Antonakopoulos v State Bank [2005] NSWIRComm 1107 | Case summary

The Evidence 26 It was Mr Frias' evidence that on Monday 14 June he was sent to Unit 8 to do an afternoon shift (3 pm to 11 pm). It was the first time in approximately 4 months that he had worked at Unit 8. As he walked into the Unit he was spoken to by domestic who told him to watch out for "J" as he had been showing challenging behaviour throughout the day, particularly in the morning. There was nothing in the shift changeover checklist about "J". 27 He proceeded to "J's" group in the small room where the TV is located. Also in the room was another resident "S". When Mr Frias walked in he saw "J" vigorously playing with the buttons on the TV and because he was afraid that the TV might fall and injure "J" he sought to have "J" stop the behaviour and sit on his favourite chair. Whilst he obeyed the instruction to sit he then became frustrated because he couldn't play the TV. He then grabbed "S" and tried to dig his fingernails into "S's" neck. Mr Frias responded by grabbing "J's" wrist and also the other hand to separate the two residents. 28 There was another permanent AIN present in the room, Vincent Aquino. As Mr Frias was trying to separate the two residents "J" was becoming violent, and grabbed his wrist and dug his fingernails into his skin. Mr Frias did not feel that the skin was broken but did feel the pain. He sought assistance from Mr Aquino to take "J" into the courtyard away from the other residents. 29 They walked "J" into the courtyard holding one arm each. When they were out in the courtyard "J" started to scream and shout, biting his hand, which Mr Frias said was a sign he was frustrated. He then tried to reach out and grab the two AINs but they knocked away his arms. 30 Mr Frias said that when "J" knew he couldn't get at them he then pulled down his short pants and reached in and manually excavated his faeces which he started to smear on the walls. 31 Mr Aquino suggested that they take "J" inside the Unit to prevent other residents seeing what was happening. While they were both trying to take hold of "J", "J" scratched Mr Aquino. They took "J" inside the Unit to an area where no other residents were present in the hallway close to the bathroom. Whilst they were inside the Unit "J" was carrying on the same behaviour, screaming and smearing and trying to reach for Mr Frias and Mr Aquino to injure them. 32 Mr Frias' then decided to give "J" a shower. He told Mr Aquino who said he would go to the other side of the Unit to fetch "J's" clothes and towel. He then left. 33 Whilst was Mr Frias was alone with "J" he reached for him again and Mr Frias knocked his arms out of his way to avoid getting hurt. 34 Mr Frias was concerned that he didn't want to get scratched with contaminated hands like Mr Aquino. He was concerned about the type of disease he could acquire if he got scratched and he was also unaware of what diagnosis "J" had. He was also concerned as he was going to be a parent soon. 35 Mr Frias decided to restrain "J" as this would settle his behaviour and would prevent from causing harm to himself and the staff. He grabbed hold of "J's" shirt and pulled him down on the floor to a sitting position but he was still violent and trying to reach for him and grab his legs. He then put him over on his stomach. 36 Mr Frias did not use his duress alarm (which was in a pouch in his trousers pocket), as things were happening quickly and he didn't have time to think. He was too busy ducking "J's" hands because he was trying to grab him. He was just trying to settle him down and believed he could still calm him down and diffuse the situation. In any event once he had him on the ground his hands were not free as his arms were on "J's" shoulders. 37 Mr Frias was aware, from induction sessions, that it was mandatory to use the duress alarms in critical situations. 38 Mr Frias said that in the heat of the moment, his main aim was to put "J" on his stomach and hold his shoulders as he did not want to get touched with faeces on hands on his upper body as he would then be smeared with faeces throughout the shift. 39 He could not remember stomping or kicking "J" on his back. He could not remember what happened after he decided to put "J" on his stomach. He thought that he used his foot to turn "J" over on his stomach which would have been putting pressure on his back and that in turn "J" would have been resisting the force. Since he was heavy to turn over the amount of force to get him on the stomach would be great and he would have used his foot to secure "J" on the floor. 40 Mr Frias said as "J" was trying to resist the restraint and as he was still violent he then must have rested his foot on his back to help secure him down resulting in the pattern of the sole of his shoe being left on his back. His shoes were new at that time and the treads were at a point and there was a lot of pressure on those points. 41 Mr Frias said that he heard Mr Aquino arrive back and Mr Frias got "J" back on his feet, he pushed him into the bathroom which was 2 metres from where the restraint occurred, took off his clothes and showered him cautiously. Whilst he was showering him, he did not notice any markings on "J". He was still a bit resistant but Mr Frias, with the assistance of Mr Aquino, was successful in cleaning and calming "J" down. He was dressed and joined the other residents in the room where the TV is located. 42 Mr Frias had other interaction with "J" during the course of that shift, however he was pleasant to interact with. He did not notice any markings on his back and when Mr Aquino had changed "J" into his pyjamas at bedtime he did not tell him that there were any marks on "J's" back. 43 On the following Tuesday afternoon the 15 June (whilst working back at Unit 6) he was asked to go to the office where Manon Wong, the ADON, asked him about the incident concerning "J". He immediately told Mr Wong that he had restrained him the previous afternoon and told him the story, step by step, as he could recall. He was sent back to the Unit and told to come back later in the shift to speak to Karen Foster, the Director of Nursing. 44 Later in that shift he spoke to Karen Foster and again told her what had happened. The interview lasted less than 30 minutes. He told Ms Foster the truth and was told that the matter would be investigated. He was sent back to Unit 6 but after 30 minutes or so he was called back to the office and told he was to be sent home and would be contacted during the week concerning the decision. 45 On Friday 19 June he received a written notification of a meeting on the 21 June and was advised to take a witness. 46 During the interview Mr Frias told them that in his view the incident was a normal occurrence with "J" and that was the reason why he did not report the incident. Not all incidents were reported, particularly incidents that were not serious compared to what he had experienced with "J". He also indicated that not all staff in Unit 8 reported all incidents concerning "J" because it happened all the time, and everyday something happened concerning "J" harming other clients and staff. Staff were reluctant to complete incident reports. 47 He denied that he sought to cover up the incident as if he had, he would not have subsequently admitted to what had occurred during his shift. However, he was then terminated and handed an envelope which Ms Foster had been carrying before the interview had commenced. 48 He was also advised that the Nursing Registration Board and also his University would be advised as well as the Police. He was deeply concerned about his prospect of getting other employment and asked Ms Foster if he would have difficulty getting employment elsewhere. She told him he would not have difficulty getting employment but he couldn't work at Marsden Centre, Rydalmere Centre and Lachlan Centre but would not have any problems elsewhere depending on the police action. 49 He was subsequently interviewed by the police and was asked by them if he used too much force in handling "J". He told them he used the appropriate force because of the capabilities that "J" had to harm him and the strength and weight of "J". 50 A few weeks after the interview at the police station, he applied for a casual position at Grosvenor Centre, Summer Hill run by DADHC and was interviewed and asked why he left Marsden. He told them about the incident and was then refused employment because of the incident. 51 Mr Frias maintained that he was never given any formal or professional training in how to restrain residents with challenging behaviours. When he had initially commenced at Metro West Residences, he had spent the first months working with residents who were wheelchair bound or bed bound residents with extreme disability. Once he commenced working shifts at Unit 6, and as he worked at Unit 6 more and more, he learned to manage clients with challenging behaviour and developed his skills. It was basically a matter of common sense. 52 "J" and "S" both had challenging behaviours, though "S" was not as challenging as "J". Mr Frias said that "J" was tall, had long extremities, was heavy, his mood was unpredictable and he was very violent when he showed violent behaviour. He had learned how to deal with "J's" challenging behaviour by means of pulling him down to the floor and putting him on his stomach as he had often seen permanent staff do when he played up. 53 He had first seen "J" being restrained on his first day at Unit 8 and was told that he should be careful with "J" because he had caused numerous staff injuries. The process of managing "J" that he saw was that he was pulled down to the ground in the courtyard and restrained. The result of the restraint was very positive and he stopped the violent behaviour. 54 Mr Frias understood that restraint of a resident was the last choice and was only used when there was a risk of other residents in the Unit being harmed or if there was any risk to himself or staff. It was performed when a resident continuously did not follow verbal instructions to stop the behaviour. 55 Mr Frias also maintained that he had been told by numerous staff that their NUMs were requesting that he work in the Units because he was providing excellent resident care and was also able to help out in resident behaviour management. 56 The ADON who managed casual staff, believed that he could handle residents with challenging behaviour so they sent him to Unit 6 which houses such residents. He had been placed there first in November 2002 and since then had spent 95% of his work in that Unit. 57 Mr Frias also believed there was inadequate staffing in Unit 8 on the 14 June having regard to the demands of patients and number of and level of experience of staff. 58 To the best of his recollection there were four staff working that day (including an RN and another AIN) and 14-16 residents. 59 Mr Frias was aware of the requirement to report injuries to residents, himself as a staff member and also any incidents of restraint. 60 Mr Frias was not aware of any marks to "J's" back on the 14 June and therefore there was nothing that he was aware of which would necessitate a report of patient injury. He was not aware of the injury until the disciplinary process had commenced. 61 He considered the scratch on his arm to be so insignificant as to not warrant any formal report. The non reporting of trivial scratches by staff in Unit 8 was the accepted practice at the time. He was always getting scratches when he went to Unit 8. 62 In addition staff did not like excessive paperwork and he felt filing reports in such a matter, as a casual, would have "ruffled feathers" and created a negative response from his supervisors. He also wanted to fit in with his peers and get along with the staff mentality and be part of the staff. 63 He was aware that if a resident had to be restrained a report had to be completed, but in such a case about 4 forms had to be filled out and staff weren't very enthusiastic about filling out such forms. However, no-one had ever said not to fill in reports and senior staff had not said anything to discourage filling out reports. 64 He understood that reports had to be filed within 24 hours of an incident. After the injury to "J" was drawn to his attention on the 15th (still within the 24 hours he maintained) he attempted to complete a form but was told the Unit (Unit 6) had run out of forms. 65 Later Karen Foster told him to go back to Unit 8 to fill in the forms which he did. However, Unit 8 did not have the particular and most important form he was looking for which had serial numbers so he went back to Unit 6 to get one of their forms but they refused to give him one as the bundles with serial numbers related to that Unit only. 66 Mr Frias had never seen the memo from Mr Werner that said "J" was only to be showered by 2 people. There were numerous notices on the noticeboard and he didn't get to that one. No-one drew it to his attention. 67 If he had been aware of the memo he would have not let Mr Aquino leave the room. However, Mr Aquino was the permanent person there and knew "J" better than he did. Mr Frias thought he could control "J" at the time. He also couldn't tell Mr Aquino what to do. 68 Mr Frias had never seen a copy of "J" Behaviour Intervention Plan (BISP) or indeed any resident's behaviour plan. It was kept with resident's notes, and he believed you needed a key to access those. Only the RN had access. No-one had told him what was in "J's" plan concerning managing his challenging behaviour. However, he was aware that such intervention plans were used to lessen the challenging behaviour of a resident and that they were important. He was also aware that Behaviour Intervention Plans could change over time. 69 Mr Frias was also aware of the various compulsory reading folders on the table in the kitchen. He had never been told about them. Although there was the time to read them he considered reading them was heavily emphasised to permanent and part-time employees. He did not know what sort of information was in such folders. 70 Mr Frias said he had never had any formal induction training about managing challenging behaviour. Whilst his name appeared on a list of staff signed off as having received induction training on 23 July 2002 (Ex. 5), Mr Frias pointed out that his name was printed, not signed by him, and was spelt incorrectly. He had never attended such training. 71 The induction training he received was mainly directed at the physical layout of the Unit, safety, emergency and OH & S issues. They walked around the Unit and it took about 5 to 10 minutes. 72 Mr Frias said that in relation to the restraint of "J" that he acted in self-defence. He was aware that "J" was a vulnerable resident in his care and that it was incumbent on him to look out for his wellbeing and safety. 73 Roman Hoferek is also employed as a casual Assistant in Nursing at Metro Residences and had looked after "J" in Unit 8 many times. 74 Over the previous twelve months he had pretty much worked 9 shifts per fortnight on a consistent basis. 75 He was not aware of what staffing/resident numbers were present on the 14 June as he was not on duty. 76 Mr Hoferek described "J" as a strong man with long limbs "aware of his power and his body". He had strong hands and a good grip when grabbing someone's hands or hair. When in a tantrum he scratched, grabbed anywhere he could reach including female staff's breasts. He is capable of chasing staff screaming, jumping and pushing. He also bites staff, other residents and himself. He was "dangerous" with a potential of harming himself and others." 77 Mr Hoferek indicated that "J's" most "dangerous and cunning" behaviour was to get faeces from his nappy and throw it at staff with dirty fingers. 78 Mr Hoferek indicated a range of situations which would trigger "J's" aggressive and violent behaviour such as being denied what he wanted or when he was frustrated. He was the most difficult resident in Unit 8 and required the most staff attention. 79 In Mr Hoferek's experience the safest way to deal with his violent tantrums was to restrain him; usually on the floor. This would always be done with another staff member because of his size and physical strength. He had never restrained "J" on his own. 80 Mr Hoferek had been involved in two incidents of restraint with "J". The action involved each staff member taking hold of an arm and swinging him around to unbalance him to slowly bring him down to the floor. They would swing him around and pull and move down with force, coming out of the circle, causing you to go lower and lower. 81 Mr Hoferek described such a particular incident and "J" had been on the ground for 20 minutes. One staff member had to hold his legs and Mr Hoferek held his arms as even when he was placed on the ground he continued to try to bite and scratch. 82 Mr Hoferek did not consider that "J" had an unsteady gait. He could run and therefore Mr Hoferek considered he could maintain his balance. 83 In situations with "J" Mr Hoferek felt threatened by him and when he was involved in the incidents of restrain concerning "J" he did feel "J" was trying to harm him. However, on neither of those occasions had "J" suffered any injury. 84 He considered that Mr Frias had done what he needed to do in the situation, defending himself from potential danger from "J" and he was acting in self defence and preventing injury to other residents and "J". 85 Mr Hoferek had worked with Mr Frias and considered that he had good judgement around residents with challenging behaviour and was capable of working with such residents. He considered him a colleague rather than a friend. 86 Mr Hoferek acknowledged that he had filled out reports on both staff and resident injuries. He was aware that the reporting of such injuries was mandatory and not at a staff member's discretion. 87 However, he said it was a poor practice in Unit 8 to report staff injuries as you would end up with 20 or 30 or even more reports a day and this would be unacceptable. It was his impression that it would be viewed as something that had been happening in the Unit and that they were not dealing with the residents properly. There were often incidents of scratches of females on their chests or hands, the men tended to be able to get away but were still a target. He was not saying however that serious injuries were not reported as this would be against the staff's own benefit. 88 He could not recall whether any reports he had filled out concerning resident injury had arisen as a result of restraining the resident. 89 When Mr Hoferek commenced in 2001 there was no induction course. There was Unit induction which mainly was a check off list of where fire extinguishers were and various actions and items that were required. He was familiar with that process and had been part of such inductions. 90 Emmy-Ann Frias is the sister of John Frias and had been employed as an RN in the casual pool at Metro Residences since June 2001. 91 Ms Frias had not worked often in Unit 8, probably only 4 to 6 times per year. 92 She had had cause to care for "J" who was known to be violent on a regular basis. She gave examples of his behaviour which could occur when he was being showered or when he couldn't get what he wanted. The behaviour was directed at both staff and other residents. The behaviour could be triggered by a variety of minor events such as being unable to change the channel on the television. 93 His behaviour involved scratching, kicking, even biting, and with female staff trying to touch their private parts. 94 She considered "J", who was a tall man, to be very strong. A person would need to use a lot of force to restrain "J" when he was acting violently. There were occasions when it would take 2-3 persons to restrain "J". 95 Ms Frias had been involved in restraining "J" with 2 other female staff (all smaller than she was) when he had become aggressive and was trying to attack "S". 96 "J" was restrained and put on the floor where the cushions were and it took Ms Frias and another Nurse to hold his arms out whilst another Nurse held his legs down. 97 Not all of "J's" violent incidents were reported. He had often scratched "S" so many times through the day that there would be too many forms created. He also often scratched the staff especially the casuals. 98 She was aware however that reporting of such incidents was mandatory. 99 She was not aware of whether the incident of restraint of "J" she was involved in was reported as she had only been assisting the other staff members. However, she was not asked to write any statement. 100 Reporting incidents in Unit 8 was not encouraged and staff didn't like filling out reports so they tried to minimise reporting. 101 Ms Frias had heard of a specific behaviour intervention plan in relation to "J" but had never seen it. She had not seen any BISP for any resident during her 3½ years at Metro West. 102 She had also not seen the memo about showering "J" but had heard there was one in the staff room. She had just been told to do it as quickly as possible. 103 Ms Frias was not aware of whether there were specific procedures in place for managing "J's" behaviour, she just knew that when it occurred they tried to move other residents away from him to avoid them getting hurt. 104 It was her experience that when one first worked in Unit 8 you were told which residents were prone to violent behaviour. The induction usually took about 10 minutes but they were not told specifically how to manage residents if they became violent. 105 She understood there was a course conducted by Metro West about managing residents with challenging behaviour but she had never been put through or offered such a course. 106 She had responded to the challenging behaviour of residents by doing what the staff in charge told her to do. She was aware that apart from physical restraint, redirecting residents and giving verbal commands were other intervention options available as alternatives. 107 Ms Frias also maintained that there was not sufficient information given in shift handovers when one arrived at Unit 8 particularly for casuals. You were essentially just told what group you would be looking after. The main handover occurred between the in-charge nurses. 108 Whilst she had attended an induction when she first started in Unit 8 it pretty much just dealt with where everything was. There was nothing specific about particular residents. She had not had an induction session in Unit 8 since the first one she attended. 109 Ms Frias was aware of the situation facing her brother at the time of incident with "J" and would have dealt with the situation in the same way. He used reasonable force, he was defending himself in the face of a sustained attack. 110 Ms Frias considered her brother to be known as a compassionate person with good nursing skills who was ordinarily capable of handing residents with challenging behaviour. 111 She considered her brother was treated harshly and unfairly when he was terminated for the incident with "J". 112 Raymond Garcia was frequently the RN in charge of shift when on duty in Unit 8. 113 On the morning of 15 June the EN Maria Gonzales reported an apparent injury to "J's" back of marks and bruising that she had noticed whilst showering him. 114 In Mr Garcia's view the marks were unusual and consistent with a shoe print and had been inflicted by a kick. He agreed it was also consistent with force being applied in a downward action or from pressure exerted upwards against the foot or someone attempting to hold him down. 115 Mr Garcia immediately reported the injury to the NUM Mr Werner and completed a client incident form. 116 Staff in Unit 8 routinely reported resident or staff injuries and any incidents of restricted practices such as physical restraint. 117 In Mr Garcia's view "J" was not a cunning person, he displayed behaviour well below his chronological age and his aggressive behaviour was successfully managed with re-direction and verbal instruction on most occasions. 118 "J's" gait was unsteady, he was uncoordinated and was easily put off balance with minimal force. When restraint was required it was applied by sitting "J" on his bottom on the floor. 119 Due to his unsteady gait and poor balance this was an effective method of restraint as "J" takes at least 30 seconds to stand, providing sufficient time for staff to remove themselves and other residents from the immediate area. 120 Excessive force was not required to manage "J" and on many occasions only verbal instructions to sit down were necessary. 121 Mr Garcia had never applied a physical restraint to "J" that involved placing "J" on his stomach. 122 Mr Garcia was, however, aware that there were a lot of incidents involving "J's" challenging behaviour during Mr Garcia's time in Unit 8. 123 He did not consider that "J" often became aggressive and lost his temper. However, he agreed that there were a number of incident reports from 7 July 2002 to 15 June 2003 which indicated that there were numerous incidents where "J" either attacked other residents or staff. 124 Mr Garcia agreed it was the sort of behaviour "J" exhibited when he was very frustrated, wanted something and couldn't explain what he wanted. He then outlined a series of scenarios that would result in "J" becoming frustrated. 125 He acknowledged "J" was "in a way" difficult and that sometimes his behaviour made it difficult for some nurses. However, he would not categorise him as aggressive although he could be strong with other residents. "J" was not aware of his strength however. 126 The types of behaviour of "J" outlined in the reports was not common amongst other residents of Unit 8. 127 When re-direction or verbal instructions did not effectively manage "J's" challenging behaviour (which was on most occasions) physical restraint might be required. 128 Mr Garcia had only been aware of two such incidents which involved "J" attacking another resident although there could have been other incidents he was not told about. 129 By separating and physically pushing him away the situation was controlled. He was not present on those two occasions and had never had to restrain "J" himself. 130 He was familiar with the rotational movement employed by two staff to bring "J" to the ground but had not carried out such an action. 131 Mr Garcia indicated that "J" would not be aware that he was frustrated or losing his temper. He just reacted to situations much as a two year old child would throw a tantrum. 132 As the Nurse in charge of the shift he was often required to undertake new staff inductions. Casual staff were inducted when they first came to a Unit or came after some time. They did move from Unit to Unit but every time they joined a Unit they were inducted. That was his practice. 133 The Unit induction included referral to the residents' BISP and where they were located. They were freely available to the casuals. 134 Such plans could be short or 3-4 pages long. Casual staff were only required to sit down and read such plans when they first came to a Unit. However, that was compulsory. If there were changes in the BISP's they would be told verbally by the RN. 135 The induction process also dealt with OH & S issues, completing incident/accident reports and the use of the duress alarm. All staff were issued with duress alarms. 136 All staff were also directed to the shift summary at the beginning of their shift. 137 Mr Garcia had completed a 2 day course on managing challenging behaviour some ten years ago and also had a manual on such behaviour. 138 Casuals were provided with such a document and also told where to access the document. It was mandatory reading. 139 The induction process for casuals was shorter involving a quick Induction Checklist of one page (Exhibit 4) which took about 15 to 20 minutes. The induction for permanent staff was longer and about 3-4 pages. 140 The difference between Unit 6 and Unit 8 was that the residents in Unit 6 were older and exhibited challenging behaviours. 141 Unit 6 was a larger Unit, had more staff and was a better place for such residents. 142 Mr Garcia acknowledged that "J" was moved to Unit 6 subsequent to the 14 June but that was when a vacancy occurred. He had been on the waiting list for some 3-4 years. 143 Mr Garcia considered that regardless of how the mark came to be on "J's" back, that as a vulnerable resident it was an inappropriate form of restraint. It had never been used on "J" before. 144 Mr Garcia also believed that as Mr Frias had worked 231 shifts in Units with residents with challenging behaviour he was aware of the policies and procedures relating to such behaviour, the importance of such policies and procedures and where to find them. 145 Russell Werner the Nurse Unit Manager agreed with Mr Garcia's assessment of "J", his physical attributes, challenging behaviour and the methods for controlling that behaviour. 146 Mr Werner also confirmed the reporting to him on 15 June by Mr Garcia of the apparent injury to "J". He immediately reported this to Nursing Administration. 147 Mr Werner said he had never seen an injury like it and it seemed excessive. It appeared to be an identifiable shoe print and there would have to have been a fairly firm kick or downward pressure or a stomp. 148 Mr Werner also confirmed Mr Garcia's evidence concerning the Unit Induction process, referral of casuals to BISP's on the reporting process. 149 In relation to the shift summary report that all staff were directed to, all were required to sign off that they had read the report. 150 In addition the compulsory reading folder contained a memo providing specific instruction to nursing staff to memorise the risk associated with showering "J". This memo (dated 20 April 2004) was also on the noticeboard. 151 In relation to the duress alarm issued to all staff they were instructed to activate it in any circumstances where there was a risk of resident or staff injury to call for assistance. Mr Frias had not activated the duress alarm at any time during his shift on 14 June. 152 DADHC policy on the use of physical restraint required that any such restraint be approved in a resident's BISP. All such incidents of physical restraint were to be reported on the appropriate form and forwarded to the NUM or ADON. 153 Mr Frias had not completed such report about the physical restraint about the physical restraint and injury to "J" to either the Nurse in charge of the shift or any other staff member or mentioned it to any superior. 154 Mr Werner considered that Mr Frias, having completed 231 shifts in Unit 6 would have been aware of the importance and requirement of responding to challenging behaviour, the mandatory reporting requirements, the requirement of reading BISP's and also of using the duress alarm when necessary. 155 Mr Werner as the NUM was aware of the induction process undertaken by casuals and in his view they were made aware of the policy of responding to challenging behaviours, BISP's, the location of relevant documents and reporting procedures etc. 156 Mr Werner had witnessed "J" being handled by other staff including females with less physical ability than "J", without incident. 157 He confirmed "J" was easily put off balance. In the first instance one would ask him to sit down which he would normally do. If he did not, if you moved him a bit backwards, he usually bent at the knees and sat down. This could be done by a single member of staff. However, it was ore common that two staff members undertook this action. 158 It was possible that restraint of "J" to a sitting position on the floor could be done by one staff member. 159 He agreed that it usually took about a minute for "J" to get up off the floor and in that time a staff member would have time to use the duress alarm if necessary. 160 Mr Werner agreed that there was no practice for any resident that consisted of putting them on the floor with a foot on their back. Such a form of restraint had never been used on "J". 161 Mr Werner considered the injury to "J" on 14 June was caused by the use of excessive and inappropriate force. The restraint method used was totally inappropriate. 162 Mr Werner confirmed that a Unit Induction was only carried out on the first occasion a casual worked in the Unit and would not necessarily be re-done if a casual was absent from a Unit for some months unless the staff member asked for it, which a lot did. 163 The inductions were the same for all Units and a casual could participate in such an initial induction at each of the Units they went to. He would not consider it necessary to put them through another induction when they returned to a Unit after some time. 164 Mr Werner was taken to an incident report involving Mr Frias and "J" where physical restraint of bringing him to the floor had occurred. 165 Mr Werner agreed that appropriate procedures, including reporting had been followed, however another staff member had been involved. No follow-up was necessary. 166 The BISP for "J" had been changed and updated a number of times. Plans were generally updated each 3 months. Any changes generally were conveyed to staff members verbally and would possibly be in the compulsory reading folder as well. 167 Mr Werner agreed that "J's" BISP dated 19 May 2004, which he had signed, read that "Behaviours have not reduced in frequency despite the implementation of the current BISP of 19 May". It further read "Implementation has occurred, change is not effective". 168 Mr Werner agreed the BISP noted that "waiting on a move to Jessamine (Unit 6). This did not mean that because his behaviour was not changing he was being moved to Unit 6 but that until the move could take place it was not much use redoing the BISP. It was to be reviewed when he was in the new environment. 169 Mr Werner confirmed that "J" had been on the waiting list for a vacancy to arise in Unit 6 for some time. However, his behaviour was not the only factor taken into account in moving him to Unit 6. He was partly chosen because of his physical size as not many of his peers were left in Unit 8. 170 Mr Werner also agreed that he had noted on "J's" BISP that "Aggressive behaviours have increased, smearing, touching, clothing removed remains constant. Has been recent staff changes and introduction of new clients who have high support needs." 171 He agreed that unfamiliar and new people may have contributed to "J" being a bit nervous or unsteady. 172 There were times when "J" could be aggressive. He would grab people when he was frustrated or angry or did not know what was going on. His aggression had increased during 2004. 173 Whilst it was mandatory that staff report incidents of injury he conceded that some minor scratches might not be reported. However, staff were encouraged to fill out the forms. 174 Mr Werner considered that as Mr Frias had worked over 300 shifts at Metro West he would have been well aware that BISP plans change and how to access those changes in the compulsory reading folder or on the noticeboard. 175 Ms Karen Foster confirmed the evidence of Mr Garcia and Mr Werner concerning the following issues: · physical attributes, condition and nature of "J", · DADHC policies and practice in relation to staff inductions, · Resident Behaviour Intervention Plans and in particular that pertaining to "J" and additionally that Mr Frias was familiar with that plan, · Duress alarms, · Reporting procedures, · mandatory requirement for staff to report staff/resident injuries, · mandatory requirement for staff to report incidents of physical restraint of residents, · the transfer of "J" from Unit 8 to Unit 6. 176 Ms Foster had conducted the investigation of the incident concerning Mr Frias and "J" once it had been reported to her. Her report of the investigation was Exhibit 22. 177 On the day of the incident the staffing levels in Unit 8 had been 4 staff including an RN. The Unit's normal complement of residents was 14 but on the 14th June only 10 were present due to some residents being away on leave. 178 Ms Foster considered the staffing levels appropriate and of the correct skill mix with a staff/resident ratio of 1 staff member to 23.5 residents which was in excess of the average staff/resident ratio which was of 1 to 5. 179 The ADON Manon Wong had initially interviewed Mr Frias and Ms Foster interviewed him with Mr Wong subsequently. She also examined "J". 180 During the interview Mr Frias told her that he had restrained "J" and did not notice any injury at the time. 181 Mr Frias was shown photos of "J's" back that had been taken by Mr Werner and Ms Foster asked him if she could look at his shoes and whether they were the ones he had been wearing the afternoon before. He agreed they were the same shoes and on examination Ms Foster observed that the pattern of the shoe matched the marks on "J's" back. 182 Ms Foster denied the assertion made by Mr Frias that the shoes were new and "the treads were at a point". In her observation the shoe presented as completely flat and smooth and the treads were definitely not pointed. The zigzag grooves were cut into the sole and were internal. 183 Ms Foster also observed that Mr Frias had an injury to his wrist (she could not remember which one) which consisted of a deep gouge and bruising around it. It looked like a fingernail gouge and had a dried scab so it was not fresh. Mr Frias had also not reported any injury to himself. 184 Mr Frias claimed he could not remember how the injury to "J" occurred, "J" had lashed out at him and he had restrained "J" by putting him on the ground. "J" landed on his side and Mr Frias turned "J" onto his stomach to prevent "J" scratching him. He held him on the floor by holding his shoulders and could not remember putting his foot on "J". Everything happened very quickly and was over in about 2 minutes. When Vincent Aquino returned from getting "J's" clothes Mr Frias said he was showering "J". He did not say anything about the restraint to Mr Aquino. 185 This was confirmed by Mr Aquino during her investigation of the incident and her interview of Mr Aquino who said when he returned "J" was already in the shower and he assisted Mr Frias to finish the showering of "J". 186 Ms Foster interviewed all staff on shift that afternoon. No-one else was aware of the incident involving "J". 187 Ms Foster, having seen the shoes of Mr Frias, and "J's" back, believed that Mr Frias had "cruelly kicked "J" in the back while he was already on the ground". 188 She did not consider that the marks could have resulted from "J" being held on the ground by pressure of a foot on his back. In any event it was an unacceptable method of restraint to place a resident on the floor on their stomach and be stood on. 189 As a result of the incident she considered that DADHC had lost confidence in Mr Frias' ability to deal with vulnerable and physically and behaviourally challenged residents whose safety was entrusted to him. She would not want John Frias working for the Department or with residents again. 190 Ms Foster did not agree that there was a culture of staff not reporting minor injuries and confirmed statistics that had been taken out from the Metro West's records for the period January to September 2004 which showed 418 incidents concerning staff and residents had been reported. In addition such reports came to her as Director of Nursing. Even if there was such a culture it was not condoned by management. 191 Ms Foster indicated that when casual staff were inducted they were directed to the residents' BISP's which detailed how to respond to incidents. 192 She confirmed that the plans were kept in a room that was locked but that Mr Frias could ask for access to the room. 193 On the first shift on duty in a Unit the senior in charge of the shift would direct the staff member to the BISP's, show them where they were and give them access to them. This would not occur on subsequent shifts as they would be expected to know what was in the plans. 194 Ms Foster had been unable to locate induction forms for Unit 8 which would deal with Mr Frias' initial induction. 195 The whole process took about 2 hours. There was a check list to be ticked off by the ADON (Sections 1-4) conducting the session and the staff member also had to complete sections 5 to 9 independently, sign it off and return to the inducting officer within 6 weeks. The ADON was responsible for ensuring staff completed the process. 196 The BISP's were referred to in the service induction and the casuals were shown where they were kept. If there was a dramatic change in the plan or a significant issue that had changed the NUM would ensure it was brought to all staff's attention. 197 Ms Foster was taken to specific incident reports concerning "J" (Exhibit 16) and in particular one of 11 September 2002 in which "J" was physically restrained by 2 staff members and sustained an injury. She did not agree that it was a similar incident to 14 June as a large number of people were there at the time and "J" was biting and kicking as well as the scratching and pinching that had only happened with John Frias. 198 A range of other reports of other incidents concerning the aggressive behaviour of "J" were also put to Ms Foster who said she did not consider that that suggested "J" should have been categorised as "violent". 199 Ms Foster only considered some as violent if they intentionally set out to harm someone, who caused serious injury or had the ability to cause serious injury and who required either one to one or two to one supervision. 200 She did not accept that when dealing with people who had an intellectual disability requiring that there be an "intention" to inflict harm would miss a lot of very aggressive residents. Some residents had varying degrees of intellectual disability, some had none and only physical disabilities. 201 Ms Foster had reviewed every incident concerning "J" and all the severest injury he had caused was scratching and bruises associated with that scratching. 202 She regarded injury as something that resulted in lost time such as a broken nose. 203 Ms Foster accepted however that "J" was aggressive and such behaviour would continue for some time. However, it was not consistent or predictable and there were triggers to his behaviour such as showering. Whilst staff did receive minor injuries such as scratches or bruising, she was not aware of any serious staff injury. 204 Amongst the reports put to Ms Foster was one involving physical restraint of "J" and John Frias and another staff member and that had been completed by Mr Frias. The incident had involved aggressive behaviour by "J" - scratching, kicking and biting etc. and he was restrained by being taken to the ground and held there for 5 minutes until he calmed down. 205 The incident had occurred some 13 months or so before 14 June and the report noted that the BISP had been allowed and no further action was required. 206 Ms Foster was asked whether in the light of that earlier incident it would not be reasonable for Mr Frias to consider that the next time he encountered such an incident that he respond in a similar manner. 207 Ms Foster's response was that she would have expected Mr Frias to respond in a similar manner by completing an incident report plan. 208 She was not aware however of what was in "J's" BISP at the time and whether such restraint was approved. If it was not, it should have been reported on the restricted practice form. 209 Various other reports noting aggressive behaviour by "J" were also acknowledged with either the action taken by staff considered appropriate or when it was not (staff pulling him back by the shirt) then re-education of the staff concerned would have been involved rather than disciplinary action. 210 In relation to the transfer of "J" from Unit 8 to Unit 6 in addition to generally confirming the evidence of Mr Werner and Mr Garcia, Ms Foster indicated that the residents in Unit 6 generally had more challenging behaviours and they were also younger and more mobile. 211 Ms Foster acknowledged that her briefing notes (Exhibit 17) compiled for the Regional Director was essentially a factual account of what had occurred and did not go into any previous training of Mr Frias, what induction courses he had undertaken and whether he had gone through a behavioural intervention management plan. 212 The document had been completed after the investigation and interviews had taken place, and there was no indication of any investigation or observations about any training undertaken by Mr Frias. 213 Ms Foster agreed that at that stage it appeared a decision to terminate had been made. She said this was because the information had been confirmed. 214 Ms Foster also indicated that the training for part-time and full-time permanent staff on challenging behaviours involved a 3 day on-site course with an external trainer. 215 Ms Foster acknowledged a document that contained email responses to her inquiry of staff about John Frias' training (Exhibit 21). She indicated that Mr Frias had not attended managing challenging behaviour training as they did not routinely train casuals in that. 216 Ms Foster was also asked to respond to issues raised in Exhibit 21 about how it could be ensured that new staff should have read and signed all policies and comments about it not being compulsory for casual to read all policies etc but were made aware of the policies in their first induction. 217 Ms Foster disagreed that it was not compulsory and said casuals were required to familiarise themselves with the policies as part of the self-induction process. 218 She also noted that they were dealing with professionals whether RN's, EN's or AIN's, or an undergraduate assistant who was in a third year nursing course and well aware of their legal and professional responsibilities to familiarise themselves with policy. 219 She acknowledged however that to a large degree it was left up to the casuals, but they were aware of where the policies were kept. 220 Ms Foster considered that the non-reporting of the incident of 14 June was due to Mr Frias trying to cover up the incident and also due to the seriousness of the injury in comparison to earlier reports. 221 The difference between those earlier reports and the June 14 incident was that there was no substantial injury sustained to "J". 222 Ms Foster qualified her use of the description "substantial injury" and said it was "substantial bruising" with no medical treatment organised. 223 Ms Foster had conducted the investigation swiftly due to the nature of the participants in the incident and the fact that "J" who could not communicate verbally could not participate in the investigation. 224 Because of the duty of care owed by the Department to "J" and other residents she had no alternative but to carry out the investigation swiftly. 225 Ms Foster also noted that Mr Frias had done over 200 shifts in Unit 6 where they had a clinical nurse specialist in challenging behaviour. It was that nurse's role to teach staff. SUBMISSIONS 226 Mr McNally for the applicant submitted that in relation to the alleged breach of policy by Mr Frias in not reporting his own injury from 14 June that he had considered the injury was minor and not more than superficial scratches. It was not a compensable injury. His evidence of non reporting of such injuries was supported to an extent by Mr Werner. It was not a matter that should give rise to dismissal. 227 In relation to "J's" injury this was not noticed by Mr Frias and he was not made aware of it until the meetings the next day. 228 As soon as he was made aware of the injury he attempted to complete a report but experienced the difficulties indicated in the evidence as to the different report books in Unit 6 and Unit 8. 229 It was submitted that he did not breach policies as he was not aware of the injury and hence the need to report on 14 June. 230 As to the physical restraint issue it was submitted that based on the evidence about the training issues, Mr Frias had received no formal training required in relation to such procedures. 231 However, he was treated on the assumption that he was familiar with the procedures and should have known what was expected of him. 232 There had been an earlier incident reported where Mr Frias had pulled "J" to the ground and restrained him for several minutes and it was noted that the BISP was followed and no further action was necessary. 233 On 14 June, Mr Frias found himself in a similar incident with no formal training, the other Nurse left the room, and Mr Frias, given his level of training and the acceptance of how he had previously dealt with such an incident to terminate him on the basis of failure to follow procedures was harsh, unreasonable and certainly unjust. 234 Ms Foster acknowledged that questions as to what training Mr Frias had undertaken were not raised before he was terminated and not raised until after the unfair dismissal application had been made. 235 Mr McNally highlighted the circumstances of Mr Frias on 14 June; a BISP he had not seen; no knowledge of any change; no reference of the showering memo on the noticeboard; working in Unit 8 after a gap of some months; no training in relation to managing challenging behaviour; the incident happening within 10 minutes of the start of shift and with therefore no opportunity to look at the compulsory reading folder. 236 Mr McNally submitted that in relation to the compulsory reading folders the evidence showed that there was an acknowledgement by management that it wasn't compulsory for casual staff to read them, they do not have time to read them and were not aware of particular resident plans. 237 Mr Frias was terminated purely on a factual basis without any analysis of his situation, level of training, or how he could have been expected to respond. That was the crux of the matter. 238 Whilst much was made of Mr Frias' practical experience in Unit 6 there was conflicting evidence about the nature of the residents of Unit 6 and the reason for the transfer of "J" from Unit 8 to Unit 6. 239 Mr McNally submitted that Mr Frias' practical experience led him to the mistaken belief that he could handle the situation with "J" on his own. He was not aware of the showering memo. He said that if he had been aware of it, he would have attempted to shower "J" on his own. 240 Mr McNally pointed out that Vincent Aquino, who had not given evidence, left the room, left Mr Frias by himself with "J" which was not in compliance with the policies or procedures in relation to "J". 241 The evidence was that new people, new staff made "J" agitated and nervous. 242 There was no evidence to contradict either Mr Frias' account of "J's" behaviour or to suggest that his account was exaggerated. There was also no evidence that Mr Frias was not being attacked by "J". The issue is how he should have responded in the circumstances. 243 In relation to the failure to follow procedures in managing challenging behaviour the respondent's case was that essentially everyone was fully aware of the policies and procedures and that Mr Frias ought to have known how to deal with the incident other than in the way in which he did. 244 However, the email from Karen Foster enquiring about Mr Frias' training tells the true story. There was a response indicating he did not attend any training, according to the in-service training record, "on managing disruptive behaviour or risk assessment and managing of challenging behaviour and reporting of staff injury and incidents is included in those training sessions". 245 The email also dealt with the issue of how it was that they ensured staff read policies and procedures. 246 It was acknowledged in one response that Unit staff read and signed policies and new staff should have read and signed policies, it went on to note "However, with casuals they might work in all Units and might not get the time to do that because of the short time they spend in the Unit." 247 This was acknowledgement that whatever the policy said at a practical level, casuals do not have the time to do it. 248 Mr Werner had also acknowledged that it was not compulsory for casual staff to read all the policies but were made aware of them in their first induction procedures. There were policies available as a reference for them when they had issues with residents. 249 Ms Foster confirmed that the course in managing challenging behaviour was a three day course. This suggests that it was a specific area with specific strategies and more than a general notion that someone may pick up through practical experience. 250 This was an admission that Mr Frias had never received such training. 251 There had been no documentary proof or evidence to contradict the admission contained in that email. 252 So there was a situation where Mr Frias did not have the formal training required in relation to those procedures yet he was treated in a manner that assumed he was familiar with such procedures and ought to have known exactly what to do. 253 Ms Foster acknowledged that the issue of what training Mr Frias had undergone was not raised until after the unfair dismissal proceedings had been initiated. 254 She also admitted that questions on his training weren't raised prior to his termination and that course of action was determined on 16 September. 255 This was done on a factual level but with no analysis of his situation and lack of training and how he should respond. 256 There was a great deal raised about Mr Frias' practical experience in Unit 6 and that therefore he should have known how to deal with challenging behaviour. However, there was conflicting evidence in relation to the transfer of "J" to Unit 6 about just what type of residents it was designed for and why "J" was to be transferred. 257 There was an attempt to play down "J's" challenging behaviour but Mr Werner ultimately admitted that this was the reason for his transfer. That was borne out by the memo at the back of the BISP. 258 The end result was that Mr Frias' practical experience led him to the mistaken belief that he could deal with the situation on his own. He was not aware of the showering memo and as things turned out it was not the best way to deal with the matter but he did not know any better. 259 The letter of dismissal and the grounds did not particularise in any meaningful way the alleged breaches of failure to follow policy except for perhaps pressing the duress alarm. 260 There was no evidence that when redirection and verbal instructions have not worked, how the situation could have been successfully handled and if so whether it would have changed the outcome. 261 Mr McNally also submitted that the investigative process leading up to the termination was flawed. There was no real attempt to investigate the matter or give the applicant the opportunity to explain his side of the story. 262 Karen Foster came to the meeting of 21st with her mind made up, having already decided to terminate Mr Frias. That amounted to a denial of national justice and on that basis alone the dismissal was harsh, unreasonable and unjust. 263 Mr McNally relied on a Decision of the High Court in Re Refugee Tribunal; Ex Parte H [2001] HCA 28, 24 May 2001, S276/2000 on the issue of apprehension of bias in relation to Ms Foster not coming to the meeting of 21 June with an open mind and having prejudged the situation. 264 Mr McNally also cited a Decision of the Full Bench in Burge v NSW BHP Steel Pty Ltd [2001] NSW IR Comm 117 and issues raised in that decision concerning the need to look behind the fight itself not the causes; assuming there is nothing in the workplace that might incite an employee to violence and whether or not the act complained of was deliberate or wilful or of such a nature as to strike at the heart of the essential elements of the employment relationship. 265 Mr McNally submitted that relying on Burge it was necessary in this matter to look at the incident itself and see whether the applicant's response was a reasonable one. 266 Mr McNally summarised the particular incident and the particular circumstances Mr Frias found himself in and the judgement he made on how to handle the incident based on those circumstances, his experience and lack of training. 267 Mr McNally pointed out that there was no evidence that Mr Frias acted maliciously or that he was somehow acting in a retaliatory way or had any concern other than preventing the attack of "J" on himself. 268 If Mr Frias did not handle the matter the best way as he thought he had then perhaps he should have been sent to training on managing challenging behaviour. 269 Perhaps he should have been counselled and spoken to about the best way to deal with the situation. Instead he was sacked and because "J" had a mark on his back Mr Frias was out the door as if he had committed almost a criminal offence and somehow abused a vulnerable resident. That was not how it happened nor what the evidence suggested. 270 Mr McNally dealt with the evidence concerning "J's" size and pointed out that it was obvious that Mr Frias was not "the biggest guy" and would have been at a disadvantage in terms of strength if not co-ordination. 271 There was evidence about "J" fighting and resisting Mr Frias and it took between 2 and 5 minutes to settle him down and in that time his foot came in contact with "J's" back. 272 Whilst one witness had initially suggested Mr Frias kicked "J" it was later conceded that was not what he meant. 273 The question came down to, did Mr Frias "stomp" on "J's" back or was he making a genuine attempt to restrain him and hold him in place. This was acknowledged as a possibility by Mr Garcia. Mr McNally submitted that this was consistent with the way Mr Frias described the event. 274 In addition there was uncontroverted evidence that "J" had sensitive skin. That was supported to an extent by the photos showing other marks. 275 Mr McNally submitted that it was not open to the Commission to consider on the evidence that Mr Frias stomped on "J's" back. Whilst it was not an action in compliance with the BISP it was not an illegal assault without reasonable excuse as characterised by the respondent. 276 Mr McNally also took issue with the severity of the injury. Based on the photos there appeared to be an abrasion but no surrounding bruises and the mark was consistent with pressure from the sole of a shoe and consistent also with a person with sensitive skin. 277 If there had been stomping there would have been discoloration and bruising it was submitted. 278 The only reference other than the photographs was the notation on the report that "J" was seen by Dr Wadhera at 3 pm. Nil specific treatment was indicated or prescribed. 279 This was consistent with an abrasion more than a severe injury caused by a vicious assault or attack. To characterise it as such as a number of witnesses sought to paint it was an exaggeration and not a fair assessment. Given the potential that this incident has on Mr Frias' career as a nurse that was catastrophic. There was no evidence to support such a finding. 280 Given the grave consequences for the applicant's livelihood and future career the incident was not fairly investigated or dealt with. 281 The Police were made aware of the incident and chose to take no action. Although it was acknowledged that there was a different onus in relation to that. 282 Mr McNally submitted that in the circumstances compensation was not an adequate remedy. Mr Frias did not seek re-instatement but sought re-employment. Re-employment was not sought at Metro West Residences but re-employment elsewhere within DADHC was. 283 DADHC was a large department and it would not be impracticable to re-employ him elsewhere in the DADHC as a casual in conjunction with an Order that service not be deemed to have been broken. 284 Mr McNally relied on Perkins & Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-197 as cited in Burge on the re-employment issue. 285 Mr Taylor for DADHC submitted that there were a lot of facts and a lot of hearsay in this matter. He re-iterated the basic factual background of "J" emphasising that he relied on staff to keep him safe and free from injury. 286 It was Ms Foster's evidence that whilst he was tall and strong he was not aware of his strength nor was he cunning. 287 Mr Taylor rejected the submission that the injury sustained by Mr Frias was superficial. He only attempted to report it after being directed to by a supervisor. 288 The issue was not whether wrestling "J" to the ground was okay, based on Mr Frias' previous experience, but the injury sustained by "J". 289 Whether redirection or verbal intervention had not worked was not known as there were no witnesses. 290 Mr Taylor rejected the submission that Ms Foster had come to the meeting of 21 June with either a closed mind or the fate of Mr Frias already determined. If Mr Frias had been able to provide any additional material then the letter of termination would not have been handed over. 291 In addition to the report of Dr Wadhera there would also have been a discussion between the Director of Nursing and the Doctor about "J's" injuries. 292 In relation to the issue of self-defence and the fact that there was no dispute as to what had happened this was in fact disputed as they didn't know what the facts of the incident were only that a vulnerable resident ended up injured. 293 Mr Frias could not remember what happened but could remember he had the duress alarm in his right hand pocket. There was evidence that it took a minute for "J" to get up off the ground which would have allowed Mr Frias time to use the alarm. 294 Regardless of whether the action that occurred was "a stomp", "a kick" or "a stamp" all of the respondent's witnesses said it was inappropriate and excessive force and the outcome was inappropriate and excessive. 295 The photographs were not the only evidence of the injury relied on, there was also the direct observation of "J's" back. 296 No-one present at the hearing was qualified to state the severity of the injury. The mere fact that no treatment was required did not give any rise as to how severe the injury was. He gave the example of having broken ribs which was not treatable. 297 The Commission was asked to take into account a number of factors: · Mr Frias has worked 231 shifts in the Unit with residents with challenging behaviour, · the possible self-interest of his evidence and the bias of his witnesses due to their family/colleague associations, · Mr Frias in his case exaggerated the amount of force needed to restrain and control "J", · he sought to imply there was a culture of not reporting incidents, · he sought to make out a situation where there was a vacuum of information, · staffing levels were inadequate. 298 These factors had all been specifically addressed by the respondent's witnesses and were rejected. 299 Further Mr Frias' witnesses both said they were involved in incidents of restraint with "J" yet only the incident involving Mr Frias resulted in an injury to "J". 300 Mr Frias had been involved in a previous incident with "J", had reported it and no injury had resulted. 301 DADHC believed Mr Frias intentionally attempted to conceal the incident because to report it would be to reveal the inappropriate and excessive nature of his actions which DADHC believed amounted to a "cruel assault" on a vulnerable resident. 302 The evidence of the applicant's witnesses should be ignored as it displayed at best a degree of ignorance or at worst an attempt to distort reality in favour of Mr Frias. 303 Mr Taylor generally questioned the relevance of the cases cited by Mr McNally given the circumstances of this matter which is particularly related to a carer and resident. 304 As to consequences for Mr Frias in his career, he should have considered his actions before the incident. 305 It was also not relevant that the matter did not proceed further due to the different standards of proof and the fact that "J" could not be interviewed as he had no verbal communication. 306 The transfer of "J" from Unit 8 to Unit 6 was so he could be with his peers and not motivated by his behaviour. At the time of the incident the resident : staff ratio was higher in Unit 8 than in Unit 6 to which he was transferred. 307 Mr Frias had been employed as a casual under s.39 of the Public Sector Employment and Management Act which provided that the services of a casual employee could be dispensed with at any time. 308 DADHC believed on the balance of probabilities that Mr Frias assaulted a vulnerable resident, "J", in a mean spirited and cruel way by kicking him in the back whilst he was on his stomach on the floor with such inappropriate and excessive force that his flesh was marked. 309 DADHC also believed that Mr Frias had deliberately attempted to conceal the incident by not reporting it. 310 DADHC had lost all confidence in Mr Frias' ability to deal with vulnerable and physically and behaviourally challenged residents whose care was entrusted to DADHC. A crucial element of trust in the employment relationship had broken down. 311 DAHC had a responsibility to ensure that staff who assaulted or injured residents by excessive, inappropriate or other cruel means were not given the opportunity to repeat this behaviour. 312 Mr McNally in reply raised a Brown and Dunn issue in that it was not put to the applicant's witnesses that their evidence was exaggerated or distorted because of their relationship with Mr Frias. 313 If their evidence displayed a level of ignorance on certain matters that in fact showed that two more nursing staff were unaware of policies. 314 Mr McNally rejected the suggestion that no other member of staff dealt with "J" in such a way that an injury was not sustained by him and pointed to those incident reports specifically drawn to Karen Foster's attention where restraint had resulted in injury to "J". That submission on the part of the respondent was not accurate. CONSIDERATION 315 I have carefully considered the evidence and submissions in this matter. 316 There is no question that the residents of Metro West being vulnerable and physically and/or intellectually challenged are entitled to be treated with respect and dignity and to receive the highest level of care available. 317 I have no doubt that staff at all levels within DADHC accept their responsibilities in this regard and discharge them to the best of their ability. 318 I do not propose to go over the evidence in detail but to highlight and consider those issues that require me to make findings in this matter and thus determine whether or not the dismissal of Mr Frias was harsh, unjust or unreasonable. 319 There are a number of issues for consideration as follows:- v Should Mr Frias have reported his own injury arising from the incident with "J"; v Was the failure to report such injury a serious breach of policy and procedure that it should have been taken into account in determining whether or not to dismiss Mr Frias; v Was there a culture amongst staff not reporting minor injuries; v Should Mr Frias have reported the injury to "J"; v Was the failure to report such injury a serious breach of policy and procedures such that it should have been taken into account in determining whether or not to dismiss Mr Frias; v Did Mr Frias use excessive force in restraining "J"; v Were his actions intended to cause harm to "J" rather than restrain him in self-defence; v Was Mr Frias' failure to report such restraint a serious breach of policy and procedures that should have taken into account in determining whether or not to terminate Mr Frias; v Did Mr Frias deliberately kick "J"; v If there was an inappropriate form of restraint used on "J" was that a sufficient reason to justify dismissing Mr Frias; v Could "J" be categorised as both aggressive and violent; v Should Mr Frias have been aware of the showering memo; v Should Mr Frias have been aware of "J's" BISP; v Had Mr Frias received sufficient and appropriate training to carry out his duties in Unit 8; v Should Vincent Aquino have left Mr Frias alone with "J"; v What should Vincent Aquino's role in the events have been; v Was there a proper and thorough investigative process undertaken prior the decision to dismiss Mr Frias; v Was Mr Frias in all the circumstances afforded procedural fairness; v Were staffing levels adequate in Unit 8 on 14 June 2004. 320 Obviously some of the abovementioned matters are inter-related and some are of more significance than others. 321 Dealing with perhaps fairly straightforward issues first. On the failure of Mr Frias to report the injury to "J", as the mark on his back was not visible during and after his showering on the 14 June I fail to see how Mr Frias could have reported an injury. 322 As far as Mr Frias and quite clearly also Vincent Aquino were concerned they were not aware of any injury to "J" and thus could not report any injury. 323 No adverse finding should have been made by DADHC in this regard. 324 In relation to the injury suffered by Mr Frias, I am satisfied on the evidence, not just of Mr Frias and his witnesses but also what came out in cross examination of DADHC witnesses, that not all minor injuries to staff such as scratches are reported. I also note that it does not appear that Mr Aquino reported the scratch he sustained in the courtyard (there was no evidence to the contrary on this issue). 325 I accept that that practice was not condoned by DADHC but I also accept that senior staff would have been aware that not every minor injury (such as a scratch or bruise arising from a pinch) was being reported. 326 I also accept that it is abundantly clear from all the oral and documentary evidence relating to "J" - the previous ACCIDENT/INCIDENT REPORTS (Exhibits 16) and his BISP that he does, as a regular pattern of behaviour, attempt to scratch, bite and pinch staff and other residents. 327 I can appreciate that the reporting of such minor injuries, given their frequency, would be excessive. However, I consider that an appropriate guideline that could be issued to staff would be that where the skin is actually broken by a scratch (rather than just a red mark) or where any bruising etc requires any treatment, such injuries must be reported. Obviously more serious injuries must also be reported. 328 Perhaps in relation to those staff working with "J", wearing long sleeve shirts/blouses would be more appropriate (summer weather notwithstanding) and lessen any contact with bare skin in scratching incidents. 329 It follows from the above that I do not consider that Mr Frias' failure to report his own injury serious enough to be taken into account by DADHC in the absence of proper guidelines as to what type of injury really should merit reporting and the practice of non-reporting amongst staff. 330 I now turn to the actual incident concerning Mr Frias and "J". There are a number of background matters that I consider most relevant and important in any consideration of what took place. 331 Mr Frias had not worked in Unit 8 for some 4 months. This raises issues in relation to re-induction, training generally and familiarity with changes made to "J's" BISP on 19 May 2004 particularly in relation to showering etc which are dealt with below. 332 There was nothing in the Shift Changeover Checklist to indicate there had been any difficulties with "J" during the morning shift. 333 The domestic worker advised Mr Frias on his arrival at Unit 8 that "J" had been showing challenging behaviour that morning. 334 The In-charge Nurse did not indicate there were any issues concerning "J" on being questioned by Mr Frias and he was directed to go immediately to the room where "J" and "S" were located. 335 "J" commenced displaying aggressive behaviour towards "S" very shortly after Mr Frias arrived which required him to take "J" out into the courtyard. Vincent Aquino assisted him in getting "J" into the courtyard. 336 "J" tried to reach out and scratch both staff members, he was screaming and shouting and then the excavation of his faeces and smearing of it on walls etc commenced. 337 It was Mr Frias' uncontested evidence that Vincent Aquino suggested taking "J" into the Unit where other residents could not see his behaviour. Mr Frias then decided to proceed to shower "J". 338 Vincent Aquino said he would go and get "J's" clothes from the other side of the Unit. Vincent Aquino left Mr Frias alone with "J". He is a permanent member of staff, more senior to Mr Frias. There is no issue whatsoever that it should have been up to Mr Frias (as suggested by DADHC) to somehow not have allowed Vincent Aquino to leave. 339 If anything, in my view, it is Mr Aquino who should have taken over responsibility for "J", and directed Mr Frias to go and "J's" clothes. Alternatively, given the showering memo he should have ensured they both took "J" to get his clothes and then came back to shower him. 340 Presumably, and there was nothing to the contrary suggested, Mr Aquino was well aware of the showering memo of April 2004 and should have cautioned Mr Frias not to take any steps to commence to shower "J" until he returned and could assist in that process. 341 I note that Mr Aquino was not called as a witness and there is only an account of his interview by Ms Foster in Exhibit 22. 342 Indeed the memo concerning showering of "J" goes beyond showering as follows - "WHENEVER WORKING WITH "J" IN A FAIRLY CONFINED AREA (SUCH AS IN THE SHOWERS OR HIS BEDROOM) THERE MUST BE TWO STAFF PRESENT ." (bolding is as shown on the memo) 343 The memo goes on to indicate - "IF HE IS SOILED AND NEEDING A SHOWER DURING THE DAY TWO STAFF ARE TO BE INVOLVED" 344 This memo was on the noticeboard and also in "J's' BISP, neither of which had been seen by Mr Frias. 345 I fail to see how Mr Frias could have had the remotest opportunity to check either document given that he was directed to go straight to the room with "J" and the incident then unfolded pretty much as soon as he got there. 346 Such a significant change to practice in relation to "J" should have been brought to Mr Frias' attention immediately on commencing work. 347 I consider that it is totally inadequate to expect casual staff to acquaint themselves with such a significant direction or to even know there is something that significant to become acquainted with. 348 Also I note that there are very, very detailed instructions in "J's" BISP relating to, inter alia, showering procedures to be followed. 349 It is totally inadequate to expect casual staff to go and familiarise themselves with residents' BISP's. 350 I accept the evidence of Mr Frias and his witnesses as confirmed by Ms Foster that such documentation was in any event locked away as I would expect such confidential information to be, together with other resident records. 351 In my very firm view casual employees on a regular and ongoing basis, as Mr Frias was, must be taken through the relevant BISP's for all residents coming into their care in a Unit by a more senior and permanent member of staff. That involves actually being shown the BISP and taken through it page by page. 352 The BISP for "J" was very detailed with specific directions concerning a range of situations. Any staff member dealing with "J" should be totally familiar with that BISP in my view. 353 Whilst on the issue of "J's" BISP the following entries in relation to the description of "J's" behaviour are relevant. 354 Under the heading "DESCRIPTION OF BEHAVIOURS" the following issues are dealt with: (a) "Aggressive behaviour to self and others" - this describes what happens when "J" becomes agitated, what to look for and what occurs, including "grabs, scratches, pinches or pulls at their hair".... It then goes on to note "This behaviour is relatively severe as it can cause significant injury to others". It also notes that the behaviour occurs approximately once every 3 days. (b) "Stripping, urinating inappropriately and smearing faeces". This behaviour is described, when it occurs and it notes "This behaviour constitutes an health risk to staff and other clients." It occurs approximately monthly. (c) "Inappropriate Touching" - this relates to female staff.. 355 Under the heading "Reactive Strategies in Other Settings" is noted "Important: "J" can be very dangerous when physically aggressive. For safety reasons, staff should always use the unit personal alarm system if there is no other staff available. (Emphasis added.) 356 Clearly this specific aspect of the BISP together with the detailed shower arrangements as amended by the April memo is extremely significant information that should have been brought to the attention of all casual staff'. 357 The BISP also notes in relation to showering "It is important for staff to be consistent in the shower routine with "J" and to have other staff members nearby for immediate assistance if needed." (underlined by DADHC.) 358 One cannot help but wonder whether Mr Frias, unknowingly had departed from "J's" showering routine (as had Vincent Aquino) which exacerbated his challenging behaviour. 359 The BISP certainly goes on to say that any use of physical restraint or any other restricted practice must be recorded on a Restricted Practices Report Form and appropriately forwarded on. 360 There is however no mention in the BISP of what action should be taken if the verbal commands, hand signals and re-direction strategies are not successful. 361 There is a follow-up BISP/IRP Review dated 6/7/04 noting "behaviours have not reduced in frequency despite the implementation of the current BISP (19/5/04): ... "changes not effective, waiting on move to Jessamine". A further notation later in October notes "aggressive behaviours have increased". 362 It is not insignificant to note that "J" was subsequently transferred to Jessamine (Unit 6) which specifically caters for residents with challenging behaviour. 363 It is also apparent from reading "J's" BISP that he is not physically disabled in the sense that Mr Taylor sought to imply, particularly when challenging why Mr Frias did not use his duress alarm when he had "J" on the floor by moving away from him as he was "physically and intellectually disabled". 364 The BISP describes an extremely active and demanding young man. Indeed, it notes under "Recreation and Relaxation" - "As "J" is an active person he should have regular opportunity to go for a run or walk on the oval for 15-20 minutes until he is satisfied." Also noted is that "J" likes to be first into the dining room or to the front door etc. (emphasis added) 365 There is also inference in both the BISP and the ACCIDENT/INCIDENT REPORTS (Exhibit 16) that "J" moves "quickly" and suddenly. 366 I accept on all the evidence "J" is physically tall and strong and can be extremely physically aggressive and even what could be termed violent in his actions. This does not involve any deliberate pre-meditation but clearly is a purely reactive response to situations in which he becomes frustrated. 367 It was Mr Hoferek's evidence (not contested) that 2 staff would perform a swinging around action to bring "J" to the ground and described that action in detail. Two staff were required, one to hold each arm to stop him striking out. Indeed Ms Frias described an occasion where once on the ground, a third staff member was required to hold "J's" legs. It took some time for him to settle down. 368 Mr Hoferek, also a casual, said that "we were never taught a proper technique how to bring someone down". They were looking to do it the safest possible way. 369 Mr Garcia confirmed the action described by Mr Hoferek as one method used to restrain "J". The other was to push at the back of his legs to put him to a sitting position. 370 Having painted some relevant background I now turn to the restraint of "J" by Mr Frias and the result of that restraint. 371 Mr Frias clearly had confidence in his own ability to handle the situation he found himself in based on his experiences thus far. However, that confidence and the judgement he then exercised was probably misplaced. It was also exercised in the absence of absolutely relevant and vital information about "J" and his routine in showering and information in his BISP. 372 That judgement was also exercised in the absence of proper training. The difficulty being that Mr Frias wasn't in a position to know what he should have known or indeed was not even really aware of what he did not know not having had the benefit of the same training as permanent staff. 373 His confidence had obviously arisen, it seems to me, from his past experience and also the fact that it appears he only ever received positive feedback from NUM's about his performance and skills. 374 It is also appropriate to note here that there was not one scintilla of evidence raised about anything at all that was adverse or negative in relation to either Mr Frias' performance or conduct prior to the 14 June 2004. He was an employee with an unblemished work record. 375 After Vincent Aquino had left to get "J's" clothes Mr Frias was in the bathroom with "J" and something set "J" off again when Mr Frias was alone with him and he started to lash out at Mr Frias and tried to scratch him etc. "J's" hands were covered with his own faeces. 376 Mr Frias clearly had concerns for his own personal safety and health and I have to say that based on all the evidence those concerns were not misplaced. 377 I have taken all the oral evidence and the documentary evidence of "J's" BISP and earlier Accident/Incident Reports (Exhibit 16) into account in forming that view. 378 Faced with that situation Mr Frias decided to bring "J" to the ground to control and settle the aggressive behaviour occurring. I concede it is unclear whether verbal instructions or re-direction was tried first. However, in the circumstances that may not have even been an option. 379 In my view it was clearly never going to be physically or practically possible for Mr Frias, on his own, to be able to bring "J" to the ground and not be able to control swinging , striking out arms and legs. One only has to look at the accounts of how two and on at least one occasion 3 staff were needed to hold on to "J" in a physical restraint situation to see what an impossible task Mr Frias was undertaking. 380 If it all happened as suddenly and quickly as Mr Frias said and I have found no reason to doubt Mr Frias' evidence, I do not know how or when he would have had the opportunity to use the duress alarm even if he had thought of it and had attempted to use it. 381 It also seems to me that it is indicative that once he had "J" on the floor that he found he couldn't in fact control him in that situation on his own and considered that he had to turn him over on his stomach to control him and stop the aggressive behaviour. 382 Mr Frias said he had seen that action used by other staff. It was not supported by evidence from other witnesses that such action was ever used or seen. DADHC witnesses considered that this was an unacceptable form of restraint and to their knowledge had not happened. 383 I also make it clear that I too consider it inappropriate to place a resident on the floor on their stomach (unless required for some medical reason). However, having said that I'm not sure what else Mr Frias could have done having embarked on the course of trying to bring "J" to the ground on his own which was doomed to failure. 384 Further it was plainly obvious to the Commission the difference in height and build between Mr Frias and "J". Mr Frias is smaller in height and of slim build. 385 I really wonder whether Mr Frias in the confined space of the bathroom they were in, could even have got away from "J" and for example left the room and closed the door on him. That may not have even been an appropriate course of action for him to take. 386 In any event Mr Frias said he felt confident he could manage the situation however misplaced that judgement turned out to be. He had "J" up from the ground when Vincent Aquino returned with "J's" clothes and they both showered "J". 387 It is quite clear that in the course of the restraint exercise Mr Frias' foot was placed on "J's" back such that the imprint of the sole of his shoe left a red mark which did not show up until the next day. 388 What is not totally clear is what action Mr Frias actually undertook with his foot. Using it to assist rolling "J" over on his stomach whilst he was using his hands/arms to hold "J" by the shoulders and/or using the foot to hold "J" down. 389 DADHC and especially Ms Foster had the view that Mr Frias deliberately and "cruelly kicked "J"". 390 I am unable to make the quantum leap they made to arrive at that conclusion. 391 I cannot see that the mark on "J's" back could possibly have been made by a kick. It was consistent with the impression of a flat sole, not the point of a shoe or part of a shoe arising from a sharp impact type motion that would be apparent, in my view, if there had been a kick. 392 More significantly however is the fact that as previously indicated there is absolutely no evidence to suggest that Mr Frias had been anything other than an entirely satisfactory and caring employee with an unblemished record. There was nothing to suggest he was spiteful or had a temper or had even committed any remotely untoward action towards a resident in the past. I see no evidence or reason that he would depart from that past behaviour and suddenly deliberately kick "J". 393 I frankly have a concern that all the way through the proceedings DADHC sought to characterise what took place as a "serious assault" and repeatedly referred to a "serious injury" resulting. 394 At the same time DADHC submitted that the evidence of Mr Frias' witnesses was "exaggerated" or "distorted" in his favour. A more extreme example of the pot calling the kettle black I cannot recall. 395 Mr Frias did not report the incident of restraint to anyone or fill out the relevant forms. He said this was because it involves some 4 forms and staff don't like filling in forms and he wanted to fit in with the staff. There was also some issue raised about having 24 hours in which to complete a report. 396 Clearly this was wrong. He should have reported the restraint in the appropriate way. Not reporting the matter would have warranted counselling and disciplinary action such as a warning, which may indeed have been a first and final warning. 397 I cannot see however, as DADHC does, that the non-reporting was a deliberate attempt to cover up his actions. The restraint incident itself on the whole was not such a major issue that I would have thought any employee would have believed they had to conceal it. What would be the reason? Mr Frias was not aware that any injury had been sustained by "J". The incident was over in a couple of minutes. "J" was settled; he was showered and there were no further incidents with "J" on the remainder of the shift. 398 Again I make the point that relevant to my consideration on this issue is his previous unblemished record. I have also taken into account how he presented as a witness. 399 True it is that Mr Frias had been involved in an earlier incident of restraining involving "J" and made a report However, he pointed out that that was because there was another staff member involved and I gather his role was in essentially supplementing the report with the other staff member having the primary responsibility of reporting the incident. 400 It is also incorrect for DADHC to say that "J" has not been injured previously in an incident of restraint. 401 Of the 31 Accident/Incident Reports that comprise Exhibit 16 covering the 12 months from June 2002 to July 2003 there are two reports concerning restraint of "J" resulting in injury - a graze on the elbow and hurting his head. Both injuries I note required first aid treatment. 402 I also have to say that I cannot agree with DADHC's characterisation of "J's" injury as a "serious injury". There were clear red marks but no bruising and no evidence of the usual discoloration evident with bruising showing up subsequently. He was seen by a doctor but no medical treatment was required. Mr Taylor's analogy is rejected. 403 The majority of those Accident/Incident Reports also concern incidents where "J" has acted aggressively towards other residents or staff resulting in scratches, bruising etc. 404 There are also references in a number of those reports of "J" either sustaining marks on himself in the course of an attack on other staff/Residents or reports of staff noticing unexplained marks/bruising on "J" (mainly face). This would seem to confirm that "J" did have sensitive skin and was easily marked. There were also other minor red marks on his back that were noticeable in Exhibit 14. 405 I am also concerned that the issue of Mr Frias' training and knowledge was not checked out before he was terminated. Those issues should have been explored in the investigation process. 406 Assumptions have been made about Mr Frias' training and knowledge that in my view cannot be sustained. 407 He certainly had gained practical experience in managing residents with challenging behaviour and developed a level of confidence I have no doubt was communicated to senior staff in his manner and the way he performed his duties. 408 However, having carefully considered all the evidence and the circumstances of the matter I have extreme concerns at the level of training provided to casual employees at Metro West particularly in relation to managing challenging behaviour. 409 If DADHC have determined that it is appropriate for permanent full time staff to receive a three day training course in managing challenging behaviour then that is the standard of training that should be given to all staff. The residents of Metro West have every right to be cared for by properly and fully trained staff - whether they are permanent or casual. 410 It is apparent from the evidence of Mr Frias and Mr Hoferek (and there was nothing to suggest they were casuals that were in some sort of unusual category) had been ongoing casuals working systematically and regularly over an extended period of time. 411 What is not apparent from the evidence is whether such casuals form part of the normal staff: resident ratio or are additional to permanent staff. For this reason I am not prepared to make any finding as to whether the staff : resident ratio on 14 June 2004 was adequate. There is simply insufficient evidence to form a view on that issue. 412 Returning to the training issue, I also consider that the induction process for casuals is inadequate. It is not sufficient that casuals, following what is clearly a very brief familiarisation induction, essentially self-induct themselves on sections 5-9 of the Quick Induction Checklist (Exhibit 4) and return the signed form in six weeks. 413 This seems to me an entirely unsatisfactory way to train casual staff and again highlights the different standards applied to casuals when compared to full time staff. 414 Further I note that the full time staff induction is a longer process and involves a 4 page document on the oral evidence. (The form itself was not tendered.) 415 Arising from the responses to Ms Foster's email query concerning casuals' training (Exhibit 21) there is a further concern that it was expressed that it was not compulsory for casuals to read the policies and procedures. They were simply made aware of them and their location in their first induction. 416 It should be compulsory for casuals to be familiar with such documentation either through having copies provided individually to them or having an appropriate specific training session on such policies and procedures. Sufficient time also needs to be allocated to casuals for that purpose. 417 I again emphasise that there should be no difference in the standard, quality or duration of any training between on-going casuals and permanent staff. To have two such standards compromises the care being delivered to residents at Metro West. 418 Mr Frias had undoubted practical experience and had gained practical skills from his hand-on experience. However, practical experience must be underpinned by appropriate formal training. 419 Having very carefully considered all the evidence both oral and documentary over a considerable period of time I have come to the following views. 420 On the balance of probabilities I consider Mr Frias did not deliberately assault "J". He also did not deliberately kick or stomp on "J". His restraining action, whilst displaying over-confidence and poor judgement, was carried out in self-defence. Further, Mr Frias was entitled to be concerned for his personal safety and health (given the contaminated state of "J's" hands). 421 Mr Frias did not have the opportunity in the circumstances to use his duress alarm before Vincent Aquino returned. 422 "J" did not suffer a serious injury. However having said that quite clearly residents of Metro West are entitled to be treated with respect and cared for to the highest standard and not be subjected to physical restraint except where their safety or staff/resident safety is concerned. 423 No disciplinary action should have attached to Mr Frias' failure to report his own injury or the injury to "J" of which he was not aware. 424 Whilst the failure to initially report or mention the restraint of "J" was serious and a breach of policy and procedures given all the circumstances of this matter, termination was not warranted. 425 Mr Frias had not received sufficient and appropriate training to carry out the duties of his position. 426 There was essential and relevant information about "J" that should have been brought to his attention. It should not have simply been left to Mr Frias to seek out that information. 427 I am also concerned at the role Vincent Aquino played and consider he should not have left Mr Frias alone with "J". 428 Issues of Mr Frias' training should have been checked out as part of the investigative process. To the extent that that issue wasn't explored more fully and more directly with Mr Frias, the investigative process was flawed. 429 Mr Frias was not therefore afforded complete procedural fairness in the process of his termination. 430 It is well accepted that the standard to be applied by the Commission in consideration of the evidence in s.84 applications is the civil standard of the balance of probabilities as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. 431 That has been confirmed in numerous decisions of this Commission and was extensively canvassed by the Full Bench in Four Sons Pty Limited v Sakchai Limsiripothong 98 IR 1. I have supplied those same considerations in this matter. 432 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court judgement in Byrne & Anor v Australia Airlines (1995) 61 IR32 at p72. It is appropriate in this matter to repeat that passage: "The distinction between procedure and substance is elusive. This is so, even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce in into cl.11(a) That is not to say that the steps taken, or not taken before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under (cl.11a) is whether, in all the circumstances the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second".

Antonakopoulos v State Bank

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (21)