the applicant will no doubt hope that in future she is given a fair chance to explain herself should the need arise.

The net earnings of the applicant were $616.00 on average per week, which on my understanding translates to $860.00 gross per week.  As at 5 September 1995 she had lost 65 weeks wages as a result of her unlawful termination.  She was thus entitled to $55,900.00 gross.  From that figure should be deducted the earnings from other sources since her termination.  The relevant figure of such gross earnings is $32,298.55.

The relevant gross figure as at 5 September 1995 was $23,601.45.  For the time from then until the applicant’s reinstatement, a further sum based on the gross sum of $860 should be added to her “remuneration lost” while subtracting any further gross earnings from other sources since 5 September 1995.  The Court received no submissions that any other amount should be deducted from the amount of remuneration lost to be ordered.  The final gross figure should be adjusted for PAYE taxation.  See Johns v Limited TI 148R of 1994, 18 May 1995, Northrop J, as yet unreported, 33.  If either party disagrees with the above-mentioned arithmetic, that matter can be raised with the Court pursuant to Order 5 below.

In the circumstances the Court makes the following orders:

1.The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 January 1995 is set aside.

2.It is declared that the termination of the employment of the applicant contravened ss 170DC and DE of the Act.

3.The respondent shall appoint Cecile Reader to the position in which she was employed immediately before the termination.

4.The employment of Cecile Reader is deemed to have been continued for all purposes from 13 June 1994 to the date the final order is made in this matter.

5.The matter is adjourned to the directions hearing list on 2 October 1995 to enable the parties to calculate, in accordance with the reasons for judgment, the amount of remuneration lost by the applicant because of the termination of her employment and, specifically, the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate.

NOTE: If agreement is reached, a consent order can be made pursuant to Order 35 rule 10.

I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:  8 September 1995

Counsel for the Applicant:  Mr I Fehring

Solicitor for the Applicant:               Wilson Potter Nicholson

Counsel for the Respondent:           Mr B Lacy

Solicitor for the Respondent:           Tanya Cirkovic & Associates

Date of hearing:  29, 30 August 1995

Date of judgment:  8 September 1995