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[2005] FCA 46
Federal Court of Australia
2005-02-04
Merkel J
Original judgment source is linked above.
The applicant's other claims 48 In addition to her claims under the Act, the applicant made a number of general claims based on Victorian legislation and the common law. At the hearing the applicant only gave specific oral evidence about two of the claims, being her claims of assault and defamation. I have not found it necessary to make a decision about the adequacy of the applicant's additional claims or whether they fall within the associated or accrued jurisdiction of the Court because I am satisfied that the claims are without merit. 49 The applicant claimed that she was assaulted by the police when they removed her from Moorfields, and that Moorfields' management should be held responsible for that assault. I am satisfied that the actions of the police were taken on their own initiative in the exercise of their powers as police officers. There is no basis whatsoever for concluding that the police acted under the direction of, or as agents for, Moorfields. 50 The applicant's claims regarding defamation were never clearly articulated. I am not satisfied that, as the applicant claims, Mrs Riley told the police that the applicant was paranoid or that she made any other potentially defamatory remarks about the applicant. Rather, it is probable that Mrs Riley made observations to the police about the applicant's distress and conduct on that day, and I have no reason to believe that those observations were other than fair and accurate, and were justifiable in all the circumstances. 51 The applicant also claims that defamatory remarks were made about her in the context of a subsequent Nurses Board hearing, which concerned the suspension of her registration. Specifically, the applicant provided the Court with a copy of an article about the hearing written by Kate Jones and published in the Herald Sun newspaper on September 28 2004. The article is a report of the proceeding before the Nurses Board, and relevantly states: "A volatile and aggressive nurse was forcibly removed by police from a Box Hill nursing home, a board heard yesterday. Stanislawa (Stella) Bahonko faces five charges of unprofessional conduct over allegations she mishandled medication and refused to take directions while working at Moorfields and Bodalla aged care homes. Ms Bahonko was ejected from Moorfields in Box Hill after she refused to return the keys to a medicine room and leave, the Nurses Board of Victoria was told. When police arrived at the nursing home, Ms Bahonko began throwing medicine across the room and accusing management of killing elderly residents, former boss Patricia Riley told the board. The board heard that Ms Bahonko was eventually handcuffed and escorted from the home. Three co-workers and a patient had previously complained about her aggressive and intimidating manner, the board heard. But in documents sent to the board, Ms Bahonko claimed she was harassed, victimised and set up by her former workmates. The board suspended her registration in May, while it investigated the complaints. Two months later, she lost an appeal against her suspension. The Nurses Board has reserved its decision." 52 Statements made in the course of the Nurses Board hearing are privileged under the Nurses Act 1993 (Vic) ("the Nurses Act") and the Evidence Act 1958 (Vic) ("the Evidence Act"). Section 51 of the Nurses Act states: "Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to a panel in the conduct of a formal hearing as if it were a Board or the Chairman of a Board appointed by the Governor in Council." 53 Section 21A(1) of the Evidence Act states that witnesses in such hearings: "shall have and shall be deemed always to have had the same privileges and immunities in respect of any act matter or thing done in or in relation to or arising in or out of the inquiry or any report of the inquiry as they would have or have had if the act matter or thing was done in or in relation to or arose in or out of an action in the Supreme Court of Victoria or a report of any such action." 54 Statements made in the course of court proceedings are absolutely privileged. The principle, long ago enunciated by Lord Mansfield (in R v Skinner (1772) Lofft 54 at 56), is that: "neither party, witness, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office" and has been approved by the High Court of Australia (see Cabassi v Vila (1940) 64 CLR 130 at 140 and Jamieson v The Queen (1993) 177 CLR 574). 55 The effect of s 21A(1) of the Evidence Act is that any statement made about the applicant by any officer of either respondent in the course of giving evidence before the Nurses Board cannot be made the subject of a suit, and therefore is not justiciable as being defamatory. Further, under s 51 of the Nurses Act and s 14 of the Evidence Act, the Nurses Board has the power to summon witnesses. Section 30 of the Evidence Act states that aside from charges of perjury, statements made to any person in answer to a question before a board with the power to summon witnesses shall not "be admissible in evidence in any proceedings civil or criminal against him, nor be made the ground of any prosecution action or suit against him". 56 The other claims of the applicant were not properly or adequately articulated. However, I am not satisfied that any of her other allegations of unlawful conduct on the part of either respondent have been established.
Conclusion 57 The applicant may, or may not, have had some basis for claiming that the terminations of her employment by the respondents were harsh, unjust or unreasonable. However, she elected to pursue her claims by reference to s 170CK(2) of the Act, rather than proceeding to arbitration before the IRC as provided for in s 170CFA(3)(c). 58 I have concluded that the applicant's claims under s 170CK(2) of the Act must fail as each respondent has discharged the onus imposed by s 170CQ and has established that their respective terminations of the applicant's employment were for a reason or reasons that do not include a reason set out in s 170CK(2). Accordingly, the applicant's application for an order under s 170CR of the Act in relation to the respondents must be dismissed. I am also satisfied that there is no proper basis for any of the other claims made by the applicant in her application. As a result the applicant's application is to be dismissed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate: Dated: 4 February 2005 Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Tim Donaghey
Solicitor for the Respondents: Monahan & Rowell
Date of Hearing: 6, 7 December 2004
Further written submissions of the Applicant received: 23 December 2004, 7 January 2005, 14 January 2005
Further written submissions of the Respondents received 15 December 2004
Date of Judgment: 4 February 2005
Bahonko
Moorfields Community
Termination of the applicant's employment by Moorfields 16 The applicant's and Moorfields' versions of the relevant events leading up to the termination of the applicant's employment differed. The Chief Executive Officer of Moorfields, Ann Linda Turnbull, and the Director of Nursing at Moorfields, Patricia Lesley Riley, both submitted witness statements and gave evidence at the hearing. I found them to be reliable and credible witnesses and I generally accept their evidence regarding the events leading up to and culminating in the termination of the applicant's employment by Moorfields. 17 To the extent that the applicant's evidence was inconsistent with the evidence of Mrs Turnbull or Mrs Riley I prefer their evidence. It is clear that the applicant regards herself as having been victimised by the respondents and that she became so emotionally involved in, and personally aggrieved by, the events leading to the terminations of her employment that she has reconstructed those events in her mind in an endeavour somehow to fit them into s 170CK(2) of the Act. She may have had some basis for claiming that she was harshly treated in all the circumstances by one or other of the respondents, but she elected not to pursue her entitlements to claim that each termination was harsh, unjust or unreasonable. Rather, she wanted her claims determined by the Court irrespective of whether or not the circumstances fell within the very precise grounds set out in s 170CK(2). A good example of the applicant's approach to her case is her belated claim that her religion ("I am of Catholic faith") and her religious beliefs were also a reason for the termination of her employment by both of the respondents. The claim was of a general nature, and was alleged to have been based on the applicant's beliefs, which she articulated as follows: "I believe in the sanctity of life. I believe that euthanasia by omission is wrong. I believe that refusing access to treatment because the old age or past medical history is wrong. I believe that neglecting residents is wrong too … I believe that withholding food and fluid is wrong too." 18 There was no objective basis for the claim, yet she chose to pursue it. The applicant's conduct in that regard confirms my view that she felt victimised and was searching for reasons to support her claims in the Court irrespective of whether there was any proper evidentiary basis for the claims. 19 Mrs Riley's evidence detailed a history of complaints regarding the applicant's interactions with some of her co-workers, as well as with some of her patients and their families. On 4 September 2003 Mrs Riley wrote a letter to the applicant in which she outlined recent complaints against her, and invited her to meet with members of Moorfields' management to discuss the complaints. The meeting was held on 18 September 2003. By a letter dated 19 September 2003 Mrs Riley confirmed that the applicant's performance in the area of communication and interaction with others would be monitored, and a further appointment would be arranged if more complaints were received. 20 On 18 December 2003 Mrs Riley wrote to the applicant regarding two further complaints by staff members about the applicant's hostile and aggressive manner of communicating with them. 21 On 7 January 2004 Mrs Riley met with the applicant and the applicant's supervisor, Leanne Tracey Zappulla, to discuss the further complaints about the applicant's behaviour. On 8 January 2004, Mrs Riley wrote to the applicant informing her that she was formally issuing a written warning pursuant to cl 37.9 of the Moorfields Certified Agreement 2002, which states that: "Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning must be verbal and will be recorded on the employee's personal file". 22 On 28 April 2004 Mrs Riley received a complaint from a resident regarding an incident involving her and the applicant. Mrs Riley attempted to schedule meetings with the applicant to discuss the resident's complaint, but the applicant refused to attend. 23 In the period leading up to her termination, the applicant made a number of complaints to Moorfields' management regarding workplace issues that were of concern to her. Some of the applicant's concerns were addressed by Moorfields in writing. The complaints included the following communications: · On 13 December 2003 the applicant wrote to Mrs Riley about an incident that morning where another staff member wanted the applicant to draw insulin that would be used by patients on the following day. The applicant had refused to sign drug charts for the next day because she felt it was not a safe practice. On 18 December 2003 Mrs Riley wrote to the applicant and stated that she would "take [the applicant's] suggestions for a clearer procedure for the drawing up and administration of the insulin to the next Quality Committee meeting, and recommend consideration for changes to the current procedure." In her letter Mrs Riley also acknowledged the complaint made by the applicant against the other staff member involved, and informed the applicant that she had received a written complaint about the same incident from that staff member "stating similar issues of hostile communication and interaction." · On 30 January 2004, the applicant wrote to the unit manager, Ms Zappulla, requesting that the time of morphine administration be changed to accord with a resident's need to have eaten food before she takes the morphine. · On 22 January 2004 the applicant wrote to Mrs Riley voicing her concern that one of the other nurses was referring to a resident of Polish origin as "Bobski", which was a derivation of his first name and his surname. The applicant stated that: "In Polish culture this is…very offensive and disrespectful of a person to be called names especially officially by health professionals". · On 27 February 2004 the applicant wrote to Mrs Riley about a staff member who was running education sessions in the handover room at the time when handover between the morning and afternoon shifts took place. The applicant wrote that: "This is a gross disruption to our pm shift, specifically which has not been discussed with me. This is a harassment and I will treat it as such." On 15 March 2004 Mrs Riley wrote to the applicant stating that the applicant had not been able to discuss the timing of the session because the applicant does not attend staff meetings or clinical care committee meetings, but that she did not consider the sessions to be a disruption and she failed to "understand how [the applicant] would consider the situation as harassment." 24 The applicant also filed a number of written incident reports regarding missing or mishandled medications, inappropriately disposed of hypodermic needles, a change of medication dose that was not initialled or signed by a doctor, and a resident whom she felt was not being adequately medicated. 25 On 6 May 2004 Mrs Riley spoke with Mrs Turnbull, and they decided to advise the applicant that she should leave the workplace on full pay until they were able to discuss the complaints against her. That afternoon Mrs Riley and another staff member, Belinda Wood approached the applicant to advise her of this. At that time the applicant was in the treatment room preparing a trolley to take with her on the afternoon medication rounds. 26 When she was first approached by Mrs Riley, the applicant agreed to leave, and declined an offer of counselling under the Employee Assistance Program. When Mrs Riley asked her to hand over the keys to the drug trolley the applicant refused, stating that she was in the middle of preparing medication. 27 Moorfields uses a medication management system involving "Webster-paks". Webster-paks have a plastic cover that snaps over a sheet of blister-packed pills, which is prepared by a pharmacy. There is a row for each day of the week, and four columns for different medication to be taken at various times of the day. Medicated residents at Moorfields would have one or more Webster-paks prepared for them by a pharmacy for each week's medication. 28 When Mrs Riley inspected the medication trolley she observed that medication had been removed from the residents' Webster-paks, and had been placed in medicine cups, which the applicant had put into the drawers of the trolley. Mrs Riley gave evidence that this was not a safe practice, and breached Moorfields' protocols, which she stated required that a resident's medication should only be prepared and administered at the bedside of that resident. 29 The applicant continued to refuse to hand over the keys to the medication trolley, and went to the nurses' office to make phone calls to WorkSafe, Job Watch, and to legal advisers. Meanwhile, Mrs Riley asked Ms Wood to contact Mrs Turnbull. On Mrs Turnbull's advice, Mrs Riley proceeded to call the police to have the applicant removed from the premises. 30 The police arrived at Moorfields at approximately 4.15 pm. After speaking with Mrs Riley the police approached the applicant and asked her to hand over the keys and allow them to escort her from the premises. The applicant insisted that she be allowed to complete her medication preparation. When the police officers again asked her to leave, the applicant began disposing of the medication that she had already removed from the Webster-paks, some of which had been pre-mixed with pureed fruit, by throwing the cups of pills and pureed fruit into the sink. The applicant stated that she did this because she was concerned about not being able to complete a proper handover of the residents' medication as she would normally have done at the end of a shift. 31 When the applicant refused the request to leave, she was placed in handcuffs and physically removed by the police from Moorfields' premises. The applicant was taken to Box Hill Hospital where she was treated and assessed by a doctor and a psychiatric liaison nurse, and then released. 32 Upon closer inspection of the medication trolley Mrs Riley discovered that, in addition to removing most of the 5.00 pm medications from the Webster-paks, the applicant had removed some medications that were meant to be administered separately at 8.00 pm. When she was informed of this, Mrs Turnbull decided that the applicant had placed residents at Moorfields at risk, and therefore the applicant's employment should be terminated. The applicant did not dispute that she had unpacked medication from the Webster-paks, including some pills that were in the 8.00 pm columns, however she maintained that she had done so in a manner that would ensure that each resident received the correct medication. The applicant, however, denied that she had breached any protocol or that her preparation of the medication was unsafe. 33 The applicant received a letter dated 10 May 2004 from Mrs Turnbull stating that the applicant's services were terminated for misconduct effective immediately, and that she would be paid all of her entitlements, including time in lieu of notice. 34 The applicant claimed that her employment was terminated by Moorfields because she had made complaints to the Aged Care Complaint Agency, Job Watch and WorkCover. In her final written submissions the applicant claimed to have made complaints to many authorities, including the Equal Opportunity Commission, the Human Rights and Equal Opportunity Commission, the Ombudsman, and another body which she referred to as the PEU (possibly the Victoria Police Ethical Standards Department). 35 Claims made to WorkCover are not relevant for the purposes of s 170CK(2)(e). In Jennings v Salvation Army (2003) 128 IR 366 Marshall J stated at [35] that: "the making of a claim under the Accident Compensation Act does not fit within para (e). Such a claim is not the filing of a complaint against an employer involving alleged violation of laws or regulations. Also, it is not the filing of a complaint against an employer involving recourse to competent administrative authorities. It involves nothing more than making a claim for compensation under a no-fault compensation scheme." See also Zhang v The Royal Australian Chemical Institute Inc. [2004] FCA 1392 per Finkelstein J at [15]. In any event I am satisfied that the applicant's WorkCover claims were not a reason for the termination of the applicant's employment by either of the respondents. 36 The applicant provided some evidence of the existence or details of her complaints to other agencies. The material that she provided to the Court suggests that a number of the complaints which she referred to were made after the termination of her employment and were related to the conduct of the police on 6 May 2004 or to conduct in relation to a subsequent hearing of the Nurses Board of Victoria (" the Nurses Board"). 37 Although Moorfields' case was that the applicant's breach of protocol relating to medication preparation was the reason for the applicant's termination, Mrs Turnbull agreed that the medication preparation issue was "the straw that broke the camel's back". The evidence establishes that by 6 May 2004 Mrs Turnbull and Mrs Riley had come to regard the applicant as a difficult employee who had been the subject of a number of complaints, and they were content to utilise the breach of the medication protocol, which in other circumstances might have warranted something less than summary termination, as the reason for the termination of the applicant's employment. 38 I am satisfied that Moorfields' reasons for the termination were premised upon its view that the applicant was a difficult employee who had breached its medication protocol. I am satisfied that those reasons relate to the personality of the applicant and the medication incident, and do not include any of the reasons set out in s 170CK(2). I would add that I am also satisfied that Moorfields' evidence established that any complaints made by the applicant to third parties were not a reason for her termination. It is unnecessary for me to determine Moorfields' medication protocol at the relevant date, and whether that protocol was breached by the applicant, because I am satisfied that Mrs Turnbull and Mrs Riley believed that the applicant had breached the protocol, had reasonable grounds for that belief and, on that basis, decided to terminate the applicant's employment.
(1940) 64 CLR 130
(1993) 177 CLR 574
(2003) 128 IR 366
(2000) 108 IR 244
(1999) 91 FCR 463
(1932) 48 CLR 487