Yoel Morag v Department of Health and Human Services - [2017] FWC 3868

[2017] FWC 3868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yoel Morag

Department of Health and Human Services

(U2016/10287)

COMMISSIONER CRIBB

MELBOURNE, 14 AUGUST 2017

Application for relief from unfair dismissal.

Mr Yoel Morag (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by the Department of Health and Human Services (the Respondent, the Department, DHHS). The application was made under section 394 of the Fair Work Act 2009 (the Act).

There was a conciliation conference on 20 September 2016 but the matter was not settled. The hearing was held on Wednesday 22 February 2017 and Thursday 23 February 2017. Mr Morag filed Closing Submissions on 23 March 2017. The Department filed the Respondent’s Closing Submissions on 13 April 2017. Mr Morag provided his response to the Respondent’s Closing Submissions on 4 May 2017.

At the hearing, Mr Morag gave evidence as did, for the Department, Mr M Atkin, Acting Director Corporate Services who was appointed as the Hearing Officer, Ms C Wright, Disability Support Worker and Ms C Price, Senior Investigator, Ethical Standards Unit. Mrs M Carew, Operations Manager, also gave evidence in response to a summons to appear.

Legislative requirements

Section 387 of the Act sets out the requirements for determining whether the dismissal was harsh, unjust or unreasonable. Section 387 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.”

I will deal with each of the factors in turn.

Section 387(a) - valid reason

Mr Morag was dismissed because the Department found two allegations of serious misconduct to be substantiated. The allegations were that:

(a)On or about 25 November 2015, between around 7.00 pm to 7.30 pm Mr Morag was verbally aggressive towards a resident (LT) when he did not remain in his bedroom after 7.00pm. Specifically, on each occasion that LT exited his bedroom, Mr Morag was very forceful in yelling at LT very loudly, in close proximity, pointing his finger at LT and yelling “go to bed now!” and “I have had enough, go to sleep!”.

(b)On or about 25 November 2015, at around 8.00 pm, Mr Morag pushed a resident (LT) with both of his hands onto LT’s outer chest and inner-arms area – from the end of LT’s bed and onto LT’s bed and yelled words to the effect of “stay in your bed!” and/or “roll over, go to sleep!”.[1]

Mr Morag denied that he had engaged in any of the conduct as alleged by the Department. Therefore, the first task for the Commission is to make findings, on the balance of probabilities, as to whether or not, on 25 November 2015, Mr Morag was verbally aggressive towards a resident (LT) in the manner set out in Allegation (a) and also whether Mr Morag pushed that resident onto his bed and yelled at him as described in Allegation (b). The second step requires the Commission to determine whether the misconduct amounted to a valid reason for dismissal.

On the night in question, Ms Wright and Mr Anderson (both agency employees) were rostered on, with Mr Morag, to work at Rebecca Court. Ms Wright gave evidence before the Commission but the Department had been unable to make contact with Mr Anderson. Therefore, the only evidence from Mr Anderson was that contained in his written statement provided as part of the investigation.[2]

Mr Morag’s evidence

Mr Morag gave evidence that:

· He had been in the military for 20 years and commenced with the Department in March 2013.[3]

· There was never an incident in the house and he had been consistent in saying that.[4]

· He had been crucified by a lady who wanted a job in the house. Ms Wright had behaved in an unacceptable manner in the house from the very beginning.[5]

· He had also been concerned about the unprofessional conduct of the other agency person, Mr Anderson. This was on the basis that, until BV and his grandfather arrived, he had not done anything in the house.[6] Mr Morag explained that he had not put his concerns about the two ONCALL staff in the communication book because he had worked 14 hours already and didn’t want to spend another half an hour at work. It was recalled that he had not mentioned this to Mrs Carew when he spoke to her at 9pm.[7]

· In relation to picking JV up from the bus in the afternoon of 25 November 2015, in his statement to the investigator on 15 February 2015, Mr Morag said that he had driven LT down at least twice (rather than once) to see the horses. Mr Morag stated that Ms Wright had waited for JV’s bus at the station rather than having been in the bus with LT and himself. It was denied by Mr Morag that he had yelled at LT to sit down and be quiet. Rather, he had been firm and assertive and, as LT was sitting at the back of the bus and there was traffic noise, he had to speak loudly enough so that LT could hear him.[8]

· On 25 November 2015, he had returned from taking LT and another client out for another ride at about 6.30 pm and found that nothing had been done and the house was a big mess and not clean. Mr Morag stated that his first mission was to prepare dinner and he had found that one of the clients was not being helped to shower which put the client under stress.[9]

· At about 7.30 pm, LT had approached him in the kitchen and indicated that he wanted to go to bed and for Mr Morag to sit near him and hold his hand. Mr Morag stated that LT liked to have the lights on when he went to bed and to have his door closed immediately for the rest of the night. Mr Morag recalled that he thought that LT had fallen asleep so he left his room but shortly after, LT came out of his room and sat in the lounge for a few minutes. It was stated that he had then said to LT that he needed to go to sleep and took LT’s hand and LT had put it in under Mr Morag’s arm and Mr Morag had led him back to his bedroom. Mr Morag denied dragging LT into his room.[10]

· Just before 8.00 pm, he had left LT’s room to log out and LT had followed him and sat in the lounge. Mr Morag recalled that the phone then rang and it was Mrs Carew who had asked him how things were at the house. Mr Morag stated that he had replied that LT was not sleeping and so Mrs Carew had asked him to stay until LT went to sleep.[11]

· At about 8:15pm, he again encouraged LT to go to his bedroom so that he could go to sleep and LT had put his hand under Mr Morag’s arm and they had gone into LT’s room. When he was in LT’s room with the door shut, he heard JV shouting loudly. Mr Morag recalled that he left LT’s room and saw Ms Wright holding JV’s arms behind his back in a restraint. He had told Ms Wright to immediately let go of JV, to remove herself from the situation and to write an incident report. Mr Morag said that he had then returned to LT’s room and sat on the bed beside him until LT fell asleep. Mr Morag said that this had been a very serious incident to have witnessed and that, the next morning, he had left a message for the supervisor. Mr Morag said that the supervisor (Mr Pearson) did not come back to him. On Saturday morning when Mr Pearson called him, he (Mr Morag) did not raise the issue.[12]

· LT came in and out of his room 2 - 3 times between 7.30 pm and 8.15 pm/8.20 pm. Mr Morag stated that when LT finally went to bed, there were no difficulties and that he (Mr Morag) had stayed on the bed until around 9.00 pm.[13] In his statement to the investigator, Mr Morag and had said that LT had come out of his room twice.[14]

· Mr Morag denied that he had grabbed LT by his shoulders and had pushed LT with enough force so that he bounced up and down on the bed.[15]

· It was impossible for Ms Wright to have been standing one foot inside the door. This was because LT’s routine was that, when he was taken to go to sleep, you closed the door immediately behind you following entering the room. Mr Morag explained that this was for LT’s privacy and that it was written in his Behaviour Support Plan (BSP). Further, Mr Morag explained that the door was closed and the light was on and that no one could go inside the room.[16]

· He denied that he had conceded to Mr Atkin, during the review hearing, that the door was not always closed when LT was in the room. Mr Morag stated that he had never said that the door was not closed.[17]

· Ms Wright could not have been sitting in the bedroom with LT because LT was always with him and secondly, Ms Wright had been instructed by Mrs Carew not to be close to LT. This was because the day before, Ms Wright had a sexual incident with LT. Mr Morag also stated that Ms Wright had not assisted at all and that she had done whatever she wanted to do, had talked on the phone and done her own thing.[18]

· In terms of the report from Mr Anderson that he had grabbed LT’s blanket, Mr Morag stated that JV had grabbed the blanket and that Mr Morag had helped LT release the blanket from JV. Mr Morag denied that he had then dragged LT into his room.[19]

· He did not tell LT to “roll over” because that was not his English. Mr Morag said that he had asked LT to turn around and that every time they sat on LT’s bed, he would always say to him to turn around and LT would turn around. Mr Morag did not accept that Mr Anderson and the other people in the house could have heard him say “roll over”. This was because Mr Anderson was in the other room with BV and his grandfather.[20]

· He denied that he had been the subject of four previous misconduct investigations on the basis that the whole process was a witch hunt and an attempt to ruin him as a result of a complaint he had made of unacceptable behaviour by the Department to a client.[21]

· He accepted that there was a disciplinary procedure against him but stated that the Department had tried to blame him for something which he had never done. Mr Morag denied that he had threatened to cut off the penis of a resident but agreed that he had been given a substantiated formal warning by Mr Scott, on 7 September 2015. It was stated by Mr Morag that he did not agree with the warning and that he had challenged it and the warning was not withdrawn but was subject to another issue that the reviewer put in his review.[22]

· He also denied the allegation that, on 27 July 2015, he had responded to a colleague’s request in an aggressive manner pointing his finger to their face and telling them that they were a bully and a joke. Mr Morag stated that he did not do it and that that was another attempt by the Department at a witch hunt. It was indicated by Mr Morag that he did not accept any of the incidents as alleged by the Department.[23]

· He agreed that, at the time he received the allegation letter in relation to the incident on 25 November 2015, he was under work restrictions. Mr Morag stated that he had challenged the work restrictions in the Commission and that Commissioner Bissett found that the Department could put in place those restrictions. Mr Morag agreed that the work restrictions were that he had been instructed not to work in certain houses and to work under certain conditions as a result of the Department’s concerns about his work performance. Mr Morag said that he had objected to this.[24]

· On 25 November 2015, he started at 7am and had to finish at 8pm but, when he spoke with Mrs Carew just before 8pm, Mrs Carew asked him to work for one more hour. Mr Morag stated that it was very common in the house to work that number of hours. Mr Morag accepted that the Department had previously spoken to him about working excessively long hours and that, on 25 November 2015, he had worked 14 hours (7.00 am to 9.00 pm). Mr Morag said that this had been approved by Mrs Carew.[25]

· On the shift in question, there were two other carers who were agency personnel (ONCALL). Mr Morag stated that they did not listen to him and that they did not perform the normal duties. It was explained by Mr Morag that Mrs Carew and Mr Pearson had both said that he was the senior in the house and so he had to take responsibility for what happened in the house. Mr Morag indicated that he was a qualified Disability Support Worker.[26]

· Mr Morag explained that he could not write an incident report because he was not in the house anymore. He confirmed that the procedure for serious incidents was that an incident report had to be made within 24 hours. Mr Morag stated that he had been unable to write it down that evening as he was busy with LT who was his priority as he was alone in the house as no one was doing their job. It was recalled that, a few days later, he had written to the Department about the incident.[27] Mr Morag denied that he had raised it with the Department after finding out the details of the allegation that had been made against him. This was because he did not know about the allegation.[28]

· With respect to whether or not he called Mrs Carew at 9.00 pm or whether Mrs Carew had called him, Mr Morag explained that he still believed that he had called Mrs Carew just before he left to tell her that LT was asleep. However, he could not find a record of that in his mobile phone records. Mr Morag accepted that Mrs Carew’s telephone records showed that Mrs Carew had called him.[29]

· He agreed that his voice was naturally a little bit loud and assertive.[30]

Ms Wright’s evidence

It was Ms Wright’s evidence that:

· Her first shift at Rebecca Court was either the shift with Mr Morag or the shift before so that this was her second shift at Rebecca Court.[31]

· The first time she met Mr Morag was at the start of her shift on 25 November 2015.[32]

· Ms Wright described what had happened with LT in the car when they were waiting for JB’s bus to arrive. This included that she was concerned at Mr Morag’s yelling and that LT was making a lot of eye contact with her which she interpreted as LT being concerned. Ms Wright thought that Mr Morag was being assertive bordering on highly inappropriate and in the grey space between the two.[33]

· In response to the question as to why she had not mentioned in her previous statements that Mr Morag had yelled at LT several times to sit down and be patient, Ms Wright supposed that it was the first time that it had come up.[34]

· It was her practice at all times to put her mobile in the medicine cabinet and that was where it was on the night of 25 November 2015. Ms Wright confirmed that Mrs Carew had contacted her on the phone during the shift in question and that she and Mrs Carew may have had two phone conversations (one of which was on the landline). Ms Wright also stated that she had two or three missed calls from Mrs Carew on her mobile.[35]

· When referred to the statement she had made to the investigator, where it said that she could not recall whether she had spoken to Mrs Carew on 25 November 2015, Ms Wright confirmed that she was now saying that she had spoken to Mrs Carew. It was Ms Wright’s view that her recollection today was better than when she had given that statement – in January 2016.[36]

· Ms Wright confirmed that, in her statement to the investigator, she had said that either LT or Mr Morag would close the door behind them.[37]

· It was confirmed that she had said that BV’s grandfather could possibly have heard the yelling.[38]

· Ms Wright also confirmed that in her statement to the investigator (including the diagram) she had said that she and Mr Anderson were standing just outside the bedroom.[39]

· In relation to the difference between Ms Wright’s statement to the investigator and her witness statement in the Commission (was 1 foot inside the door), Ms Wright explained that, the last time that Mr Morag was redirecting (sort of pushing) LT into the room, she was outside the door. As the push happened, she had taken a step inside the door (which was open) and so had continued to move through the door as things were happening.[40]

· The diagram she had drawn was difficult because it showed that she was outside the door. However, Ms Wright said that there was probably 1.5 to 2 feet between the door and the bed.[41]

· In terms of the difference between her statement to the investigator and her witness statement in the Commission regarding the timing of when she had gone in to soothe LT, Ms Wright stated that she did not recall whether it was instantly. All that Ms Wright could recall was that, after the event, LT would not settle and so she sat with him until he fell asleep.[42]

· She was not aware of an incident between herself and LT the previous night but said that it was very likely the case.[43]

· Ms Wright acknowledged that Mrs Carew had requested that no female staff be alone with LT. On the night in question, being a carer, her concern was more about the safety of the resident than of herself.[44]

· She agreed that she did not approve of Mr Morag’s approach to LT. Ms Wright recalled that she had thought about whether to make a complaint for about a week. Ms Wright recounted that she had spoken to a team member who had brushed it off. However, she had seen Mr Anderson and had spoken to him about it and had then decided to go through the right channels. As she was not a DHHS employee (agency), Ms Wright explained that she didn’t know who to report it to and also she did not have the ability to make an incident report. As there was a staff meeting coming up, she had waited until Mrs Carew was there and had advised Mrs Carew in front of the team about her concerns about Mr Morag’s behaviour. Mrs Carew had then asked her to fill out a Client Incident Report and make a written statement. This she had done within a couple of days of the incident.[45]

· What she had witnessed was highly inappropriate for a carer but she did not think, at that time, that Mr Morag was going to lose his job. When she heard that Mr Morag had, she wasn’t surprised because it was inappropriate.[46]

· In terms of whether it was a clash of philosophies between Mr Morag and herself, Ms Wright said that, regardless of what organisation you worked for, it was very clear that it was inappropriate to use force, particularly with children. In addition, Ms Wright explained that subsequently, she had been able to manage LT’s behaviour within the guidelines and without stepping outside her role and being aggressive.[47]

· She felt that, when somebody was yelling in someone’s face, pointing the finger and constantly yelling and then a very forceful push so that the child bounced up and down on the bed, that was aggressive behaviour.[48]

· The difference between Mr Morag giving her directions and the way Mr Morag spoke to LT was described as very obvious.[49]

· She remembered hearing Mr Morag yelling at LT as he was trying to get LT to bed. On several occasions, Mr Morag had positioned himself in front of LT, as if to block his path, taken his shoulders and redirected him back towards his bedroom.[50]

· A number of times, Mr Morag directed LT into the bedroom and he would lie down in bed and Mr Morag would close the door and presumably tried to settle LT. Ms Wright recalled that the last time Mr Morag had redirected LT, her attention was caught (Mr Morag was becoming increasingly frustrated and louder) and she had followed almost in the door. Ms Wright assumed that the door was still open because Mr Morag was busy getting LT to bed and had not closed the door because LT was not yet in bed.[51]

· Ms Wright said that she had started moving towards Mr Morag to assess the situation as she was not sure whether things were escalating and she was concerned about the resident’s safety. This was because she was expecting that the door would be closing. Ms Wright said that she was one step inside the door when the push happened. Ms Wright recounted that the sequence of events was that LT would go into the bedroom followed by Mr Morag and then one or other of them would close the door. It was only on the last occasion that LT and Mr Morag went into the room that she could see through the doorway.[52]

· It was confirmed that she had emailed Ms Price on 15 February 2016 and advised that she wasn’t sure that Mr Anderson had directly observed the incident. Ms Wright agreed that in the diagram she had drawn, she had drawn Mr Anderson as standing next to her. This was because Mr Anderson was in the general area but she could not say what he had witnessed.[53] Ms Wright indicated that the difference between the doorway versus the hallway was about a foot.[54]

· When queried by Ms Ely about why she had waited a week to report the incident, she had said something about being an agency employee and having bills and rent to pay and so had to make sure that the decisions she made were appropriate.[55]

· She had not mentioned earlier in her evidence that she had not made the complaint because she felt intimidated by Mr Morag because she had not been asked about it. Ms Wright recalled that she was definitely intimidated because Mr Morag was presented to her as the person who would teach her how to work in the house and she was advised to follow his instructions.[56]

· When questioned about that, Ms Wright said that perhaps “intimidated” was inappropriate and maybe she had been “nervous”.[57]

· She could not say completely what LT’s bedroom routine was because she was working with another young person (one-on-one) on the night in question.[58]

· When asked about the difference between Mr Anderson’s account (from the back) and her account (from the front) of where Mr Morag had pushed LT, Ms Wright said that she imagined that Mr Anderson was wrong. This was because she specifically recalled that Mr Morag’s hands were in the front.[59]

· She did not know what time Mr Morag had pushed LT but that it was during bedtime. Ms Wright imagined that it would have been sometime between 6:30 pm and 8.00 pm but said that she did not know the exact time.[60]

· In terms of perceived differences regarding timing between her statement to the investigator and the incident report, Ms Wright explained that the incident (yelling) began at 7pm and the push occurred at 8.00 pm.[61]

· She confirmed that what she saw on the night of 25 November 2015 was very clearly a push and not a firm redirection and was therefore not in the grey space between the two.[62]

· She confirmed that she understood the difference between yelling and being assertive and stated that what she had heard was yelling and not in the grey space.[63]

· It was clear to her that, during the incident, Mr Morag was becoming increasingly frustrated.[64]

Mrs Carew’s evidence

Mrs Carew was summonsed to appear in the Fair Work Commission at the request of the Applicant. Mrs Carew’s evidence was that:

· Rebecca Court was a complex house and a challenging environment.[65]

· Mr Pearson left the group home to attend a house supervisors’ meeting at 2.30 pm on 25 November 2015 having commenced work that day at 8.00 am. Ms Wright had started at 2.00 pm and finished about 10.00 pm and Mr Anderson had worked from 4.00 pm to 6.00 pm. Mr Morag had worked from 7.00 am until 9.00 pm.[66]

· Ms Wright was specifically engaged through ONCALL, at that time, to support JB and to communicate with him in Auslan. Additional hours would be added to Ms Wright’s shift so that she would be able to work with other residents as well. Mrs Carew understood that Ms Wright was working as an agency employee and then commenced working for the Department as a casual and then began on a contract with the Department on 21 December 2015.[67]

· She guessed that Ms Wright had received her contract with the Department after she had made the report against Mr Morag.[68]

· She did not request Mr Pearson to contact Mr Morag to advise him that he no longer had shifts due to Ms Wright being given full-time shifts.[69]

· ONCALL ran their own orientation and induction program for staff which included training in a range of areas (behaviour support, manual handling) similar to the Department’s orientation.[70]

· She agreed that Mr Morag was the staff member who had worked at the group house the longest but would not have described him as the senior staff member. On the night of 25 November 2015, Mr Morag was responsible for the group house as he was a Department employee and the supervisor had left.[71]

· If an incident occurred, the process was that the staff member was to contact the on-call manager to make a report or to get backup support. Mrs Carew was not the on-call manager on the night in question but she was in contact with the house because she was aware of the complexities of that particular group home.[72]

· The Department encouraged people to report incidents at the time. If an incident was reported a couple of days/a week later, Mrs Carew said that she would rather know than not know. It was stated that it was not unusual for staff to report later either because they did not have the confidence to report at the time or because they were concerned about repercussions. These repercussions were described as feeling that their colleagues were not going to speak to them but did not include that their employer might no longer employ them.[73]

· In relation to a Category 1 incident, the requirement was that it be reported immediately.[74]

· On 25 November 2015, she had spoken to other staff at the house by mobile phone. Mrs Carew recalled that she had spoken to Mr Morag a few times that night but could not remember how many times she had spoken to Ms Wright. She could not remember whether she spoke to Mr Anderson.[75]

· She spoke to Mr Morag, who was due to finish work at 8.00 pm, about staying until LT had settled as LT had not settled at that stage. Mrs Carew confirmed that there was a risk to Ms Wright and that the way of managing the normal bedtime of LT and Ms Wright was to have Mr Morag stay.[76]

· The purpose of the phone call was also to touch base to find out if there were any issues. Mrs Carew recalled that there was no mention of anything by Mr Morag. It was stated that, when she did not receive a phone call from Mr Morag as requested, she had telephoned the house to obtain an update. She was not sure whether she had spoken to Mr Morag or Ms Wright but was advised that LT was still getting in and out of bed and was yet to settle. She had requested that one of the staff phone her back to provide her with an update.[77]

· She recalled that, on one occasion, she had spoken to Ms Wright because Mr Morag could not come to the phone because he was working with LT. Mrs Carew had asked Ms Wright as to how LT was settling and if Mr Morag could call her back. It was recalled that Ms Wright had said that LT wasn’t settling very well. Mrs Carew stated that Ms Wright did not mention that Mr Morag had yelled at or physically abused LT.[78]

· Ms Wright did not ever discuss with her her financial situation or that she was worried about her rent.[79]

· She would not specifically recall the report of an incident on 24 November 2015, between Ms Wright and LT. However, Mrs Carew stated that she did not want Ms Wright to be working with LT, specifically in the bedroom on her own, because it had been reported that LT was taking a particular interest in the female staff. It was said that she did not want Ms Wright to put LT to bed and would not have encouraged Ms Wright to sit and soothe LT on his bed alone. However, if a resident required a level of support and the situation was deemed to be safe, the priority then was to support the child. Mrs Carew indicated that, if Ms Wright had spent time with LT alone in his room when he was not distressed, that would have been of concern to her.[80]

· She was not aware if this incident was brought up during the handover between Mr Pearson and Mr Morag.[81]

· She could not recall any formal issues that had arisen in relation to Mr Morag. Mrs Carew said that she would speak to Mr Morag depending on what was happening in the group home at the time. This was possibly not at all on some shifts but possibly a lot on other shifts.[82]

· During the group house team meeting on 2 December 2015, she spoke to staff about the restrictions in relation to Mr Morag. These were that Mr Morag needed to work under the direct supervision of the supervisor and there were also manual handling restrictions and that Mr Morag could not work more than 76 hours and then 88 hours without approval. This was to ensure that the staff did not contact Mr Morag to work hours that were outside these restrictions and to go through the Shift Replacement Office instead. It was stated that, at the time, she was not aware of the reasons behind the restrictions placed on Mr Morag.[83]

· It was stated that she was given in writing, on 27 November 2015, exactly what the full restrictions were which was why she had spoken to the staff on 2 December 2015. On 25 November 2015, it was recalled that she was aware of the restrictions about how long Mr Morag could work which was an issue as she needed Mr Morag to work longer than the permitted hours. This was as a result of a conversation with the Casual Workforce Manager.[84]

· Mrs Carew recalled that, following having explained about Mr Morag’s restrictions, Ms Wright had said that she needed to talk about something that had happened with Mr Morag and then she had disclosed the incident.[85]

· Ms Wright’s reasons for not having raised the incident on the day were that she wasn’t quite sure what to do. Mrs Carew said that Ms Wright seemed to be going through a thought process. Ms Wright had advised that she felt intimidated by Mr Morag.[86]

· The general recollection about the rules regarding LT’s door when he went to bed was that she was fairly sure that LT had the bedroom door shut after the staff went into the room and sat with him. Mrs Carew said that she was fairly sure that the bedroom door was closed when LT stayed in bed for the night once he had settled.[87]

· She recalled that LT had a dependency on a red blanket at the time which he would wear/drape it over his head.[88]

· There was higher incident reporting to police when Mr Morag was on shift. Mrs Carew said that she could not draw any conclusions from that.[89]

· Following Mr Pearson leaving the group house around 2:30pm resulting in Mr Morag working outside of his restrictions in relation to supervision, Mrs Carew said that she was in constant contact with the house.[90]

· There was nothing in LT’s Daily Routine which specified that the door must be closed.[91]

· It was not acceptable for any staff to push or yell at a resident. In relation to LT, it would be consistent with his BSP to speak in a calm and normal fashion to him. Mrs Carew explained that the children came from a trauma background so that any incidents that were threatening or difficult for them could set them back to whatever the trauma was that they had been through previously.[92]

· In relation to the discussion about the practice with the door, during the review hearing with Mr Atkin, Mrs Carew recalled that the discussion was that Ms Wright would have to be able to go in through the door and so it wasn’t that the door was always shut. Therefore, it was stated that Mr Atkin would not have been lying about any of this.[93]

· She was not aware of Mr Pearson’s statement about using a raised volume and more forceful tones to manage significant challenging behaviour.[94]

Mr Anderson’s statement

Mr Anderson made a Statement[95] on 11 January 2016 to Ms Price as part of the Departmental investigation. In his Statement, Mr Anderson said the following:

· At around 8pm, after we had given LT his medication, we were attempting to have him go to bed but he kept on coming out of his room to sit with him (Mr Anderson) on the couch.[96]

· He remembered Mr Morag shouting at LT telling him to go back to bed. He thought that Mr Morag had yelled this at LT about three times. As he could see Mr Morag getting distressed, he said to him that he would deal with LT.[97]

· At one point, LT was just outside the office wearing a blanket on top of his head. Mr Anderson recalled that Mr Morag grabbed LT’s blanket and yelled “you go to bed now” while kind of walking/dragging LT to his room by the blanket.[98]

· He then saw Mr Morag push LT from behind into his bedroom and onto his bed. It was stated to be a pretty decent push as LT fell straight down onto the bed. Mr Anderson was standing just outside the door to LT’s room when this had happened. Mr Morag then shouted to LT “roll over” while pointing to indicate that LT was to roll over and face away from the door.[99]

· While this was happening, Ms Wright was on the phone talking to another client’s parent.[100]

Ms Price’s evidence

Ms Price gave evidence that:

· It was her understanding that the Department had been unable to get in contact with Mr Anderson.[101] Ms Price stated that she did speak with Mr Anderson in the course of her investigation.[102]

· Ms Price explained the principles guiding investigations of alleged serious misconduct.[103]

· It was acknowledged that Mr Anderson, in his statement, was saying that Ms Wright was not there during the pushing. However, Ms Price considered that the evidence of both witnesses was that they had directly witnessed a push with inconsistencies about what that push looked like. Ms Price stated that she was satisfied that at least one push did occur.[104]

· It was confirmed that she had emailed Mr Anderson on 22 February 2016 and asked if he had observed the push and if he had not, had Ms Wright told him about it. Ms Price indicated that she did not receive a response. Ms Price stated that, despite not receiving a response, she still believed that a push had happened.[105]

· She had accepted Ms Wright’s and Mr Anderson’s accounts over that of Mr Morag because there were two witness accounts of pushing.[106] Ms Price acknowledged that the two accounts were inconsistent but said that she had preferred the two inconsistent versions to the one consistent version of events.[107]

· The inconsistencies were of concern during the investigation but she had found that, on the balance of probabilities, a push had occurred. The reason for this was that Ms Price had formed the view that there were perhaps two incidents.[108]

· In her report, she had said that she was satisfied that there was at least one push. Ms Wright stated that both Mr Anderson and Ms Wright had witnessed a push so that there actually could have been two pushes. There was evidence therefore that there had been pushing that night.[109]

· The push that was referred to in the allegations was the one that Ms Wright had seen. Ms Price stated that she was satisfied that there was a push.[110]

· She had preferred Ms Wright’s account rather than Mr Morag’s on the basis of it being combined with Mr Anderson’s evidence of also having witnessed a push but not the same push.[111]

· It was frustrating Mr Anderson not responding to the additional queries because there were inconsistencies in the accounts provided by the two witnesses.[112]

· She had acknowledged the inconsistencies in Ms Wright’s evidence about whether Mr Anderson was there when the push happened.[113]

· She had found that the yelling allegation had been made out as the only inconsistencies in the evidence were whether there were three or four yells. Ms Price stated that both Ms Wright and Mr Anderson were clear that Mr Morag had yelled at the client.[114]

· In relation to Mr Anderson and Ms Wright’s different evidence about what happened at 8.00 pm, Ms Price said that the interactions had occurred over a 1.5 to 2 hour time period and that it was unrealistic for somebody to remember specifically when a client went to bed.[115]

· She was unaware that Mr Morag did not have an unblemished record during the investigation and so it did not form part of her assessment.[116]

· If she had just been dealing with Mr Morag’s and Ms Wright’s evidence, she would not have substantiated the pushing allegation. This was because it would have been one person’s word over another’s and given the gravity of the consequences.[117]

Mr Atkin’s evidence

Mr Atkin gave evidence that:

· His role as a Hearing Officer was to confirm the previous processes and to address, through the hearing, any unanswered questions that he had and to confirm his own view.[118]

· Questions came up during the hearing because his views going into the hearing where not shared by the people around the table. Mr Atkin explained that one of the important roles of the Hearing Officer was to ensure that there was a shared understanding of what both parties were bringing forward.[119]

· If there had not been general acceptance about the layout of the building, he would have gone out to see it, if it had been material. Mr Atkin recalled that Mr Morag had agreed that it was not material.[120]

· He confirmed that in his final response, he had stated that Mr Morag had agreed with Mrs Carew about the door being open. Mr Atkin recounted that that was not the initial position at the beginning of the hearing and was the reason that considerable time was spent on this issue. It was stated that the hearing could not progress unless there was acceptance of the facts. As Mr Morag’s view was that the door was never open, there had to be consensus about whether the door was open or closed.[121]

· There were two issues around the door from his perspective. The first one was what the practice was (open or closed etc.) as you had to step around the door to access the bed. Secondly, the layout of the house which was explained by Mr Atkin in terms of people’s line of sight. Mr Atkin stated that, hypothetically, if the door had been closed, his decision may have been different.[122]

· It was not his job to re-question witness statements unless there was an issue with one. Mr Atkin explained that that was the reason why he decided not to call any witnesses.[123]

· He outlined his practice as a Hearing Officer. Mr Atkin stated that there had been no need to ask any questions as the investigator had answered his questions in their report.[124]

· With respect to the grandfather’s statement, Mr Atkin explained that he had viewed this statement as lesser in terms of relevance even though it said that the grandfather had heard no yelling or screaming. This was because it was beyond the scope of his responsibility to make an assertion about the grandfather’s faculties.[125]

· He believed that he had applied the Briginshaw v Briginshaw test (Briginshaw) (balance of probabilities) fairly.[126]

· He had not been aware of Ms Hope’s previous involvement in Mr Morag’s case (Ms Hope had requested the original investigation). Mr Atkin stated that Ms Hope had already been appointed as administrative assistant to Mr Morag’s case prior to his own appointment as Hearing Officer.[127]

· After the recess, he was not alone in the room with Ms Jones and Ms Hope. Mr Atkin stated that he was alone in the room with Ms Hope and that everyone had entered the room together. Mr Atkin explained that Ms Jones had not been in the room alone with him. The reason for being in the room with Ms Hope was to discuss a procedural matter regarding the hearing.[128]

· He disagreed with Mr Morag Junior’s recollection of being outside the door trying to open it as it was closed and Ms Jones being in the room when they entered.[129]

· In his report, he had stated that he was satisfied that the door was not always open or shut. This was because, during the lengthy discussion about this issue, there was agreement that the normal practice was for the door to be either open or shut and for the door to be opened and closed as part of attempting to put LT to bed.[130]

· The agreement that it was the usual practice that the door was not always closed had informed his acceptance of Ms Wright’s evidence over that of Mr Morag. Mr Atkin explained that, if the accepted practice had been that the door was closed, then there would have been a very different outcome. On the basis that there was agreement that the usual practice was that the door was not always closed, Mr Atkin stated that he was then able to make a decision about the conflicting stories.[131]

· He had confirmed Ms Price’s recommendation that the allegation of serious misconduct against Mr Morag was substantiated. Mr Atkin stated that he had then determined that the disciplinary outcome was to be dismissal.[132]

Mr Morag’s submissions

It was stated by Mr Morag that the Department’s case was based on the assumption that more than one person had seen him yell and push resident LT. Mr Morag contended that the Department had only provided a single witness to the Commission who had been unable to provide a consistent statement which showed that she was an unreliable witness and should not be believed.[133] Further, it was argued that the Investigator (Ms Price) and the Review Officer (Mr Atkin) based their decision on the two witnesses (Ms Wright and Mr Anderson) who substantiated the allegations against him. The fact that Mr Anderson did not respond to Ms Price’s later questions should have been taken into consideration by the Investigator and the Review Officer.[134]

Mr Morag recounted that the incidents were first reported by Ms Wright to Mrs Carew during the team meeting on 2 December 2015. On that day, Ms Wright was said to have also completed an incident report which was provided to Mrs Carew. It was stated that Ms Wright had changed her statements and in effect had given more than five different statements. There were said to have been fundamental differences between the statements regarding time, location, participants and the event itself. In addition, Ms Wright’s evidence before the Commission was described as having presented a totally new version of events.[135]

Ms Wright’s first statement (in the incident report) was said to have been that she (Ms Wright) and Mr Anderson witnessed Mr Morag yelling at LT and LT persisting in exiting his bedroom. In an undated statement after writing the incident report, Ms Wright was said to have stated that, on one occasion, she and Mr Anderson saw Mr Morag push LT and that they were standing just outside the bedroom when this happened. Ms Wright was then said to have indicated, in an email dated 15 February 2016 replying to a question from Ms Price, that she was not sure whether Mr Anderson had directly observed the incident. A week later, in an email replying to a question from Ms Price, Ms Wright was said to have stated that, when she heard Mr Morag yell, she was in the lounge area with other young people and subsequently at the door of another resident’s bedroom. Further, Ms Wright was said to have stated that Mr Morag attempted to take LT to bed four times and then, in another statement, that LT got out of bed on between 5 to 10 occasions. During Ms Wright’s evidence before the Commission, Ms Wright was recalled to have said that she had started moving towards Mr Morag in order to assess the situation but that she could not recall what Mr Anderson was doing at the time that the led Mr Anderson to also be moving towards the bedroom. Further, it was recalled to have been Ms Wright’s evidence that she would have been a foot inside the room.[136]

It was submitted that Ms Wright’s recollections of the night were questionable at best. This was on the basis that Ms Wright denied having been on her mobile and having spoken to Mrs Carew despite this having been confirmed by Mrs Carew and Mr Morag.[137] In addition, it was stated that Ms Wright did not raise the incident with Mrs Carew or anyone else during the shift when the incident occurred. This was despite Mrs Carew’s and Ms Wright’s evidence that they were in contact during the shift in question.[138]

Further, it was argued that Ms Wright was unable to present a clear picture of the events of the night in question and so therefore was an unreliable witness. Mr Morag stated that, in Ms Wright’s statement of 14 January 2016, Ms Wright had indicated that the sequence of events was not clear in her mind but that she did know that, sometime later, she ended up going into LT’s room to soothe him. It was argued by Mr Morag that, Ms Wright’s evidence that she was sitting on LT’s bed in order to soothe him, had never been previously presented and did not fit the timeline and Ms Wright’s version of events. It was stated that, in previous versions, Ms Wright had stated only that she was outside the door looking in but that, during the Commission hearing, Ms Wright had said that she was a foot inside the door. Further, during cross examination, Ms Wright was recalled to have said that her recollection at the time of the hearing was better than at the time she gave her statement on 25 November 2015. This was refuted by Mr Morag on the basis of a High Court case.[139]

With respect to the door closed or open issue, it was argued by Mr Morag that Mrs Carew had agreed that LT’s door was always closed when putting LT to bed and that Ms Wright’s statement said that either Mr Morag or LT would close the door behind them after they went in. During cross examination, Ms Wright was recalled to have said that it was only on the last occasion that she could see through the door.[140]

In terms of the alleged pushing, it was stated that, in her 14 January 2016 statement, Ms Wright had said that she did not recall whether Mr Morag or LT had closed the door as the sequence of events was not clear. However, she remembered that she ended up going into LT’s room to soothe him. In Ms Wright’s witness statement of 9 November 2016, it was recounted that Ms Wright had said that she was standing about one foot inside the bedroom door. This was contrasted with Ms Wright’s evidence during the Commission hearing where Ms Wright said that she moved into the room during the alleged pushing.[141] Mr Morag submitted that, the fact that the door to LT’s bedroom was always closed meant that Ms Wright could not have witnessed any pushing inside the room and would not have been able to step into the room or sit on LT’s bed.[142]

Finally, Mr Morag submitted that Ms Wright was an unreliable witness and that, as the Commission did not have Mr Anderson available to question and as Ms Wright was the complainant, the Commission should not substantiate the allegations.[143] This was on the basis that, as Mr Anderson did not attend the hearing, Mr Anderson’s statements could not be taken into consideration by the Commission as he has not provided direct evidence to the Commission.[144]

The Department’s submissions

It was submitted by the Department that there was a valid reason for Mr Morag’s dismissal. This was because Mr Morag had yelled at and pushed a resident thereby failing to engage appropriately with a resident in his care. In the alternative, and without resiling from its primary position, the Respondent contended that either yelling at a resident or pushing a resident was failing to appropriately engage with a resident and therefore was a valid reason for Mr Morag’s dismissal.[145] It was stated that, by yelling at and pushing a resident, Mr Morag had caused serious and imminent risk to the resident’s health and safety and to the Respondent’s reputation as a provider of quality care for children living with disabilities.[146]

Ms Wright’s evidence

The Department contended that Ms Wright’s evidence was that Mr Morag was verbally aggressive and was yelling at LT whilst he was trying to get LT into bed. Ms Wright had seen LT come out of his bedroom on several occasions and stated that Mr Morag had continued yelling at LT to get to bed and that Mr Morag had become rougher in the way he was handling LT. Ms Wright was said to have acknowledged that Mr Morag’s voice was naturally loud. However, Ms Wright’s evidence was recalled to have been that there was a clear difference between his normally loud voice and the voice Mr Morag had used during this incident which she felt was yelling and was clearly aggressive.[147]

It was the Department’s contention that Ms Wright’s incident report, the witness statement provided during the review and the additional statement she had provided to her manager together with her witness statement and oral evidence before the Commission, were consistent. It was acknowledged that there were inconsistencies in Ms Wright’s evidence regarding how many times Mr Morag had yelled at LT. However, it was submitted that Ms Wright was clear in describing Mr Morag as having yelled at LT on multiple occasions.[148] Further, although Ms Wright agreed that Mr Morag’s voice was naturally loud, Ms Wright felt that the voice Mr Morag had used at the time in question was yelling and clearly aggressive.[149] In addition, it was said to have been Ms Wright’s evidence that Mr Morag was pushing LT so hard that he was stumbling and that, when she was just outside the door to LT’s bedroom, she had witnessed Mr Morag push LT from the outer chest and shoulder area backwards onto the bed. At this time, she was standing about 1 foot inside the bedroom door.[150]

The Department submitted that, although this was Ms Wright’s second shift working at this particular house, Ms Wright had 12 months’ experience as a Disability Support Worker. It was also stated that Ms Wright had no prior knowledge or experience with Mr Morag and had nothing to gain from reporting the allegation.[151]

Mr Anderson’s statement

It was said to have been, by the Department, that, in Mr Anderson’s signed statement, he had stated that he remembered Mr Morag shouting at LT telling him to go to bed about three times. As he could see that Mr Morag was getting distressed, he had said to Mr Morag that he would deal with LT. At one point, Mr Morag had grabbed LT’s blanket and yelled “you go to bed now” while kind of walking/dragging LT to his room. Mr Anderson then said that he saw Mr Morag push LT into his bedroom and then onto his bed. In addition, Mr Morag was recalled to have shouted to LT to ‘roll over’.[152]

Although Mr Anderson was not called to give evidence as the Department was unable to contact him, it was stated that Mr Anderson’s signed statement provided for, and authorised, the use of his statement in Fair Work Commission proceedings. The Department argued that the Commission should give strong weight to Mr Anderson’s statement in support of Ms Wright.[153]

Mr Morag’s evidence

The Department indicated that, at the time of the incident, Mr Morag was under management imposed workplace restrictions which required that he could not work without a supervisor present unless he had express permission. It was stated that Commissioner Bissett had found that these restrictions were lawful and reasonable given the issues raised in relation to Mr Morag’s performance and interactions with staff and residents.[154] In addition, Mr Morag had been given a formal warning for threatening to physically harm a resident on 16 April 2015.[155]

With respect to Mr Morag’s evidence, it was recalled that Mr Morag had never worked with only agency staff previously and that he thought that both of them were inexperienced and that he was frustrated at the perceived lack of support from them.[156] It was recounted that, at around 8pm, Mr Morag spoke to his supervisor, Mrs Carew, and advised that LT wasn’t sleeping. Mr Morag was told by Mrs Carew to stay until LT went to sleep. Mr Morag said that, in the course of settling LT, LT had left his room three times and that LT was not so happy. Mr Morag had conceded that Ms Wright and Mr Anderson may have thought that he was yelling but that it was just their interpretation. Further, Mr Morag was said to have denied that he yelled at LT to ‘roll over’ and that he always said ‘turn around’. In addition, it was stated by Mr Morag that Mr Anderson could not have heard him say ‘roll over’ because Mr Anderson was in the other room.[157]

In terms of Mr Morag’s statement that, when a carer entered LT’s bedroom, the door was always immediately closed and that this was a strict requirement set out in LT’s Behaviour Support Plan and Speech Pathology Report, the Department indicated that neither document provided for this requirement. It was stated that Mr Atkinson was satisfied that it was the usual practice that the door of LT’s room was not always shut when LT was in the room. This was said to have been confirmed by Mrs Carew and eventually accepted by Mr Morag.[158]

With respect to Mr Morag’s contention that Ms Wright had falsified the allegation against him because Ms Wright was fearful that she would lose her position as a result of conduct by her that had been allegedly witnessed by Mr Morag, it was stated that it was not until after Mr Morag had been advised of the allegation against him that he reported his concerns regarding Ms Wright’s conduct. This was said to have been despite Mr Morag not reporting the incident on the night or when he spoke to Mrs Carew after LT was asleep. The Department contended that Mr Morag did not report the incident at the time because he did not believe that anything untoward had happened. It was argued that the fact that Mr Morag has subsequently fabricated this incident meant that he was an unreliable witness.[159]

It was argued by the Department that the decision was made in relation to Mr Morag’s dismissal having regard to the balance of probabilities and in accordance with the principles set out in Briginshaw.[160] It was stated that the evidence showed that LT exited his bedroom on several occasions during the evening in question and that, during those occasions, Mr Morag was observed to have yelled instructions and been forceful in attempting to get LT to go to bed and stay there. It was said that this eventually culminated in Mr Morag pushing LT onto the bed. The Department contended that the evidence of Ms Wright, together with the corroborating statement of Mr Anderson, should be relied upon and preferred over the evidence of Mr Morag.[161]

Considerations and Conclusions

As set out in paragraph [7] above, the Commission is firstly required to make findings of fact as to whether or not Mr Morag yelled at and pushed LT on 25 November 2015, as set out in the allegations by the Department.

The parties agreed that the relevant test for determining whether the conduct occurred was that of the balance of probabilities, as set out in the decision in Briginshaw. In cases of serious misconduct, the principle set out in Briginshaw is the applicable test for deciding whether the alleged conduct occurred. In that case, the High Court (Dixon J) said:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[162]

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[163], Chief Justice Mason and Justices Brennan, Deane and Gaudron referred to the decision in Briginshaw and confirmed that the ordinary standard of proof is proof on the balance of probabilities. The High Court also said that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary depending on the seriousness of an allegation.

I respectfully adopt the principle of the balance of probabilities in relation to the standard of proof required for determining whether the alleged misconduct by Mr Morag occurred.

Did Mr Morag yell at and push LT as alleged by the Department?

The oral witness evidence before the Commission regarding the alleged yelling and the pushing incident was that of Mr Morag and Ms Wright. As indicated in paragraph [8] and [12] above, Mr Anderson did not give oral evidence as the Department was unable to contact him. Mr Anderson’s account of events, as given to Ms Price, is before the Commission in the form of his written statement. In accordance with the usual practice, little weight can be given to the statement of Mr Anderson, as Mr Anderson’s statement was unable to be challenged as Mr Anderson did not give evidence before the Commission.

Ms Wright’s account of events on the night of 25 November 2015 can be found in a number of documents in addition to Ms Wright’s oral evidence before the Commission. The first account of what happened is set out in Client Incident Report Form[164] which Ms Wright filled out at the request of Mrs Carew, on 2 December 2015. In the Client Incident Report Form, Ms Wright described what had happened as:

· She and Mr Anderson witnessed Mr Morag being verbally aggressive and yelling at LT, between 7.00 pm and 7.30 pm, when LT persisted on leaving his bedroom. Mr Morag was heard and seen to be forcefully yelling at LT up close and “pointing his finger at LT at close range and yelling very loudly for LT to go to bed now”.[165]

· She witnessed Mr Morag push LT “from the end of his bed, onto his bed … and yell “stay in your bed”.[166] This had occurred towards 8pm.[167]

Also at the request of Mrs Carew, Ms Wright provided an undated statement to Mrs Carew.[168] It was Ms Wright’s evidence that she had written the statement within a couple of days of the incident. In this statement, Ms Wright said that:

· Mr Morag had been making regular attempts to encourage LT to go to bed by taking LT into his bedroom and telling him to lay down and go to sleep.[169]

· When LT got out of bed again on several occasions, Mr Morag had yelled very loudly at LT to “go to bed now” and that he had “had enough, go to sleep”. This had happened between 5 and 10 times.[170]

· She saw Mr Morag (and Mr Anderson was also present) push LT onto the bed “with enough force for LT to land back on the bed from head to toe laying on his back”.[171] Mr Morag was stated to have “used his two open hands to push from LT’s outer chest and inner arms region”.[172] LT was standing at the end of his bed, between Mr Morag and the end of his bed at the time of the push.[173] Prior to the push, Mr Morag was standing less than a foot away from LT and was pointing his finger in LT’s face and was persistently yelling “go to bed now”.[174]

On 14 January 2016, Ms Wright made a statement[175] to Ms Price, the investigator. In this statement, Ms Wright stated that:

· Around 7.00 pm, Mr Morag attempted about 4 times to take LT to his bedroom and “either Mr Morag or LT would close the door behind them after they went in”.[176] Each time LT came out of his bedroom, Mr Morag “would yell at LT telling him to “Get back in your room” while standing over LT and sort of walking him back towards the bedroom”.[177]

· The last time that LT came out of his room, Mr Morag “grabbed LT by the back of his shoulders and walked/pushed” LT back to his room. LT had “stumbled a bit”.[178] When in LT’s bedroom, Mr Morag had let go of LT’s shoulders. As LT had turned around to face Mr Morag, Mr Morag “yelled at the top of his lungs “Get into bed” “I’ve had enough”. It was stated that Mr Morag was standing over LT and pointing his finger in LT’s face.[179] Mr Morag had then “pushed LT between his chest and shoulder area”. LT fell back on his bed with enough force “to bounce up and down a few times on his bed … ”.

Ms Wright also hand drew a map of LT’s bedroom and where LT and his bed, Mr Morag, herself and Mr Anderson were at the time of the alleged push by Mr Morag. This was attached to her statement to the investigator. It showed both she and Mr Anderson as being outside the door when the push happened.[180]

In an email to the investigator, dated 15 February 2016, Ms Wright advised that she was not sure whether Mr Anderson had directly observed the pushing incident that she had reported.[181]

Later on in the email chain, on 22 February 2016, Ms Wright said that she thought that Mr Anderson was in the living area ‘near us’ when the push occurred but could not specifically recall with 100% clarity. In this email, Ms Wright described again what had happened and also stated that she was “directly next to and behind throughout the incident; following and then at the door of LT’s room when LT was pushed onto the bed”.[182]

In her oral evidence in the Commission, Ms Wright’s account of what had happened was that:

· Mr Morag had directed LT into his bedroom a number of times and Mr Morag would close the door and presumably tried to settle LT.[183]

· The last time that Mr Morag redirected LT into the room, she was outside the door. This was because Mr Morag was becoming increasingly frustrated and louder. As the push happened, she had taken a step inside the open door and had continued to move through the door as things were happening.[184]

Ms Wright’s account of events, as set out in her witness statement[185] in the Commission:

· She remembered hearing Mr Morag yelling at LT. Each time LT came out of his bedroom, she saw Mr Morag position himself in front of LT, as if to block his path, and take his shoulder and direct him back towards his bedroom.[186]

· After a while, Mr Morag seemed to be getting increasingly annoyed with LT and continued yelling at him and became “rougher in the way he was handling him”.[187]

· She saw Mr Morag take LT back again to his bedroom and so had started to follow Mr Morag as he was pushing LT so hard that he was stumbling as he was trying not to “trip or fall”.[188]

· From just outside the door, she saw Mr Morag “push LT from the outer chest and shoulder area backwards onto his bed. LT “bounced on the mattress with the force of the push”. By this stage, she was standing about one foot inside the bedroom door.[189]

For his part, Mr Morag gave two statements as part of the investigation. The first one[190] was on 15 February 2016 and the second one was undated[191] but after the first statement.

In his first statement to the investigator, Mr Morag’s version of events was that:

· LT’s routine was to go to sleep with the lights on and he liked to have his door closed immediately for the rest of the night.[192]

· At about 7.30 pm, LT approached him in the kitchen and indicated that he wanted to go to bed and for him to sit near him and hold his hand. He had left LT’s room as he thought he had gone to sleep but shortly after, LT had come out of his room.[193]

· After LT had sat in the lounge for a few minutes, he had taken LT’s hand and LT had put it under his arm and he had led him back to his bedroom.[194]

· Just before 8.00 pm, he had left LT’s room to log out and LT had followed him and sat in the lounge. The phone had rung and he had spoken with Mrs Carew who asked him to stay until LT had gone to sleep.[195]

· At around 8.15 pm, he had again encouraged LT to go to his bedroom so he could go to sleep “so he (LT) put his hand under my arm and we went to his room”.[196]

· He suddenly heard JV shouting and so had left LT’s room and saw Ms Wright holding JV’s arms behind his back in a restraint. He had told Ms Wright to let go of JV and to remove herself by going to the office and write an incident report.[197]

· He had returned to LT’s room and had sat on the bed beside him until he fell asleep.[198]

· LT had come out of his bedroom twice. The first time was because JV was “shouting terribly”. The second time, it was with him just before 8.00 pm.[199]

· He did not yell at LT or point his finger at him but he was firm and assertive. He has a higher volume voice naturally.[200]

· JV had grabbed LT’s blanket and he had helped LT release the blanket. He had never dragged LT into his room. He had only ever put LT’s hand under his arm and walked with him.[201]

· Under no circumstances would he have grabbed LT by the back of his shoulders and walk/push LT into his room.[202]

· When he exited LT’s room before 8.00 pm, Ms Wright was on the sofa in the lounge room using her mobile. At around 8.00 pm (when the push allegedly happened), he was in the office talking to Mrs Carew.[203]

· He did not push LT onto his bed. LT’s door was shut and his mattress was very hard to bounce up and down on.[204]

Mr Morag’s second statement to the investigator was in very similar terms as his statement dated 15 February 2016. There is therefore no need to summarise the second statement.

The evidence that Mr Morag gave in the Commission was consistent in terms of the previous statements he had provided to the investigator. The only variation was the number of times LT had left his room (2 - 3 times) in his oral evidence compared with twice in his written statements.

For completeness, although little weight will be placed on Mr Anderson’s statement, Mr Anderson said that he thought Mr Morag had yelled about three times at LT to go to bed – at around 8.00 pm.[205]

Further, Mr Anderson recorded seeing Mr Morag grab hold of LT’s blanket and yell at him to go to bed whilst walking/dragging LT to his room by the blanket. It was stated by Mr Anderson that he saw Mr Morag give LT “a pretty decent push” from behind, into his bedroom and LT fell straight onto his bed.[206] It was stated that Mr Morag had then shouted “Roll over” whilst pointing to indicate that LT was to roll over and face away from the door.[207]

Conclusions

The Department alleged that:

(a) each time LT left his bedroom (between about 7.00 pm – 7.30 pm), Mr Morag:

owas very forceful in yelling at LT in close proximity
opointed his finger at LT, and
oyelled “go to bed now” and “I have had enough, go to sleep”.

(b) at around 8.00 pm, Mr Morag:

opushed LT with both hands on LT’s outer chest and inner arms area, from the end of the LT’s bed onto LT’s bed, and
oyelled “stay in your bed” and/or “roll over, go to sleep”.

Taking into account all of the evidence before the Commission, I find, on the balance of probabilities, that Mr Morag did not forcefully yell at LT in close proximity or point his finger at LT and yell at him to go to bed. Secondly, on the balance or probabilities, I find that Mr Morag did not push LT, with both his hands, from the end of his bed onto his bed and then yell at him to stay in his bed and/or roll over. The reasons for these findings are as follows:

The Commission has before it two conflicting accounts of events on 25 November 2015. One account was directly from the Applicant, Mr Morag, and the other was directly from Ms Wright who allegedly witnessed Mr Morag’s behaviour and conduct on the night in question. As indicated earlier, little weight will be placed on Mr Anderson’s statement. In addition, Ms Wright became unsure as to whether Mr Anderson had witnessed the pushing incident. Therefore, it was only Ms Wright who allegedly witnessed the push.

Mr Morag has maintained from the start that he neither yelled at LT or pushed him onto his bed. Mr Morag also argued that “roll over” was not the kind of language that he used. The statements made and the evidence Mr Morag has given about what happened has been consistent throughout. The only inconsistency in his account has been the number of times LT left his room – either twice or 2 - 3 times. In my view, this variation in the number of times that LT left his room is not material and does not affect the consistency or credibility of Mr Morag’s version of events.

On the other hand, Ms Wright was not consistent in her account of events on 25 November 2015. Ms Wright’s version of events changed between writing the incident report and her evidence before the Commission. One of the key changes was Ms Wright changing her mind about whether Mr Anderson had been standing beside her at the time of the push. In the Client Incident Report Form, Ms Wright stated that Mr Anderson and herself had witnessed Mr Morag’s behaviour on the night in question. However, in an email to Ms Price about 6 weeks later, Ms Wright said that she was not 100% sure whether Mr Anderson had witnessed the pushing incident that she had reported. During Ms Wright’s evidence in the Commission, Mr Anderson was not mentioned to any great extent.

Secondly, Ms Wright’s version of events about where she was when the push occurred has altered. At the beginning, Ms Wright said that she (and Mr Anderson) were standing outside the door. Ms Wright had drawn a map to show the location of everyone at the time of the push. By the time of her evidence in the Commission, Ms Wright was standing a foot inside the door when she witnessed the push. Ms Wright’s version of events began to change starting with her email to Ms Price on 22 February 2016. In this email, Ms Wright’s account went from having been outside the door to being “directly next to and behind throughout the incident” and to being at the door of LT’s bedroom at the time of the push. In Ms Wright’s oral evidence before the Commission, Ms Wright stated that she had taken a step inside the door at the time of the push and had continued to move through the door. In Ms Wright’s witness statement, Ms Wright said that she was a foot inside the door at the relevant time.

Between December 2015 and Ms Wright’s statement to the investigator in January 2016, the force of the push had become so forceful that LT had “bounced up and down on the bed a few times”. As well, Ms Wright seems to have added Mr Morag grabbing the back of LT’s shoulders, the last time he came out of his room, and then walking/pushing LT back in his room so he had stumbled. The number of times that LT came out of his bedroom changed from 5 - 10 times to 4 times. Neither of these contentions formed part of the allegations which were contained in the Department’s letter to Mr Morag on 14 December 2015.

Further, Ms Wright’s description of the way in which Mr Morag had handled LT seems to have gotten rougher. Initially, in the documentation of December 2015, there was no mention of LT being grabbed by the shoulders and being walked/pushed so that he stumbled back to his bedroom on the last occasion. This (grabbing LT by the shoulders) first appeared in Ms Wright’s statement to the investigator and was repeated during Ms Wright’s evidence before the Commission. However, Ms Wright’s evidence in the Commission stated that Mr Morag was pushing LT “so hard that he was stumbling”. Again, Ms Wright’s contention that Mr Morag had grabbed LT by the shoulders and walked/pushed LT back to his bedroom so that he was stumbling, on the last occasion, did not form part of the allegations that were put to Mr Morag.

In addition, in Ms Wright’s statement to the investigator, Ms Wright indicated that she could not recall having spoken to Mrs Carew on 25 November 2015. During her evidence in the Commission, Ms Wright stated that she had spoken to Mrs Carew on the night in question. This was said to be because her recollection of events in February 2017 was better than in January 2016 when she gave her statement to the investigator.

Finally, it was only during Ms Wright’s evidence in the Commission that Ms Wright said that she had gone in and soothed LT after the pushing incident. This matter had not been mentioned previously by Ms Wright.

The Commission did not find Ms Wright to be a credible witness. Given the changeability and inconsistency in Ms Wright’s evidence, it is not possible for the Commission to rely on Ms Wright’s evidence to establish the facts as contended by the Department in terms of what happened on 25 November 2015. On the other hand, Mr Morag was consistent in his account of events and denied that he had conducted himself as alleged by the Department.

With respect to the Department’s first allegation, this was essentially what Ms Wright had reported when she had completed the Client Incident Report Form on 2 December 2015. In an email to Ms Price, dated 22 February 2016, Ms Wright stated that she was in the lounge area with other young people when she had heard Mr Morag yell at LT. It was not disputed that Mr Morag has a naturally loud voice and it was Mr Morag’s evidence that he was being assertive in his efforts to get LT to stay in bed. Therefore, it is probable that a combination of both of these factors resulted in it appearing that Mr Morag was yelling at LT.

In terms of whether Mr Morag pointed his finger at LT and whether the yelling was in close proximity to LT, there is conflicting evidence before the Commission from Ms Wright and Mr Morag. Given the unreliability of Ms Wright’s account of events, the Commission is unable to prefer Ms Wright’s evidence over that of Mr Morag. Therefore, on the balance of probabilities, the Commission finds that Mr Morag did not yell in close proximity to LT nor point his finger at LT.

With respect to the pushing incident, a key aspect of this issue was whether the normal practice was for LT’s bedroom door to be open or closed. It was Ms Wright’s evidence, together with that of Mr Morag, that when LT was being put to bed, the door would be closed behind them after they entered LT’s room. I am therefore satisfied that the usual practice was for LT’s door to be closed when LT and Mr Morag went into the bedroom so that LT could go to bed and go to sleep. As I have found that Ms Wright was not a credible witness, I have not been persuaded that there was any deviation from the normal door closing routine at LT’s bedtime on 25 November 2015. Therefore, it would not have been possible for Ms Wright to have witnessed Mr Morag pushing LT onto the bed and yelling at him to stay in bed, as the door would have been closed. Accordingly, on the balance of probabilities, I find that Mr Morag did not push LT onto his bed and then yell at him to stay in bed. It is noted that it was only Ms Wright who had alleged that Mr Morag had yelled at LT, to stay in bed.

In terms of the allegation that Mr Morag had also, or in he alternative, yelled “roll over, go to sleep”, this statement had been made by Mr Anderson but not by Ms Wright. Given that Mr Anderson was not available for cross examination, little weight can be placed on Mr Anderson’s evidence. In addition, Mr Morag’s evidence that that was not language he would normally use, is accepted. Therefore, the Commission also finds that, on the balance of probabilities, Mr Morag did not yell at LT to “roll over, go to sleep”.

Was there a valid reason?

With respect to whether there was a valid reason for Mr Morag’s dismissal, having found that, on the balance of probabilities, Mr Morag was not verbally aggressive towards LT and that he did not point his finger at LT and that he did not push LT onto his bed and then yell at him, I am not satisfied that there was a valid reason for Mr Morag’s dismissal. As the reasons for Mr Morag’s dismissal were that the allegations made against him were substantiated, it follows that these reasons were not valid reasons for the dismissal as, on the balance of probabilities, it has been found that Mr Morag did not engage in serious misconduct as was alleged.

Section 387(b) - notified of the reason

Mr Morag was notified of the reason for his dismissal in the letter of termination dated 27 July 2017 where Mr Morag was advised that the serious misconduct had been substantiated following the disciplinary hearing.[208] Mr Morag had previously been advised of the allegations of alleged misconduct in a letter dated 14 December 2016[209] and during the investigation and at the disciplinary review hearing.[210]

Section 387(c) - opportunity to respond

There were two processes conducted by the Department in relation to the allegations that had been made against Mr Morag. The first process was an investigation which was conducted by Ms Price. As part of the investigation, Mr Morag was interviewed by Ms Price on 15 February 2016 and a written statement was produced. Mr Morag also provided a further statement to Ms Price at some later time.

The second process was a disciplinary hearing, the purpose of which was to decide whether to confirm Ms Price’s recommendation that the allegations against Mr Morag had been substantiated. The Hearing Officer, Mr Atkin, who conducted the disciplinary hearing was also required to make a discipline outcome determination.

Mr Morag submitted that the dismissal was procedurally unfair on a number of grounds. The first ground concerned Mr Morag’s request to have witnesses attend the disciplinary hearing. It was Mr Morag’s contention that there was a reason why Mr Atkin had not received a response to his question about whether Mr Morag had wanted witnesses to attend. This was because he had emailed Ms Jones previously requesting witnesses and the reasons for the request.[211]

Secondly, it was argued that the appointment of Mr Atkin and the timing of Mr Atkin’s appointment was procedurally unfair. It was stated that, during his evidence, Mr Atkin had said that he was appointed on 26 June 2016 which he thought was the Friday before the hearing. Mr Morag indicated that 26 June 2016 was a Sunday so he thought that Mr Atkin had therefore been appointed on Monday 27 June 2016. As the hearing commenced on Friday 1 July 2016, it was argued that the Department had breached the enterprise agreement which required the Hearing Officer to be appointed at least 7 working days prior to the hearing.[212]

In addition, Mr Morag expressed concern about Mr Atkin’s inexperience and lack of training. This was on the basis that this was Mr Atkin’s first disciplinary hearing and that Mr Atkin did not seem to understand the principles in Briginshaw.[213]

Finally, Mr Morag alleged apprehended bias against Mr Atkin. This was on the basis that Ms Hope, who had been involved in the allegations, had approached Mr Atkin to be the Hearing Officer and had then become Mr Atkin’s assistant during the disciplinary hearing. It was argued that Ms Hope represented management and so would have been biased towards management. Mr Morag also contended that Mr Atkin had spent time with Ms Jones, who was representing management, in the hearing room with the door closed.[214]

In response, the Department submitted that Mr Morag’s dismissal was procedurally fair and that Mr Atkin was an impartial decision maker. It was stated that Mr Atkin had no prior knowledge about Mr Morag’s case and no personal knowledge or experience with Mr Morag. The Department contended that there was no basis for a claim of apprehended bias as the Department was being represented by Mrs Carew and Ms Bowman and not Ms Hope or Ms Jones. It was explained that Ms Hope and Ms Jones were performing administrative tasks as part of their role as Human Resources Officers. Finally, Mr Atkin’s evidence was referred to where he had said that the discussion with Ms Jones, without Mr Morag present, concerned timetabling the hearing to accommodate Mr Morag’s request to finish early on religious grounds.[215]

I have considered the issues raised by Mr Morag in relation to procedural fairness and apprehended bias. I have not been persuaded that apprehended bias was shown by Mr Atkin nor that the process was unfair. On the basis of the documentation before me, I find that Mr Morag was given a proper opportunity to respond to the allegations.

Section 387(d) - support person

The Department did not refuse Mr Morag the assistance of a support person. Ms Donal, a Health and Community Services Union (HACSU) representative, accompanied Mr Morag to the interview with Ms Price on 15 February 2016 and Ms Van Der Weil, a HACSU representative, attended the disciplinary hearing with Mr Morag on 1 July 2016.

Section 387(e) - warned about unsatisfactory performance

Mr Morag was dismissed due to his conduct. This subsection is therefore not relevant in this matter.

Section 387 (f) and (g) - size of the employer and specialist human resources

The Department is a large employer and has dedicated human resources management specialists and expertise.

Section 387(h) - any other matters

The Department submitted that other relevant matters were that Mr Morag had just three years of service as a casual Disability Support Worker and had two prior warnings for misconduct.[216]

Considerations and Conclusions

Having taken account of all of the factors set out in section 387 of the Act, on balance, I find that the dismissal was harsh, unjust and unreasonable. Although procedural fairness was afforded to Mr Morag, there was not a valid reason for his dismissal.

Remedy

Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390      When the FWC may order remedy for unfair dismissal
(1)       Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)       the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)       the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3)       The FWC must not order the payment of compensation to the person unless:
(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)       the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

With respect to the requirements of section 390, I am satisfied that Mr Morag was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Morag has made an application under section 394 of the Act (section 390(2)).

During the hearing, the Department stated that it wished to be formally heard in relation to remedy in the event the Commission found that Mr Morag had been unfairly dismissed.[217]

Accordingly, a telephone Directions conference with the parties will be held at a time to be fixed. The purpose of the Directions conference is to discuss the process for dealing with Remedy and timetable accordingly.

Appearances:

O Morag for the Applicant
N Keogh from the Respondent

Hearing details:

2017.
Melbourne:
February 22, 23.

Final written submissions:

Applicant, 23 March 2017
Respondent, 13 April 2017
Applicant, 4 May 2017

[1] Exhibit A2 at Attachment YM10

[2] Exhibit R4 at Attachment CP2 Appendix 4

[3] Exhibit A1 and Transcript PN 307 - 310

[4] Ibid PN 296

[5] Ibid

[6] Ibid PN 562 - 565

[7] Ibid PN 570 - 572

[8] Exhibit R4 at Attachment CP2 Appendix 11 at paragraphs 17 - 20 and 34

[9] Ibid at paragraphs 21 and 23 and Transcript PN 296

[10] Ibid Appendix 11 at paragraphs 27 - 28 and 35 and Appendix 19

[11] Ibid Appendix 11 at paragraph 29 and Appendix 19

[12] Ibid Appendix 11 at paragraph 30, ibid Appendix 19 and Transcript PN 406 - 415, 420, 423 and 441 - 44

[13] Ibid PN 579 - 584

[14] Exhibit R4 at Attachment CP2 Appendix 11 at paragraph 32

[15] Ibid at paragraph 38

[16] Transcript PN 301 and 450 - 451

[17] Ibid PN 450 - 458 and 510 - 513

[18] Ibid PN 302

[19] Exhibit R4 at Attachment CP2 Appendix 11 at paragraph 35

[20] Ibid at paragraph 39, Exhibit A2 at Attachment Y13 at paragraph 39 and Transcript PN 552 - 559

[21] Transcript PN 317 - 318

[22] Ibid PN 321 - 326 and 337 - 348

[23] Ibid PN 350 - 354 and 357 - 358

[24] Ibid PN 359 - 361 and 366

[25] Ibid PN 368 - 378 and 387 - 396

[26] Ibid PN 399 - 405

[27] Ibid PN 418 - 422, 426 - 429, 440 and 443 - 446

[28] Ibid PN 449

[29] Ibid PN 531 - 536 and 574 - 575 and Exhibit A2 at Attachment Y13 at paragraph 31

[30] Ibid PN 537 - 543 and 550 - 551

[31] Ibid PN 1377 and 1474 - 1476

[32] Ibid PN 1478 - 1479 and 1690 and Exhibit R3 paragraph 9

[33] Ibid PN 1392 - 1403 and 1695 - 1696 and ibid at paragraph 10

[34] Ibid PN 1392 - 1394

[35] Ibid PN 1409 - 1413

[36] Ibid PN 1418

[37] Ibid PN 1419 - 1420

[38] Ibid PN 1421 - 1422

[39] Ibid PN 1425 - 1428

[40] Ibid PN 1429 - 1454, 1501 - 1502 and 1704

[41] Ibid PN 1456

[42] Ibid PN 1458 - 1468

[43] Ibid PN 1469 - 1471

[44] Ibid PN 1472 - 1473

[45] Ibid PN 1483 - 1484, 1512 - 1513, 1516 and 1561 and Exhibit R3 at paragraphs 18 - 20 and Attachments CW1 and CW2

[46] Ibid PN 1485

[47] Ibid PN 1488

[48] Ibid PN 1491

[49] Ibid PN 1497

[50] Exhibit R3 at paragraphs 14 - 15

[51] Transcript PN 1502 - 1503

[52] Ibid PN 1698 - 1702, 1705, 1712, 1715, 1726 - 1733 and 1742 - 1744 and Exhibit R3 at paragraphs 15 - 17

[53] Ibid PN 1506 - 1511 and 1703

[54] Ibid PN 1514

[55] Ibid PN 1517 - 1518

[56] Ibid PN 1523 - 1524 and 1619 - 1693

[57] Ibid PN 1525 - 1526

[58] Ibid PN 1565, 1570 - 1571 and 1697

[59] Ibid PN 1580 - 1581

[60] Ibid PN 1614 - 1618

[61] Ibid PN 1659 - 1666

[62] Ibid PN 1673 - 1680

[63] Ibid PN 1686 - 1688

[64] Ibid PN 1689 and 1698

[65] Ibid PN 1055 - 1056

[66] Ibid PN 724 - 725, 755 - 759, 762 - 765 and 768 - 770

[67] Ibid PN 793 - 796, 806 - 811, 857 - 858 and 1071 - 1072

[68] Ibid PN 812

[69] Ibid PN 813 - 817

[70] Ibid PN 841

[71] Ibid PN 843 - 845

[72] Ibid PN 847 - 848

[73] Ibid PN 859 - 862

[74] Ibid PN 863

[75] Ibid PN 875 and 880 - 884

[76] Ibid PN 1073 - 1074 and Exhibit R4 at Attachment CP2 Appendix 6 at paragraph 3

[77] Ibid PN 1075 - 1076 and ibid at paragraph 4

[78] Ibid PN 886 - 889

[79] Ibid PN 895 - 896

[80] Ibid PN 905 - 918

[81] Ibid PN 924 - 925

[82] Ibid PN 938 - 940

[83] Ibid PN 958 - 962, 1043, 1047 and 1078 and Exhibit R4 at Attachment CP2 Appendix 6 at paragraph 8

[84] Ibid PN 1164 - 1173, 1177 - 1198 and 1202

[85] Ibid PN 962 and Exhibit R4 at Attachment CP2 Appendix 6 at paragraphs 7 - 8

[86] Ibid PN 969 - 973

[87] Ibid PN 989

[88] Ibid PN 989 - 994

[89] Ibid PN 1033 - 1041

[90] Ibid PN 1051

[91] Ibid PN 1067

[92] Ibid PN 1057 - 1058 and 1068 - 1069

[93] Ibid PN 1079 - 1086

[94] Ibid PN 1135, 1147 and 1150

[95] Exhibit R4 at Attachment CP2 Appendix 4

[96] Ibid Appendix 4 at paragraph 6

[97] Ibid

[98] Ibid at paragraph 7

[99] Ibid

[100] Ibid at paragraph 8

[101] Ibid at paragraph 11 and Transcript PN 1772 - 1773

[102] Transcript PN 1774 and 1952

[103] Ibid PN 1789

[104] Ibid PN 1791 - 1792

[105] Ibid PN 1806

[106] Ibid PN 1810

[107] Ibid PN 1814 - 1815

[108] Ibid PN 1816 - 1818

[109] Ibid PN 1822 - 1834, 1955 and 1957

[110] Ibid PN 1861 - 1862

[111] Ibid PN 1863 - 1865, 1954 and 1956

[112] Ibid PN 1866 - 1867

[113] Ibid PN 1871

[114] Ibid PN 1880 - 1882

[115] Ibid PN 1884 - 1886

[116] Ibid PN 1913, 1920 and 1944 and Exhibit R4 at paragraph 10

[117] Ibid PN 1958 - 1960

[118] Ibid PN 1273

[119] Ibid PN 1274 - 1275

[120] Ibid PN 1275

[121] Ibid PN 1276 - 1277 and 1285

[122] Ibid PN 1284 and 1286 - 1287

[123] Ibid PN 1289

[124] Ibid PN 1291 - 1292

[125] Ibid PN 1293 - 1294

[126] (1938) 60 CLR 336, Transcript PN 1290 and 1296 and Exhibit R2 at paragraph 7

[127] Transcript PN 1298 - 1301 and 1305

[128] Ibid PN 1308 - 1309

[129] Ibid PN 1310

[130] Ibid PN 1319 - 1323

[131] Ibid PN 1326 - 1331

[132] Exhibit R2 at paragraph 7

[133] Applicant’s Closing Submissions, dated 23 March 2017, at paragraphs A.1 - 4

[134] Ibid at page 3

[135] Ibid at paragraphs 1(a) and (b) on page 3 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraphs 1(d) and (e) on pages 2 - 3

[136] Ibid at paragraph 1(c)(i) - (xii) on pages 4 - 5 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraphs 1(d) and (j)

[137] Ibid at paragraph 2 on pages 5 - 6 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 1(f)

[138] Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraphs 1(h) - (i) on page 3

[139] Applicant’s Closing Submissions, dated 23 March 2017, at paragraphs 3 - 4 on pages 6 - 8 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 1(g)

[140] Ibid at paragraphs 5(a) - (d) on page 8 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 2(a)

[141] Ibid at paragraph 5(e) - (g) on page 8

[142] Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 2(d)

[143] Applicant’s Closing Submissions, dated 23 March 2017, at page 9 and Applicant’s Submissions in Response to the Respondent's Closing Submissions, dated 4 May 2017, at paragraphs 1(a) and (b)

[144] Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 3 on page 5

[145] Respondent’s Closing Submissions, dated 13 April 2017, at paragraphs 2 - 3

[146] Exhibit R1 at paragraph 8

[147] Respondent’s Closing Submissions, dated 13 April 2017, at paragraphs 4 and 7

[148] Ibid at paragraphs 5 - 6

[149] Ibid at paragraph 7

[150] Ibid at paragraph 8

[151] Ibid at paragraph 11

[152] Ibid at paragraph 12

[153] Ibid at paragraph 13

[154] Ibid at paragraph 14

[155] Exhibit R1 at paragraph 12

[156] Respondent’s Closing Submissions, dated 13 April 2017, at paragraph 15

[157] Ibid at paragraphs 17 - 19

[158] Ibid at paragraphs 20 - 22

[159] Ibid at paragraphs 23 - 28

[160] Exhibit R1 at paragraph 13.1 and Respondent’s Closing Submissions, dated 13 April 2017, at paragraphs 29 - 30

[161] Respondent’s Closing Submissions, dated 13 April 2017, at paragraphs 31 - 32

[162] (1938) 60 CLR 336 per Dixon J, at pp.362 - 363

[163] (1992) 67 ALJR 170 cited in Guneyi v Melbourne Health T/A Royal Melbourne Hospital[2012] FWA 10270 at [7]

[164] Exhibit R4 at Attachment CP2 Appendix 14

[165] Ibid Appendix 14 at page 2

[166] Ibid

[167] Ibid

[168] Exhibit R4 at Attachment CP2 Appendix 2

[169] Ibid

[170] Ibid

[171] Ibid

[172] Ibid

[173] Ibid

[174] Ibid

[175] Exhibit R4 at Attachment CP2 Appendix 1

[176] Ibid Appendix 1 at paragraph 8

[177] Ibid

[178] Ibid at paragraph 9

[179] Ibid

[180] Ibid Appendix 1

[181] Exhibit R4 at Attachment CP2 Appendix 3

[182] Ibid

[183] Transcript PN 1501 - 1503

[184] Ibid PN 1451 - 1454 and 1698 - 1703

[185] Exhibit R3

[186] Ibid at paragraphs 14 - 15

[187] Ibid at paragraph 16

[188] Ibid at paragraph 17

[189] Ibid

[190] Exhibit R4 at Attachment CP2 Appendix 11

[191] Ibid Appendix 16

[192] Ibid Appendix 11 at paragraph 12 and 27

[193] Ibid at paragraphs 27 - 28

[194] Ibid at paragraph 28

[195] Ibid at paragraph 29

[196] Ibid at paragraph 30

[197] Ibid

[198] Ibid at paragraphs 30 - 31

[199] Ibid at paragraph 32

[200] Ibid at paragraph 34

[201] Ibid at paragraphs 35 - 36

[202] Ibid

[203] Ibid at paragraph 37

[204] Ibid at paragraph 38

[205] Exhibit R4 at Attachment CP2 Appendix 4 at paragraph 6

[206] Ibid at paragraph 7

[207] Ibid

[208] Exhibit A2 at Attachment YM10

[209] Exhibit R4 at Attachment CP2 Appendix 9

[210] Ibid and Exhibit R2 at Attachment MA1

[211] Applicant’s Closing Submissions, dated 23 March 2017, at paragraphs 1 - 5 on pages 9 - 10

[212] Ibid at paragraphs 8 - 9 on page 10

[213] Ibid at paragraph 10 on pages 10 - 11 and Applicant’s Submissions in Response to the Respondent’s Closing Submissions, dated 4 May 2017, at paragraph 4 on page 7

[214] Ibid at paragraphs 12 - 17 on pages 11 - 12 and ibid at paragraph 4 on page 7

[215] Respondent’s Closing Submissions, dated 13 April 2017, at paragraphs 33 - 36

[216] Exhibit R1 at paragraph 26

[217] Transcript PN 256 - 261

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