PR973305
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment

Trudi Daly

Applicant

and

Bendigo Health Care Group

Respondent

(U2005/6188)

SENIOR DEPUTY PRESIDENT KAUFMAN

MELBOURNE, 13 JULY 2006

Termination of employment – valid reason – summary dismissal – misconduct – disparity of treatment between employees

REASONS FOR DECISON

[1] On 31 October 2005 Mrs Trudi Daly filed an application for relief in relation to the termination of her employment on 11 October 2005 by the Bendigo Health Care Group (Bendigo Health). She alleges that her employment was terminated harshly, unjustly or unreasonably and seeks reinstatement.

[2] Mrs Daly was represented by Mr Peter Cahill, solicitor, and Bendigo Health was represented by Mr Nicholas Harrington of counsel.

[3] The application was made under s.170CE of the Workplace Relations Act 1996 (Cth) as it was prior to 27 March 2006 (the old Act). It is accepted by all that the application proceeds under the provisions of the old Act.

[4] Mrs Daly had been employed by Bendigo Health as a Registered Psychiatric Nurse for some 20 years. At the time of the termination of her employment she was employed as a Division 1 Psychiatric Nurse (Grade 2).

[5] Mrs Daly’s employment was terminated because of her alleged misconduct on the nightshift of 17/18 January 2005.

Background

[6] On the evening of 15 January 2005 a middle aged woman was admitted as an involuntarily patient to the Alexander Bayne Centre, a psychiatric services unit operated by Bendigo Health, where Mrs Daly was working. Mrs Daly was the nurse who admitted the patient, as the lady will be referred to in these reasons for decision.

[7] The patient remained at the Alexander Bayne Centre for some five days. During this time she was secluded for two periods, totalling approximately 51.5 hours. I will explain what I understand “seclusion” to mean later in these reasons. The patient has made serious allegations about the way she was treated during her stay at the Alexander Bayne Centre. Those allegations are the subject of an inquiry by the Office of the Health Services Commissioner and I will deal with them no further than I am required to for the purpose of this proceeding.

[8] The patient had been involved in a motor vehicle accident some three years prior to the incident at the Alexander Bayne Centre and had suffered a compound fracture of the left tibia, a fracture of the clavicle which was subsequently united and a torn left rotator cuff. She was also noted to have asthma and a history of unrelated surgery. Since the accident the patient had been diagnosed with post traumatic stress disorder and depression. 1

[9] At the time of her admission the patient was a community-managed client of the area mental health service at Bendigo Health. On 15 January 2005 the patient’s family contacted the Bendigo Regional Triage Service after discovering the patient crushing a large number of aspirin or panadol tablets. Given the apparent seriousness of the situation the police were contacted and the patient was sent to Maryborough Hospital, from where she was sent to the Alexander Bayne Centre.

[10] Both the patient and her husband had thought that she was being admitted to the Alexander Bayne Centre as a voluntary patient. Apparently this was not the case. She had in fact been “recommended” by the attending doctor at the Maryborough Hospital under s.9 of the Mental Health Act 1986 (Vic) for involuntary treatment and was not permitted to leave.

[11] Section 9 of the Mental Health Act 1986 (Vic) prescribes the requirements to initiate the involuntary treatment of a person. A request and recommendation under s.9 has effect for 72 hours following the examination of the person by the registered medical practitioner who made the recommendation.

Seclusion

[12] Section 82 of the Mental Health Act 1986 (Vic) defines seclusion as:

“the sole confinement of a person at any hour of the day or night in a room of which the doors and windows are locked from the outside.”

[13] To assist my understanding, a view of the Alexander Bayne Centre took place on 31 May 2006. The centre is a 24 bed facility, including a High Needs Area as well as a Seclusion Unit. The High Needs Area can accommodate up to four patients. It is immediately adjacent to the nurses’ station. The Seclusion Unit comprises a self-contained unit which can be accessed from two doors. One door opens off a corridor and the other is near the nurses’ station. Within the Seclusion Unit there is a small foyer from which one can access two seclusion rooms and a bathroom. Each seclusion room contains only a mattress which lies directly upon the floor. The door to each seclusion room has two diagonal glass inserts. There is also a small double glazed window within which is contained a Venetian blind, the louvres of which can be moved with a knob on the outside of the window. Thus there is ready observation of any occupant of a seclusion room. The bathroom contains a basin and tap, a shower and a seatless toilet. Each seclusion room can be locked only from the outside, as can the doors to the seclusion unit. When the bathroom door is closed, there can be no external observation of what might be taking place in the bathroom.

The Night Shift Of 17/18 January 2005

[14] Mrs Daly’s shift for the period in question commenced at 10pm on Sunday 17 January 2005, after a handover at 9.30pm, and finished at approximately 7.30am on Monday 18 January 2005. Mrs Daly was one of four nurses working the night shift. The others were:

• David Chisholm (Div 1) Grade 2 (15 years total experience, with 3 years experience in Australia);



• Melanie Ferguson (Div 1) (2 years out of degree); and



• Noel Pianto (Div 2) (5 years experience).

Mrs Daly had the longest experience with some 20 years’ service. Mr Chisholm was also an experienced nurse with some 15 years’ service, mainly in New Zealand. He is a registered nurse, but with no formal qualification in psychiatric nursing. The other nurses were registered nurses, but did not have psychiatric nursing endorsement. 2

[15] Mr Chisholm had worked the pervious afternoon shift and had been asked by the “in charge” nurse on that shift, nurse Ross, to fill in on the night shift for somebody who had called in sick.

In Charge

[16] Mrs Daly asserted that nurse Ross had asked Mr Chisholm to be “in-charge” for the night shift and that he had agreed. A diary is used by staff members at the Alexander Bayne Centre to record their attendance for a particular shift. The diary usually displays the letters “IC” against the name of the nurse who is in charge of a particular shift. There was no such annotation against Mr Chisholm’s name for the shift in question, nor, apparently was he paid an “in-charge” rate for that shift, as is usually the case. 3 The respondent denied that Mr Chisholm was in charge, but failed to call any of the three people who might have given direct evidence as to the matter, namely nurses Ross, Ferguson or Pianto.

The Incident

[17] The patient complains of having been seriously mistreated in several ways and on several occasions during her stay at the Alexander Bayne Centre, and in particular, on the night shift of 17/18 January 2005. The allegations against Mrs Daly, contained in the respondent’s letter of 11 October 2005 summarily terminating her employment state: 4

“1. You denied [the patient]’s request to use the toilet and you did not provide her with any form of alternative toileting arrangement.

2. You deliberately hurt [the patient] by leaning on her left knee and stating “it was the other leg last night” and made an inappropriate comment “I’m glad you’re not my mother”

3. When [the patient] asked to use the toilet, you told her to “piss on the floor” because you considered her as “dangerous”, that the unit was short-staffed and that [the patient] was on “suicide watch”

4. The Chief Psychiatrist’s guidelines on seclusion practices were not complied with.”

[18] Ms Battin, the Executive Director of Human Resources for the respondent, was one of the two people who decided to terminate Mrs Daly’s employment. She said that despite what was contained in the letter of termination Mrs Daly’s employment had been terminated primarily because she had denied the patient toileting facilities on the shift in question, leading her to urinate on the floor of the seclusion room up to four times during that shift. 5 She was not cross-examined as to this.

[19] In his written submissions in reply, Mr Harrington, recited various “facts” that he contended had been admitted or conceded during the course of the hearing. I set them out:

(a) Mrs Daly was rostered to work, and did work, on 17/18 January 2005;

(b) Mrs Daly was the most senior nurse on shift over night on 17/18 January 2005;

(c) The patient was in the care of the respondent and secluded during nightshift on 17/18 January 2005;

(d) Mrs Daly, as an experienced psychiatric nurse, was personally responsible for her interactions with a patient under her care, namely the patient;

(e) Mrs Daly had more involvement with the patient during the nightshift than any other of the other 3 nurses on shift that night;

(f) Mrs Daly observed the patient on 20 of 38 occasions between 10pm and 7.15am;

(g) A security guard was present at the seclusion area between at least 10pm and 12am;

(h) Mrs Daly broke seclusion at 5.15am to provide the patient with water;

(i) Mrs Daly would not break seclusion at the same time so as to provide the patient with toileting facilities;

(j) Mrs Daly did not offer the patient a plastic or steel bed pan during the night;

(k) Mrs Daly did not break the seclusion, of the seclusion room, while maintaining the seclusion of the seclusion area, in order to facilitate toilet usage;

(l) The patient was asleep and resting at various times during the shift. However, at all times, the patient was rated as high risk;

(m) Mrs Daly admits the patient was banging on the walls and demanding she be allowed to go to the toilet;

(n) Mrs Daly admits it was likely the patient had urinated in the seclusion room on up to 4 occasions;

(o) Mr Chisholm did very little work during the nightshift;

(p) Mrs Daly authored the clinical notes at the end of the shift. She did so from her own knowledge and the information from other nurses;

(q) There is no clinical note/record of a towel being provided to the patient to use for toileting purposes;

(r) Mrs Daly admits she denied the patient toileting during nightshift; and

(s) Mrs Daly, in the company of Mr Chisholm, told the patient she would not be provided with toileting.

[20] It seems to me that all of the matters referred to by Mr Harrington are made out. Some of them require elaboration.

[21] Mrs Daly was the most senior nurse on the shift in terms of years of service. Mr Chisholm had had some 15 years’ experience as a registered nurse. Melanie Ferguson had two years’ experience and Noel Pianto had five years’ experience. Mrs Daly was the only registered nurse with psychiatric endorsement.

[22] In addition to Mrs Daly being personally responsible for her interactions with the patients under her care she, as part of her responsibilities, was required to advocate for the patients’ rights. Mrs Daly demonstrated a clear understanding of this responsibility in cross examination by Mr Harrington:

“PN252 As part of night shift at Bendigo Health Care Group there was no individual patient allocation was there?---There never is.

PN253 That's right. You, as a psychiatric nurse working on a night shift, are responsible for each and every interaction that you have with a patient, is that right?---Yes, the four of us did.

PN254 I'm asking about you personally and your interactions with patients. You were individually responsible for your interaction with patients weren't you?---Yes, I was.

PN255 Part of the job of a psychiatric nurse is to advocate for patients rights isn't it? ---That's exactly right.”

[23] The observation log discloses that the patient had been assessed as being of high risk for the duration of her seclusion. Mrs Daly said that unless a patient had been asleep for over an hour she would not reduce the risk assessment from high. This evidence was partly challenged by Mr Victor Tripp, the acting operations manager for the respondent. Mr Tripp had been a psychiatric nurse for 14 years. In his view, having seen the observation log, he would have thought that at 10.45pm, when the patient was observed as “resting in bed, quiet” the assessment should have been of “moderate risk”, and then at 11.15pm as the patient fell asleep the risk assessment should have gone from moderate to low or absent. 6 He did qualify his evidence by admitting that he had not personally observed the patient on the night in question.

[24] Mrs Daly asserted that Mr Chisholm did very little work during the night shift. The evidence is to some extent supported by the observation log and clinical notes. Given that Mr Chisholm had also worked the previous shift it is perhaps understandable that he was less active than Mrs Daly. However, Mrs Daly’s evidence supports the inference that she had been more involved with the patient than Mr Chisholm.

[25] Mrs Daly had said that a towel had been placed into the seclusion room for the patient to urinate upon. 7 There is no reference in the clinical notes to such an occurrence having taken place. In any event, in my view, in the circumstances, that would not constitute providing adequate care for the patient.

[26] Mr Harrington submitted that on these facts alone I should find that there was a valid reason for the termination of Mrs Daly’s employment and that the termination was not harsh, unjust or unreasonable.

[27] For Mrs Daly it was put that, although she accepted that she had been one of four nurses involved in denying the patient toilet facilities during the night shift in question, that did not warrant the summary termination of her employment and, having regard to all the circumstances, the termination of her employment was harsh, unjust or unreasonable. Mr Cahill did not go so far as to suggest that the patient had been properly cared for during the shift. He submitted that Mrs Daly was only one of four nurses on duty that night, and that, although Mr Chisholm was in charge, all shared responsibility for what occurred on the shift.

[28] Mr Cahill pointed out that the respondent’s Occupational Health and Safety guidelines recognise that five people are necessary to take a violent or aggressive patient out of seclusion, even for the purpose of taking her to the bathroom some few metres from the seclusion room. As there were only four nurses on duty, as is generally the case on night shift at the Alexander Bayne Centre, Mrs Daly believed that it was not possible to break the patient’s seclusion to take her to the toilet. Although she accepted that the door to the seclusion room was opened in order to slip in a container of water at 5.15am on 18 January 2005, she asserted that that is quite a different matter to actually taking the patient out of the room.

[29] It was put to Mrs Daly that she could have obtained assistance from the general hospital which is only some 500 metres from the Alexander Bayne Centre. To this Mrs Daly replied that that could not be done because there were no suitably trained staff at the general hospital. She noted the inability of the night nurse manager to assist in a restraint procedure as he had not completed an aggression management course. 8 Mrs Daly further said that the night porter and security staff at the general hospital would also have been unable to render assistance as “they knock off too early”.9 Apparently no phone call had been made to find out if any assistance was available.

[30] It was suggested to Mrs Daly that she could have called the police to assist in taking the patient to the toilet, but Mrs Daly said that it was inappropriate to call the police because “they're short staffed on night shift, and to call someone in to - if I rang up and said can some police come up to assist us to take a client to the toilet, I don't think it would be their top priority”. 10 She went on to explain that the police were only called for the four hourly checks. When it was put to Mrs Daly that she didn’t try to call the police to ascertain whether they were available she responded by saying “that wasn’t my decision to make”11 and that she “was aware that they were an option, but that it wasn’t my responsibility to ring them.”12 When it was put to her that there was nothing stopping her from calling the police she responded by saying “that would have been up to David Chisholm”.13

[31] I asked whether it would have been possible for the patient’s seclusion room door to have been opened and the other doors to the seclusion area locked thus permitting access to the lavatory. Mrs Daly thought that inappropriate because while the risk of self harm was low, the risk of harm to others was extremely high. 14 She placed emphasis on the fact that the psychiatrist on call had made a clinical decision to waive the patient’s four hourly checks15 in support of her assessment as to risk.

[32] Mrs Daly also rejected the suggestion that the patient could have been provided with a bed pan. On the view, I saw two types of plastic bed pans that had apparently been available on the night in question. Initially, Mrs Daly said that the provision of such bed pans was inappropriate because they could be broken up by the patient and the sharp plastic shards used as weapons 16. When I suggested, after seeing the bed pans, that I thought it highly unlikely that they could be broken up and used as described, Mrs Daly said that nevertheless they could be used, intact, to inflict a blow.17 She further said that she had been instructed by “management” not to provide the plastic bed pan.18

[33] Mrs Daly said that the respondent should have provided disposable papier-mâché toilet pans, but that it had refused to do so because of the cost. 19 I note that they are now being provided.

[34] Mrs Daly alleged that the design of the Alexander Bayne Centre was deficient. She compared it with Vahland House, where apparently there are toilet facilities within each seclusion room. 20

[35] The events of 16 January 2005 were described by Mr Greg Nicholls, the Executive Director of Psychiatric Services for the respondent, when he wrote to the patient’s husband, as follows: 21

“On Saturday 15^th January 2005,[ the patient] was recommended under section 9 of the Mental Health Act 1986 by a doctor at the Maryborough Hospital and subsequently transferred by ambulance to the Alexander Bayne Centre where she was admitted as an involuntary patient. She was seen by the on call psychiatrist Dr Ryan on the morning of Sunday 16^th January 2005 where she was discharged from Section 9 of the Mental Health Act 1986, and admitted as a voluntary patient after she agreed to stay and receive treatment. During the day she became increasing isolated, depressed and anxious. She was seen by the duty doctor, Dr Rumbergs who noted that if [the patient] attempted to leave the unit she was to be recommended. During the evening she became demanding, verbally abusive and began kicking at the door and attempted to leave the unit. [The patient] settled with staff intervention and reassurance; she requested and was given medication by injection due to her anxiety. Later in the evening she again became demanding, refusing further medication, throwing it across the room lashing out at nursing staff at the same time. She was in a highly agitated state requiring her to be restrained by 3 nursing staff. She was then escorted to the seclusion area, the duty doctor was notified and [the patient] was recommended under Section 9 of the Mental Health Act 1986, and was placed in seclusion. Dr Ryan, the on-call psychiatrist was also notified of this.”

[36] The patient’s first period in seclusion commenced at approximately 11.30pm on Sunday 16 January 2005 and lasted for some 13 hours. The patient was taken out of seclusion at approximately 12.30pm on Monday 17 January 2005 and transferred to the High Needs Area. At approximately 10pm on Monday 17 January 2005, some 30 minutes after Mrs Daly had arrived for work and had attended the handover for her night shift, the patient again became aggressive and violent, this led to her second period of seclusion, which lasted until approximately 12.30pm on 19 January 2005. Whilst she was being restrained so that she could be placed into seclusion the patient became violent and grabbed Mrs Daly on the breast, causing significant bruising. She also injured another male nurse, Mr Pianto, scratching both his lower arms. 22 It is what occurred whilst Mrs Daly was on duty during this second period of seclusion that is the focus of this case.

[37] The door to the seclusion room was opened at 5.15am on 18 January 2005 when the water was placed into the seclusion room. It must also have been opened if and when a towel had been placed into the seclusion room.

The Complaint

[38] The patient’s husband wrote to the respondent on 19 January 2005, before the patient had been discharged, complaining about the treatment that had been afforded to his wife. The complaint makes serious allegations regarding the conduct of the respondent and its staff. That letter did not name or otherwise identify Mrs Daly as having acted inappropriately. It did not allege that that the patient had been denied toilet facilities.

[39] The patient’s husband again wrote on 24 January 2005 elaborating upon his allegations regarding the mistreatment of his wife. This letter, which was co-signed by the patient does refer to the refusal to allow his wife to use the toilet on the night in question. Again Mrs Daly is not identified.

[40] The complaints elicited responses from the respondent, largely to the effect that a check had disclosed that the patient had been treated appropriately in the circumstances and that there had been no breach of the Mental Health Act 1986 (Vic) or the respondent’s clinical policy and procedure.

[41] There followed an investigation by the Office of the Chief Psychiatrist, with a report issued on 2 September 2005. That report was critical of the manner in which the patient had been treated in several respects. Significantly for this case it found:

“ 6.9 The patient was not provided with adequate toilet arrangements by Nurse Trudy[sic] Daly, as required under section 82(3)(e)of the Act.

The patient was not provided with adequate toilet arrangements by Nurse Trudy[sic] Daly during the night of the 17 and 18 January 2005. The patient requested to use the toilet and this request was denied by Nurse Daly. No attempt appears to have been made to provide the patient with any form of alternative toilet arrangement nor does senior management appear to have been consulted to attempt to provide adequate toilet arrangements during this episode.”

[42] As I have previously stated, an investigation into the treatment of the patient during her stay at the Alexander Bayne Centre is currently the subject of an investigation by the Office of the Health Services Commissioner of Victoria. The wider manner of the treatment of the patient is beyond the purview of the matter before this Commission and I have been deliberately sketchy in describing what occurred. I have only said as much as I consider necessary to properly describe the background to the events which led to the summary dismissal of Mrs Daly.

[43] Mrs Daly, who at the time of the hearing was suffering from depression, went on sick leave two days after the incident involving the patient. She made a compensation claim, citing workplace induced depression as her ailment. She remained absent on WorkCover from 10 March 2005, during most of which time she received Workcover benefits, until 6 August 2005 when she returned to work. She remained at work for two days, and was then suspended on full pay whilst the respondent concluded an inquiry into her conduct on the night of 17/18 January 2005.

[44] On 11 August 2005 a meeting was held with Mrs Daly to discuss the patient’s allegations. The meeting was also attended by Mr Kirtley, project manager for human resources, Mr Pianto, one of the nurses on duty on the night in question, Mrs Davis, a psychiatrist and Mr Robertson the operations manager for Bendigo Health. Mrs Daly denied that she had treated the patient improperly and asked for a payout from Bendigo Health. 23 At the conclusion of the meeting Mrs Daly was informed that she would remain stood down with pay while a review of the allegations was completed. On 12 August 2005, Glenis Beaumount, the then executive director for human resources, confirmed in writing that Mrs Daly was to remain stood down with pay pending further investigation.

[45] After the Chief Psychiatrist’s Report of 2 September 2005, on 20 September 2005 Ms Battin wrote to Mrs Daly confirming that her status remained as “stood down” on full pay while Bendigo Health completed its investigation. 24 On 23 September 2005 Mrs Daly telephoned Ms Battin requesting a copy of the complaint which specifically named her. During this phone conversation Mrs Daly made a general threat to sue Bendigo Health on the grounds of discrimination.

[46] On 5 October 2005 Ms Battin and Mr Nicholls held a meeting with Mrs Daly to discuss the allegations and the implications of the Chief Psychiatrist’s report as they related to her. Mrs Daly attended with her solicitor and a union representative. She was advised that Bendigo Health believed that her conduct towards the patient constituted serious misconduct and that her job was in jeopardy. Mrs Daly was invited to respond to the allegations. Mrs Daly denied the allegations put to her, and reiterated her denial that she had been the nurse in charge. Mrs Daly requested a copy of the Chief Psychiatrist’s report and the written complaint against her. She was not provided with them. Instead she was provided with a copy of the extract from the report in which her name was cited. At the end of the meeting Mrs Daly asserted that Bendigo Health had caused her stress and mental illness and she again sought a pay-out. Ms Battin suggested that they meet again the next day.

[47] On the morning of 6 October 2005 Mrs Daly called to say that she would not be attending the scheduled meeting. On the same day her solicitor, Mr Cahill, wrote to Bendigo Health complaining about the process which it had adopted. The letter also confirmed his understanding that Mrs Daly was required by Bendigo Health to make an application under the Freedom of Information Act 1982 (Vic) if she wished to obtain copies of the Chief Psychiatrist’s Report and the patient’s complaint. Bendigo Health wrote to Mrs Daly and Mr Cahill indicating it was prepared to allow Mrs Daly until 10 October 2005 to respond in writing to the allegations outlined to her at the meeting on 5 October 2005. Having received no response from Mrs Daly or her solicitor, Ms Battin wrote to Mrs Daly on 11 October 2005 terminating her employment.

The Patient’s Statement

[48] The respondent sought to tender a statement made by the patient for the purpose of this case. The statement attaches copies of the complaints made by her and her husband. In addition to her husband’s letters it attaches handwritten notes and drawings made by the patient, which contain the serious allegations to which I have referred. The patient’s notes make allegations about the treatment that was allegedly meted out by Mrs Daly, including the refusal by Mrs Daly of toileting facilities for the patient.

[49] The respondent tendered a letter from the patient’s general practitioner to the effect that the patient is still in a fragile mental state and would be unlikely to withstand a vigorous cross-examination. When the patient was called to give evidence she did not appear. The respondent, which had earlier sought the issue of a summons to compel the attendance of the patient, did not seek to pursue that course having regard to the patient’s condition. I had earlier refused an ex parte application to issue the summons, indicating that I would deal with any further application at the hearing.

[50] Over objection, I admitted the patient’s statement as to the fact that she had made a complaint in the terms of the various documents attached to her witness statement. I also provisionally admitted it as to the truth of the facts alleged in those documents, and indicated that I would finally rule as to whether to admit it absolutely when I delivered these reasons for decision. I will return to this issue.

The Submissions

[51] For Mrs Daly it was put that she had been made a scapegoat consequent upon the report of the Chief Psychiatrist. It was submitted that the Chief Psychiatrist was wrong in singling her out as being the nurse who had denied the patient toileting facilities. Mr Cahill submitted that the Chief Psychiatrist had erred in not talking to the patient, instead relying on her, and her husband’s, written complaints. He submitted that the respondent had erred in finding that Mrs Daly was the nurse in charge on the night of 17/18 January 2005. He further submitted, that Mrs Daly was denied procedural fairness because she was provided with no details of the allegations against her beyond those in paragraph 6.9 of the Chief Psychiatrist’s report. This despite her, through Mr Cahill, informing the respondent that, until she was provided with more detail of the complaint against her, she would not be able to respond beyond merely denying the allegations. Mr Cahill submitted that the respondent had acted unfairly in passively accepting the Chief Psychiatrist’s findings without having itself questioned the patient and having conducted an independent investigation into her allegations. He was highly critical of the disparity between the punishment meted out to Mrs Daly compared with what happened to the other nurses on the same shift.

[52] Mr Cahill was critical of the failure of the respondent to call Mr Nicholls, the author of the letters from the respondent to the patient seeking to vindicate the actions of the respondent. He was also one of the two people who decided to terminate Mrs Daly’s employment.

[53] Mr Cahill pointed to the approach taken by the respondent when it initially responded to the patient’s husband, to the effect that on the night in question the staff had acted properly, within the respondent’s and the Chief Psychiatrist’s guidelines and in conformity with the requirements of the Mental Health Act 1986 (Vic).

[54] He contrasted this with the respondent’s approach to Mrs Daly after the Chief Psychiatrist’s report. The respondent, Mr Cahill, submitted, had backtracked and admitted that there had been breaches of the Mental Health Act 1986 (Vic) and the Alexander Bayne Centre’s procedures and sheeted those home to Mrs Daly. In its letter of termination the Respondent stated:

“The Chief Psychiatrist’s report specifically identifies the first allegation as a clear breach of section 82(3)(e) of the Mental Health Act and during our meeting you were handed an extract from the report which clearly states this.
…
In all the circumstances, BHCG has formed the view that the allegations against you are substantiated and that your actions on 17 and 18 January 2005 amounted to serious and wilful misconduct. Accordingly BHCG has no option but to terminate your employment with immediate effect.” 25

[55] Although, there is considerable force in Mr Cahill’s submissions, on the uncontested facts, as well as the admissions made by Mrs Daly at the hearing, I am satisfied that the respondent had a valid reason to terminate her employment. There is no doubt that during a period of at least nine hours, from 10pm on 17 January 2005 to 7am on 18 January 2005, the period that Mrs Daly was on duty, the patient was denied the ability to toilet in a dignified and humane manner. She was forced to urinate on the floor of the seclusion room up to four times. Mrs Daly, whether she was solely or jointly culpable, had behaved in a manner that, in my view, warranted the summary termination of her employment.

[56] During the course of her evidence Mrs Daly sought to blame everybody but herself for the degrading manner in which the patient had been treated. She complained of the inadequacies of the facilities at the Alexander Bayne Centre. She complained that the shift was under-staffed, because the night shift only had four nurses, whereas five people are required to break seclusion. She claimed that Mr Chisholm was in charge and used that excuse to justify her not having called for assistance. She asserted that there were no suitably trained persons available at the general hospital to assist. I note that there was no suggestion that she even sought assistance. She blamed the respondent for not having provided papier-mâché bed pans. She asserted that she had been told by management not to provide plastic bed pans to the patient. 26 She asserted that because Mr Chisholm was the nurse “in-charge” he should have been the one to have sought assistance to have the patient taken to the lavatory, or that it was Mr Chisholm who should have taken the decision to provide plastic bed pans, or to call the police.

[57] The demeanour of Mrs Daly in the witness box was that of an aggressive, defiant person who was not in the slightest prepared to take responsibility for her actions. She displayed absolutely no remorse for what had occurred nor any compassion or sympathy or concern for the plight of the patient. Even her admission that it was disgusting that the patient had had to urinate on the floor was more intended as a swipe at the respondent than any sort of concession that she could or ought to have behaved differently. 27 To what extent the demeanour of Mrs Daly was the product of her current condition was not the subject of any evidence and I would not presume to speculate.

[58] Mr Cahill strongly submitted that the differential treatment as between Mrs Daly and the others on shift rendered Mrs Daly’s treatment unjust, at the very least.

[59] At first blush there appears to be force in Mr Cahill’s submission. In the absence of nurses Ross and Chisholm, whose failure to be called was not explained, I am not prepared to find that Mrs Daly was “in charge” by virtue of her being the most experienced nurse on shift. I draw the inference, based on the failure of the respondent to call them, that their evidence would not have assisted the respondent on the question of who was in charge on the night in question 28. However, I am not prepared to accept Mrs Daly’s evidence that nurse Ross had designated nurse Chisholm as being in charge. Mrs Daly is a witness of very little credibility. Further the lack of the designation “IC” against Mr Chisholm’s name on the roster together with his not having received the allowance usually paid to the in-charge nurse, suggests to me that it is likely that nobody had formally been designated as being in-charge for the night shift of 17/18 January 2005. This conclusion is not a finding that Mrs Daly was defacto in charge by virtue of her seniority.

[60] However, the fact remains that Mrs Daly was a nurse of some 20 years standing who had a significant interaction with the patient on the night in question. The observation log discloses that for the period of 10pm to 7.30am Mrs Daly conducted 20 of the 38 quarter hourly observations. She was also the author of the clinical notes for the period 11pm on 17 January 2005 to 6am on 18 January 2005. She admitted being aware that the patient had urinated on the floor up to four times. 29

[61] In my view Mrs Daly’s conduct constituted serious dereliction of duty such that a finding of misconduct was justified. I am so satisfied on the Briginshaw 30 standard of proof. I make no comment as to whether she breached any of the provisions of the Mental Health Act 1986 (Vic) as that may well be one of the matters for the inquiry by the Office of the Health Services Commissioner of Victoria. However, Mrs Daly’s conduct was, in my view, an unjustified breach of her duty of care to the patient, as well as a breach of the respondent’s Clinical Policy & Procedure Manual guidelines31 which relevantly state:

“ Once a consumer is placed in seclusion, section 82(3) (A) (B) (C) (D) and (E) of the Mental Health Act stipulates the clinical team have the legal obligation to ensure that a person kept in seclusion must;
…
• Be provided with adequate toilet arrangements.”

[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton 32 that “there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.

[63] Whilst I have been critical of the respondent’s procedure leading to the termination of Mrs Daly’s employment I am of the view that even had it acted impeccably the result would have been the same. It should have spoken with the patient, it should have provided Mrs Daly with all the information upon which it relied in proposing to terminate her employment, it should not have accepted the finding of the Chief Psychiatrist without fully investigating the matter for itself, especially in circumstances where the Chief Psychiatrist reached his conclusion having regard to the written complaints of the patient and her husband without interviewing them.

[64] However the facts as I have found them, and upon which I am obliged to draw my conclusion, 33 compel the conclusion that the summary termination of Mrs Daly’s employment was for a valid reason and was not harsh, unjust or unreasonable.

[65] In coming to the conclusion that the termination was not harsh unjust or unreasonable I have also had regard to the fact that she had been employed by the respondent for some 20 years. Further, given that the respondent is the only provider of public psychiatric services in the Bendigo region Mrs Daly’s prospects of securing further employment in her chosen field are negligible. However, given the seriousness of Mrs Daly’s conduct, the fundamental dereliction of her duty of care towards the patient coupled with the attitude she displayed towards that conduct in the witness box, I have formed the firm view that, even taking those matters into account, the respondent was warranted in summarily terminating Mrs Daly’s employment.

[66] Given my conclusion it is not necessary that I rule on the admissibility of the patient’s statement as to the truth of what is alleged in her letters. I have reached my conclusion without having had regard to that statement.

[67] In summary, with particular reference to the matters set out in s.170CG(3) of the old Act,

(a) There was a valid reason for the termination of Mrs Daly’s employment having regard to her conduct towards the patient;

(b) Mrs Daly was notified of the reason, although not with the particularity that she sought;

(c) Mrs Daly was given an opportunity to respond, but beyond denying the allegation she was unable to more fully respond because she was not provided with details of the allegation;

(d) Section 170CG(3)(d) does not apply in the circumstances;

(e) The respondent is a large employer and has a human resources department;

(f) The other matters which I consider relevant and to which I have had regard are Mrs Daly’s age, the likelihood that she will not be able to find work in her chosen field in the Bendigo area if she is not reinstated and the fact that the other nurses on the shift in question did not have their employment terminated.

[68] Accordingly, Mrs Daly’s application for relief is dismissed.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code F>

 1   Exhibit R3, attachment VT-16 at [6.1]

 2   Exhibit R3 at page 7

 3   Exhibit R3, attachment VT-1

 4   Exhibit R4, attachment VB-11

 5   PN2195-PN2200

 6   PN1686-PN1690

 7   PN916-PN917

 8   PN986

 9   PN991

 10   PN996

 11   PN997

 12   PN1002

 13   PN1004

 14   PN558

 15   PN519

 16   PN598

 17   PN1242

 18   PN1261-PN1262

 19   PN596

 20   PN187

 21   Exhibit R4, attachment VT-8

 22   Exhibit A2

 23   Exhibit R5, attachment CK-1

 24   Exhibit R4, attachment VB-1

 25   Exhibit R4, attachment VB-11

 26   PN1261-PN1262

 27   PN906

 28   Jones v Dunkell (1959) 101 CLR 298

 29   PN596

 30   Briginshaw v Briginshaw (1938) 60 CLR 336

 31   Exhibit R3, attachment VT-3 at page 3

 32   Sexton v Pacific National (ACT) Pty Ltd (Lawler VP, PR931440, 14 May 2003) at [36]

 33   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685