JUDGMENT OF: His Honour Deputy President Judge Calligeros

Claim for a mental injury - The applicant had worked for the employer for 9 years - In 2023, after a disciplinary process conducted by the employer, the applicant received a first and final warning in relation to alleged failures to comply with the clinical care plan (CCP) of a resident - In 2024, after another disciplinary process, the applicant was found to have breached client care standards - The applicant ceased work and lodged a claim for compensation on or about 12 March 2024 - The employer terminated the applicant's employment on or about 12 April 2024 - HELD: 1. The disciplinary process that resulted in a first and final warning was unreasonable and was conducted in an unreasonable manner because the applicant was not given access to CCTV footage and details of a CCP that the allegations were based upon - The applicant was not able to meaningfully respond to the complaints raised against her - 2. A first and final warning was not warranted in any case having regard to the nature of the breaches alleged and the applicant's 9 years of prior service without any warning or disciplinary issue - 3. The 2024 disciplinary process and the decision to terminate the applicant's employment were not reasonable and were not conducted in a reasonable manner because the applicant was again refused access to CCTV footage which was critical to her being able to respond to the allegations properly - The reason for not providing the footage was specious - 4. The other key complaints raised against the applicant in the 2024 disciplinary process were either not reasonable or were raised and prosecuted in an unreasonable manner - 5. The determination rejecting the applicants claim is set aside and she is entitled to weekly payments, medical expenses and costs.

Coutts v Close [2014] FCA 19

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381

David Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153

1. This decision concerns a claim for income support and medical expenses made by Sonam Banskota for an adjustment disorder with anxiety (the injury) that she sustained whilst employed as a personal care worker by Eldercare Inc (Eldercare). In the claim form, Ms Banskota alleges that the injury arose from being bullied and harassed in her employment.
2. It is not disputed that Ms Banskota sustained the injury. Eldercare contends that the injury arose from reasonable action or reasonable administrative action on its part, not bullying or harassment.

1. Ms Banskota is 36 years of age. She was born in Nepal and migrated to Sydney in 2009.Ms Banskota completed her Certificate III in Aged Care and Disability and commenced working in an aged care facility in 2009. Ms Banskota worked as a cleaner after moving to Adelaide and in May 2012 she commenced employment with Eldercare.
2. Ms Banskota was initially employed by Eldercare on a casual basis but was later offered a permanent part-time role. In December 2012 Ms Banskota moved to a different Eldercare site, Acacia Court, which she left in December 2013 but returned to in September 2014. At Acacia Court, Ms Banskota usually worked in the High Care Ward and the South 1 Ward, the latter being solely for residents with dementia. After the High Care Ward was closed, Ms Banskota was usually rostered to work in the South 1 Ward but sometimes worked in a low care ward.
3. In November 2022, Amanjot Kaur commenced as site manager of Acacia Court. Ms Kaur can see part of the South 1 Ward from her office.
4. In her evidence affidavit, Ms Banskota deposed that she "had never received any complaints or disciplinary allegations, or had negative experiences with other workers on site" at Acacia Court and the aged care facility she had worked at in Sydney.[1]
5. On 9 June 2023, Ms Kaur asked Ms Banskota to attend a disciplinary meeting and gave her a disciplinary allegation letter which alleged that Ms Banskota did not comply with the clinical care plan (CCP) of a resident, TB, on 24 May 2023. The allegation was that Ms Banskota did not change TB's incontinence aid, reposition him or assist him with regular walks within scheduled timeframes. Two of Ms Banskota's colleagues who worked on the same shift received similar letters and resigned their employment shortly afterwards.
6. Ms Banskota stated that she was shocked when she received the first letter. She acknowledged that she owed a duty of care to each resident but did not believe disciplinary action would be taken against her for failing to meet part of a resident's CCP given that the requirements in CCPs are extensive and several employees look after residents as a team. In cross-examination, Ms Banskota stated that she took the disciplinary allegation letter seriously and did not seek legal advice after receiving it.
7. On 16 June 2023, Ms Banskota attended the disciplinary meeting with Ms Kaur and Catherine Ogden, a human resources officer. During the meeting, Ms Banskota asked to view the CCTV footage that the complaint made against has was based upon. Her request was refused for 'privacy concerns'. Ms Banskota had to rely on her recollection of a shift that she had worked three weeks earlier to address the allegations raised with her.
8. Ms Banskota received a letter on 27 June 2023 which advised that the allegations made against her had been substantiated and gave her a first and final warning. Ms Banskota was upset and described feeling "a sense of deep unfairness and injustice about what had happened"[2] because she was not allowed to review CCTV footage and did not believe the complaints raised were that serious.
9. Ms Banskota described feeling targeted by Ms Kaur after she received the first and final warning letter. She stated that she was criticised in the presence of others and being spoken to dismissively and rudely by Ms Kaur. She was asked why she had taken sick leave and criticised for serving dinner to a resident 10 minutes earlier than scheduled at the resident's request. She was told by a colleague that Ms Kaur was reviewing CCTV footage of the shifts that she worked. The colleague told Ms Banskota that she believed Ms Kaur was doing so to identify mistakes.
10. On 15 February 2024, Ms Banskota received a further disciplinary letter from Ms Kaur (the first 2024 letter). The 2024 letter alleged that on 3 February 2024, Ms Banskota had not adhered to the CCPs of four residents and walked a resident who was naked below the waist into a common area.
11. Ms Banskota was extremely upset after receiving the first 2024 letter. While she could not specifically recall the events surrounding the first alleged incident, she denied the second alleged incident, that she had walked a resident who was naked below the waist into a common area. Ms Banskota felt stressed and anxious, consulted her general practitioner and took a few days off work.
12. On 28 February 2024, Ms Kaur gave another letter to Ms Banskota (the second 2024 letter) that withdrew the second allegation made in the first 2024 letter but added a fresh complaint about an incident alleged to have occurred on 17 February 2024. Ms Banskota concluded that Ms Kaur was reviewing CCTV footage with a view to criticising her work performance.
13. On 29 February 2024, Ms Banskota and her union representative, Jennifer Aitken, attended a meeting with Ms Kaur and Ms Ogden by video link at which the CCTV footage of the incidents, other than the second incident, was played. Ms Banskota described feeling stressed at the meeting. She did not consider that the footage and parts of the CCPs supported all the allegations that had been made against her.
14. A second meeting was held on 4 March 2024 at which Ms Banskota, Ms Kaur and Ms Ogden were present, along with Ms Aitken by video link. Ms Banskota described Ms Kaur becoming "noticeably frustrated and annoyed" and raising her voice and talking over the top of Ms Banskota.[3] Ms Banskota described feeling upset and depressed following this meeting.
15. On 8 March 2024, Ms Banskota saw a psychologist, Aleks Kozlow. Around the same date, Ms Banskota sent an email to Eldercare with notes she had made defending herself in relation to the alleged incidents with a statutory declaration in which she alleged Ms Kaur had harassed her and discriminated against her, including on the basis of her race. Ms Banskota defended her position in relation to each allegation and encouraged management to review the CCTV footage.
16. Ms Banskota attended a brief performance appraisal with Ms Kaur in an open lounge area. She stated that she was not given a copy of the appraisal report but could see on a software application used by Eldercare that her result was 'average'. Ms Banskota denied having received a copy of the report at the time and denies the accuracy of it.
17. Ms Kaur raised issues in relation to uniform, unplanned leave and recording non-compliance with CCPs. Ms Banskota deposed that she did not understand that Eldercare's uniform policy excluded her from wearing jeggings, and others wore them. In relation to unplanned leave, Ms Banskota stated that the only times she had a pattern of unplanned leave was when she had an issue with her eye and made medical appointments when her treating medical adviser was available to see her and when she took leave after contracting the COVID-19 virus. A medical certificate was provided for both sets of absences. In terms of CCP's, if a task or activity cannot be performed, the non-completion of the task should be recorded. Ms Banskota stated that instances of non-completion of tasks are usually recorded by the person working the 'long shift' and with one alleged instance of non-recording, a colleague had told her that he would record the non-completion of the task.

1. In cross-examination, Ms Banskota acknowledged that she understood that CCPs had to be adhered to by all members of a team.
2. Ms Banskota stated that two staff members were required to walk, reposition and change TB's incontinence aid because he was a 'full-assist resident'.[4] While it was important to reposition TB, he had been repositioned at 2:45pm, just prior to her shift commencing at 3 pm and he refused to be repositioned during the shift. Ms Banskota also agreed that walking TB was important but could not recall why that did not occur. TB's teeth were not brushed before bed because he would not permit it.
3. Ms Banskota confirmed that she felt unfairly treated and targeted by Ms Kaur after receiving the first and final warning letter. She did not report how she felt to Eldercare at that time and first talked to her medical practitioner about the issue after receiving the 2024 letters. Even prior to receiving the 2024 letters, Ms Banskota felt anxious and scared, had trouble sleeping and did not want to talk with members of her family.
4. Ms Banskota stated that she felt targeted by Ms Kaur because of the way Ms Kaur talked to her and criticised her attire. When a resident broke a computer, Ms Kaur criticised Ms Banskota for not reporting the incident to the enrolled nurse (EN) and for ignoring the resident. Ms Banskota stated that she did not report the incident because the lifestyle advisor was going to report it to the EN and she was with another resident at the time.
5. Ms Banskota understood that the first 2024 letter was serious because she had already received a first and final warning.
6. In relation to the allegation that Ms Banskota did not assist a female resident to eat her dinner in accordance with a CCP, Ms Banskota advised that another personal care worker had given the resident the dinner and they should have assisted the resident to eat her dinner.
7. In relation to the allegation that a male resident known to become aggressive at times did not receive behaviour intervention in accordance with his CCP, Ms Banskota advised that he was not taken for a walk because the RN had said that if he went outside, he would not return inside.
8. Ms Banskota agreed that she considered the allegations in the first 2024 letter were serious and sought union advice after receiving the second 2024 letter. She confirmed being upset after receiving the 2024 letters, that it weighed heavily on her mind and that she felt concerned and anxious about what may occur at the impending meeting and in the future.
9. Ms Banskota acknowledged that she was given more information about the allegations at the 4 March 2024 meeting and she had an opportunity to provide information and ask questions about the allegations to understand them. Following the meeting, Ms Banskota sought further medical assistance in relation to her mental health. She told her general practitioner that she was very stressed and anxious and had been harassed by Ms Kaur. Ms Banskota decided to make a claim for compensation after the meeting.
10. Ms Banskota did not file any formal complaint about her allegation that Ms Kaur had racially discriminated against her.
11. At a disciplinary outcome meeting on 12 April 2024 Ms Banskota was advised that the allegations against her had been substantiated and her employment would be terminated effective from that date.

1. As an Eldercare Site Operations Manager (SOM), Amanjot Kaur has responsibility for overall management of the Acacia Court site.
2. Ms Kaur deposed that one of Eldercare's values is accountability and that it has a strong commitment to ongoing performance management.
3. In November 2023 a performance appraisal of Ms Banskota highlighted concerns about her "failure to comply with leave procedures, residents' care plans, documentation, communication from management, and mentoring new employees".[5] That followed Ms Banskota receiving a first and final warning earlier in 2023.
4. Ms Kaur advised that Eldercare's uniform policy states that employees must wear work pants, not leggings. She also said that a copy of the uniform policy is provided to staff when they commence employment with Eldercare and that "Ms Banskota was reminded of the Uniform Policy on a number of occasions".[6]
5. After identifying a pattern of unplanned leave on certain days, Ms Kaur made enquiries with Ms Banskota and advised that she did not take issue with the leave once a medical certificate was provided.
6. In relation to incident reporting, Ms Kaur highlighted the importance of timely documentation, described mandatory reporting incidents and stated that she can report something of concern directly to human resources. Mandatory reporting incidents must be reported to the Aged Care Quality and Safety Commission (ACQSC) as well as to Ms Kaur as the SOM. Ms Kaur described the reporting requirements in great detail, most of which is not relevant for present purposes. Reports must be made in line with the Serious Incident Reporting System (SIRS) as per Aged Care Commission guidelines. Priority 1 matters are usually those where a resident is injured and must be reported within 24 hours. Priority 2 matters are generally instances of failure to adhere to a care requirement which has not resulted in injury. Priority 2 matters are reported to the ACQSC by the Eldercare Head Office Compliance Team.
7. Ms Kaur explained that in addition to the requirements of the ACQSC, Eldercare has KPIs that "allow [it] to understand its performance compared to other providers".[7] Ms Kaur provides detail about CCPs in her affidavit. The Clinical Care and Documentation Procedure (CCDP) is also explained.
8. In terms of procedural requirements relevant to this case, Ms Kaur deposed that the shift planning report provided to staff each day describes the majority of the tasks that staff are to perform. In cross examination Ms Kaur agreed that statement was not accurate. She also agreed that it was not correct to say that staff were required to make a note of any activities that residents are to undertake that are described on the computer. The computer record is different to the shift planning report that staff carry with them. Ms Kaur agreed that staff are not required to make a note of activities in their copy of the shift planning report.

1. Ms Kaur deposed that TB's CCP required him to be moved from one chair to another. Repositioning him in the same chair was said to be insufficient. If a move to another chair did not occur, TB could become agitated and wriggle and may fall out of the chair. Ms Kaur deposed that CCTV footage showed TB "appeared to be uncomfortable in his chair".[8] A dentist had recommended that TB use a special toothpaste twice daily to maintain oral hygiene and that was a requirement in his CCP.
2. Ms Kaur deposed that CCTV footage showed that TB was not repositioned during Ms Banskota's shift on 3 February 2024. The same chair was altered to a different position just prior to dinner by another staff member but that "does not qualify as repositioning because he has not gotten up and out of the chair at all".[9] Ms Kaur stated that "it is not really relevant that other staff walked past [TB] or was in the room with him throughout the shift".[10] Ms Kaur deposed that Ms Banskota and the person working with her both failed to do what they should have and were notified and disciplined.
3. Ms Kaur deposed that failing to complete and check off activities had been raised with Ms Banskota "at various other times".[11] In cross-examination she agreed that there was only one other time, in June 2023.

1. Resident IT's CCP indicated that she needed assistance to eat her meals. More accurately, she needed to be encouraged to eat. After encouragement, if IT still refused to eat, it was to be reported to the EN. Ms Kaur deposed that based on her review of the CCTV, Ms Banskota and her partner on the day "did not prioritise assisting [IT] to finish her meal".[12] It was asserted that Ms Banskota and her partner prioritised less important tasks such as tidying the kitchen and begin taking other residents to their rooms to prepare them for bed. IT's dessert bowl was collected at 7.23pm and replaced with a sandwich which remained there until 9.30pm.

1. Resident FA needed full assistance to eat her meals. That requires remaining with the resident until they complete their meal. Ms Kaur deposed that on 3 February 2024 Ms Banskota and her partner took no steps to assist FA to finish her meal. CCTV footage on 17 February 2024 was said by Ms Kaur to show that Ms Banskota did not assist FA "in any substantial way to eat her meal".[13]

1. Resident RP could become anxious and exhibit paranoid behaviours at time. RP's CCP outlined that when he became agitated, his attention was to be "redirected".[14]
2. On 3 February 2024 RP attempted to break through a window on multiple occasions. Ms Kaur's view was that none of the strategies in RP's CCP were implemented by Ms Banskota and her partner.

1. Catherine Ogden is employed by Eldercare as a human resources consultant. Ms Ogden deposed that Eldercare has 1,200 residents at 13 aged care facilities in South Australia. Ms Ogden described the first and final warning Ms Banskota received on 27 June 2023. She deposed the warning was issued because Ms Banskota did not attend on TB "for an incontinence aid change or repositioning, and did not assist the resident with regular walks in accordance with his care plan".[15]
2. Ms Ogden drafted the letter of allegations dated 9 June 2023 and the first and final warning letter dated 23 June 2023.
3. Ms Ogden deposed that she did not believe that Ms Banskota's claim that she was denied access to the relevant CCTV footage was correct. She proceeded to say that in her time with Eldercare she had never seen that happen. While the employee cannot keep the footage for privacy reasons, they are entitled to see it.
4. In February 2024 Ms Kaur consulted Ms Ogden about the incidents that occurred in that month. Ms Ogden watched the CCTV footage with Ms Kaur and alone. She observed that there were three other staff members involved at the relevant time. She drafted a letter dated 15 February 2024. The letter required Ms Banskota to attend a meeting on 20 February 2024 with her and Ms Kaur. Four other staff members also received the letter of allegations.
5. The 20 February 2024 meeting did not take place as Ms Banskota took personal leave at the time. After speaking to other staff members, the second allegation, that MS Banskota walked a resident who was naked below the waist into the lorikeet area, was withdrawn. However, after Ms Kaur identified further alleged breaches, Ms Ogden watched that footage and concluded there was another breach on 17 February 2024 in relation to not assisting FA to eat dinner.
6. On 4 March 2024 Ms Ogden and Ms Kaur met with Ms Banskota and a union representative, Ms Aitken. Ms Ogden deposed that Ms Banskota's responses "showed a lack of insight",[16] and that she "tried to deflect blame to others by saying that the care of the residents was not her responsibility".[17]
7. Based on the matters described by Ms Kaur and herself, Ms Ogden formed the view that Ms Baskota's employment should be terminated for misconduct. A meeting took place on 12 April 2024 at which Ms Banskota accompanied by Ms Aitken was told of the outcome.
8. In cross-examination Ms Ogden acknowledged that contrary to what she deposed, Ms Banskota was not given access to the 3 February 2024 CCTV footage. She did not agree that access should have been given and was then taken to policies and procedures that state that supporting evidence, information and documents, such as the CCP an allegation was based on, must be provided.[18] Later Ms Ogden was taken to para [23] of her affidavit where she stated that if an employee asks to review CCTV, they are given an opportunity to do so.
9. Ms Ogden was also taken to a communication to the ACQSC which stated that meetings had been arranged to give first and final warnings when the meeting was investigate what had occurred and no indication had been given to the employees that a decision to give a first and final warning had already been made.[19] She stated that the communication was not from her and claimed a decision to give a first and final warning had not been made. Counsel then rhetorically asked whether it was a coincidence that Ms Kaur and the person who assisted her in writing this report correctly guessed the outcome of the investigation.
10. In relation to the withdrawn second allegation, a resident had left the ward Ms Banskota was working on without pants on. What was captured on CCTV was Ms Banskota holding the resident and directing her back to her room. Ms Ogden said she became aware of that when another employee who was also being investigated explained it but said that the decision to withdraw the allegation was based on another CCTV camera feed that was not looked at prior to the allegation being made. Ms Ogden was taken to her letter to Ms Banskota which explained the withdrawal of the allegation in this way:[20]

In relation to allegation 2, there was substantive evidence, CCTV footage, that a resident had been transferred into a common area without pants on. However, further investigations found that this would have been difficult for you to prevent given the circumstances. For confidentiality reasons, I cannot disclose why this information was not available to us prior to the allegation letter being issued.

1. It was put to Ms Ogden that explanation for not providing the CCTV footage to Ms Banskota was not truthful. She disagreed. It was put to her that confidentiality was an excuse to not make an embarrassing admission. She disagreed. It was then put that the identity of a person under investigation was confidential and that had been breached in the case of Ms Banskota. Ms Ogden agreed. She was then taken to her email of 18 March 2024 which disclosed Ms Banskota was being interviewed to several recipients including a co-worker. It was put that doing so was to elicit a rejection of Ms Banskota's explanation for the co-worker. She disagreed with that but agreed that was the result that ensued from the email.
2. In commenting that Ms Banskota sought to deflect blame when interviewed, Ms Ogden relied upon her saying that 3 or 4 other staff members were also responsible for the residents in issue. Ms Ogden agreed that was a factual observation and not necessarily a deflection of blame.
3. In relation to the conclusion Ms Ogden drew that Ms Banskota had been dishonest in saying that the EN had told her not to reposition TB, the response from the EN was conveyed through a union representative as the EN was not contactable. The allegation was put to the other two employees involved and Ms Ogden stated that neither "stated in their response that the EN had provided direction to reposition" TB.[21] Ms Ogden did not put the assertion made by Ms Banskota to those employees. She denied that was necessary to do so in order raise the issue fairly.

1. Michael Searle is the general manager of governance, risk and compliance at Eldercare. His affidavit details the legislative requirements in relation to reporting obligations and care standards. Reportable incidents are dealt with by the Serious Incident Response Scheme (SIRS). Priority 1 incidents are to be reported to the ACQSC within 24 hours and Priority 2 incidents within 28 days. Breaches of the relevant code may lead to regulatory notices being sent and in more significant cases, sanctions can be imposed or, in a very serious case, the accreditation of the facility can be revoked.

1. Dr Jules Begg has provided two medical reports to Ms Banskota's solicitors. In his first report he considered that negative interactions with Ms Kaur led to the development of anxiety. By mid-2023, she was affected when at home after work and she had anticipatory anxiety prior to attending work. The diagnosis was adjustment disorder with anxious distress. More recently, depressive features manifested also. Dr Begg observed that anxiety undermines a person's self-confidence, and the best way to deal with that was to return to work, but that was anxiety inducing.
2. Dr Begg's second report comments upon Ms Banskota's treatment, which he did not consider had been ideal. He considered that Ms Banskota had an aversion to work because any mistake made in the workplace would lead to her employment being terminated. That was a significant barrier to her recovery. As at June 2025 he considered there was no capacity to return to work as doing so would overwhelm her capacity to manage her anxiety and would lead to an escalation of her depressive symptoms.

1. Dr Moffatt saw Ms Banskota at the request of the solicitors for Eldercare. The diagnosis made was adjustment disorder with anxiety. The cause was said to be employment and specifically the managerial action of issuing formal allegations in February 2024. While the 2023 disciplinary process commenced mild symptoms, incapacity for work commenced in February 2024 when the second set of allegations were received. Whilst Ms Banskota felt unable to work anywhere, Dr Moffatt considered her able to work in her pre-injury role with another employer.

1. Counsel for Ms Banskota was critical of the 2023 and 2024 disciplinary processes.
2. In relation to the 2023 disciplinary process, it was said that the outcome was prejudged and was unreasonable on that basis alone. The submission was based on the SIRS report to the ACQSC which said that the meetings with the three employees concerned were to "provide a first and final warning".[22] That was prior to the meeting with Ms Banskota taking place.
3. Secondly the 2023 allegations were misleading and unfair. TB did not require an incontinence pad change as the CCP said the issue was one for staff to deal with and was not scheduled at a particular time. It was not alleged that TB's incontinence pad was not checked.
4. The third failure was the failure to provide Ms Banskota with the CCTV footage. Ms Kaur said that CCTV footage was not usually provided to staff at all, contrary to the evidence of Ms Ogden and the Eldercare Managing Misconduct and Disciplinary Procedure (MMDP).
5. The fourth failure was said to be raising a new allegation not notified to Ms Banskota at the meeting that was not previously raised. The allegation was that Ms Banskota did not provide TB with full assistance to eat his dinner. Despite the irregularity of not apprising Ms Banskota of the allegation prior to the meeting, the allegation was found to be substantiated and Ms Banskota was found guilty of neglect.
6. Fifthly and finally in relation to the 2023 process, it was said that the decision to issue a first and final warning was unreasonable based on the clause 5.12 of the MMDP.
7. As Ms Banskota had no prior warnings or counselling, a first and final warning was not warranted as the incident was not sufficiently serious. The basis of the seriousness was said to be that Ms Banskota "now claiming that she does not remember the shift".[23]
8. In relation to the 2024 disciplinary process, counsel for Ms Banskota submitted there are seven flaws that invalidate the process.
9. It was alleged Ms Banskota assisted AA into a common area without having pants on. After Ms Banskota learned there was CCTV footage of the incident, she asked to see it. She was told:[24]

For confidentiality reasons, I cannot disclose why this information was not available to us prior to the allegation letter being issued.

1. In addition to that excuse being untruthful, counsel submitted that Ms Kaur's answer that the footage was "very distressing"[25] to watch stretched credulity too far. The failure to gather all the available CCTV evidence was unreasonable.
2. The treatment of Ms Banskota in relation to RP's seven attempts to escape out a window was also unreasonable counsel submitted. Ms Banskota's involvement with RP at the relevant time was minimal. Further, she talked to RP and listened to him actively and utilised strategies to calm him as the CCP stipulated making useful interventions.
3. The third fault with the 2024 allegations concerned the allegations in relation to TB. Counsel submitted that the Technical Nursing Needs Report for TB from 11 May 2025 to 25 May 2025 scheduled only one walk per day for TB, not two as the complaint against Ms Banskota asserted. Further, on 7 of the 15 days that the report covered, TB received no walk. It was submitted that the focus on Ms Banskota not complying with part of TB's CCP was completely disproportionate given the general non-compliance with the CCP. There was even greater non-compliance with TB's CCP after it began to stipulate that he was to have two walks per day. Counsel submitted that the extent of the non-compliance was in stark contrast to Ms Kaur's comment that she would expect even a single non-compliance to be escalated so that she could investigate it.[26]
4. Counsel submitted that when Ms Kaur was confronted with the extent of the non-compliance with the Technical Nursing Needs Reports, her evidence shifted substantially such that she said that as long as no concern was raised and there was no impact on the resident, a non-compliance with the report is not scrutinised or investigated. That was said to contradict this earlier evidence:[27]

No, nothing gets ignored. It still gets escalated... Then there is investigation done and follow up with staff.

1. Counsel submitted that it was clear that patchy compliance with some tasks was the norm and was accepted by management.
2. The failure to brush TB's teeth and the allegation that Ms Banskota was dishonest are the third and fourth complaints raised with the 2024 disciplinary allegations. Ms Banskota stated that she believed TB refused to have his teeth brushed. However that was not recorded. Counsel submitted that occurred on 7 out of 33 days between 1 January and 2 February 2024. Counsel also submitted that Ms Ogden acknowledged that Ms Banskota should have been reminded that she had not responded to the allegation.
3. The allegations re FA and IT concern an alleged failure to assist them to eat meals as per their CCPs. It was submitted that with IT, the allegation letter selectively quoted different parts of the CCP to create a new sentence that was not representative of the CCP. It was said that all IT's CCP required was for her to be supervised while eating and to prompt her to place food in her mouth if she was not doing that. Counsel acknowledged that IT did not eat much of her evening meal on 3 February 2024, but that was normal he submitted. Counsel cited other instances where IT only ate a portion of her meal, including at lunchtime on the same day when Ms Banskota was not on shift. With FA, counsel described the sequence of events in which Ms Banskota fed FA after another employee started to do so and then ceased. Ms Banskota went to help another resident who needed assistance and the other employee fed FA dessert.
4. The fifth complaint is that relevant information such as CCPs and policies were not given to Ms Banskota contrary to Ms Ogden's evidence that there is an unwritten standard procedure to provide employees with documents if they are requested. The comment is contrary to what is written in the MMDP and MS Banskota was not told by Ms Ogden or Ms Kaur that she allegedly had a right to access relevant documents.
5. Counsel submitted that Ms Ogden was asked multiple times how Ms Banskota would be able to access the information she was not provided with before she eventually said that she was expected to memorise or recall the contents of some 40 or so CCPs. Ms Kaur said it was enough that the CCPs were available to Ms Banskota whilst she worked despite the fact she was expected to be performing duties at that time. The failure to provide the CCPs deprived Ms Banskota of the opportunity to properly respond to the allegations made against her it was said.
6. The final complaint made about the 2024 disciplinary process is that the decision to dismiss was unreasonable. That was firstly because the 2023 disciplinary process was prejudged, secondly because of deficiencies and untruths in relation to the allegations against Ms Banskota, thirdly because of the failure to provide Ms Banskota with relevant information, fourthly because of the conduct of Ms Ogden and Ms Kaur at the June 2023 meeting and lastly because the decision to dismiss was unreasonable by objective standards and failed to satisfy cl 5.12 of the MMDP because there had been no sort of formal warning or counselling previously and the objective seriousness of the alleged conduct did not warrant a first and final warning.

1. Counsel for Eldercare took issue with the credibility and reliability of Ms Banskota's evidence and her demeanour when answering questions. It was said that Ms Banskota answered questions more satisfactorily than she did the questions put to her in cross-examination, including quite simple questions, which often featured long pauses.
2. It was submitted that the allegations of bullying made in the claim form were not really pursued in the case, and to the extent that they were, they involved trivial matters. The complaints made by Ms Banskota to Dr Begg that are recorded in his report are that she was treated differently because of her race and the uniform she wore, that she would be told off for minor errors and that her anxiety from dealing with Ms Kaur became persistent from the middle of 2023.
3. Counsel submitted that the stressors described to Dr Begg are so different to those described to Dr Moffatt, there is no basis for resolving them.
4. In relation to Ms Banskota not being provided with CCTV footage and CCPs at the disciplinary meetings that she attended, counsel submitted that Ms Banskota was given time in which to review the letters sent to her and consider the subject matter of the complaints raised against her. There was no attempt made to seek advice prior to the 2023 meeting and advice was sought from a union in relation to the 2024 disciplinary process.
5. Counsel submitted that the case mounted by Ms Banskota at the hearing was very different to the basis of the complaints made in the claim form. The claim is based on bullying and harassment while the complaints made at the hearing were largely forensic in nature and concern procedural fairness and the means by which Ms Banskota was performance managed.
6. It was submitted that the environment in which Eldercare operates is a strict and unforgiving one and the organisation's focus must be on the welfare of its residents.
7. Counsel submitted that Ms Banskota had very little to say by way of complaint about the actual processes undertaken by Eldercare in relation to her. It was suggested that lessens the impact of the complaints made by counsel for Ms Banskota about the integrity of those processes.

1. Ms Banskota was nervous and anxious giving evidence. Counsel for Eldercare was right in saying that the answers given to my questions were more direct and more helpful than the answers to her questions, but I am satisfied that that was a reflection of the high degree of nervousness and anxiety and Ms Banskota's mistrust of Eldercare given how she feels she has been treated. I draw no adverse inference about Ms Banskota's credibility from the way in which she gave evidence.
2. Ms Banskota found the behaviour of Ms Kaur and Ms Ogden during meetings to be upsetting. While Ms Banskota said that the two laughed during one disciplinary meeting, there is no real context for the complaint. Ms Kaur and Ms Ogden may have shared a joke or made a light-hearted comment. That may not have been wise given Ms Banskota's extreme anxiety and concern, but I do not find any impropriety.
3. In relation to Ms Banskota's complaint that Ms Kaur's treatment of her was racially motivated, Ms Ogden stated that Ms Kaur is of Indian descent and Ms Banskota is Nepalese.[28] I find that to be the case and accept that Ms Banskota may have thought Ms Kaur's treatment of her was racially motivated but there is no basis on which to make such a finding. The complaint was not pursued as part of Ms Banskota's case.
4. During submissions I suggested a summary of the respective cases of the parties to counsel for Ms Banskota after counsel for Eldercare sought clarity about the relevance of some of the allegations made about events that fall outside of the purview of the 2023 and 2024 disciplinary processes:[29]

Is it fair to say this? The respondent has, in effect, admitted injury and incapacity. The applicant has, in effect, admitted that this is a reasonable administrative action case. You don't exclude those other things from consideration but you acknowledge that it comes down to the 2023 event and the 2024 event, and that's what the focus of your submissions today has been on.

1. After some clarification, counsel agreed the summary was appropriate.
2. Relevantly to this case, s 7 of the RTW Act provides:

(1) This Act applies to an injury if (and only if) it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(a) in the case of a physical injury - the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and

(b) in the case of a psychiatric injury -

(i) the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and

(ii) the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).

(3) ...

(4) The following are designated for the purposes of subsection (2)(b)(ii) and (3)(b)(ii):

(a) reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker or a decision of the employer not to renew or extend a contract of service;

(b) a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment;

(c) reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment;

(d) reasonable action taken in a reasonable manner under this Act affecting the worker.

1. The June 2023 disciplinary process was based upon Ms Banskota being a member of a team on an evening shift on 24 May 2023 that did not reposition a chair-bound resident, TB. TB was also not taken for a walk and did not have his incontinence aid changed. The two psychiatrists who reviewed Ms Banskota, Dr Moffatt and Dr Begg, agreed that the 2023 disciplinary process caused her to become anxious.
2. In oral evidence, Ms Banskota explained that two persons are required to reposition and walk TB and also to change his incontinence aid. She said that he had been repositioned that day at 2.45pm just before her shift started. She acknowledged that he should have been repositioned again between 3pm and 7.45pm but said that TB refused to be repositioned and also refused to have his teeth brushed. I accept that evidence.
3. Prior to receiving a first and final warning, Ms Banskota had provided 11 years of service to Eldercare without any complaint being recorded about her work. Ms Kaur observed on the film that another employee partially repositioned TB during the relevant shift but did not move him from one chair to another. Ms Kaur did not consider whether there were differing degrees of culpability of those involved. A first and final warning was issued to all non-nursing employees who worked that shift. Ms Kaur said that the failure to reposition TB caused him to fall from his chair. It was not explained how that conclusion was reached given that Ms Kaur also said TB regularly fell from his chair. I do not accept Ms Kaur's surmise.
4. In Coutts v Close,[30] Griffiths J said the following:[31]

Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an "open file" policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.

1. The comments about an "open file" policy in that passage relate to a report concerning the conduct of an Australian Federal Police officer. The facts of this matter are distinguishable from that context.
2. In David Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits,[32] the Fair Work Commission addressed procedural fairness when CCTV footage relevant to the subject matter of the action was available and when a decision to terminate the applicant's employment had been made before an investigation had concluded:[33]

The decision to dismiss Mr Bridge was procedurally unfair. Before a decision was made to terminate Mr Bridge's employment, he should have been provided with further particulars that would have enabled him to provide a response regarding the incident. Mr Bridge should also have been provided with the opportunity to view the CCTV footage which was also denied. The decision to terminate Mr Bridge's employment was made prior to the outcome of the investigation and prior to Mr Bridge being notified of the reasons for his dismissal. Further when one considers that Globe Bottleshops had access to and did access professional advice from the THA prior to making the decision to dismiss Mr Bridge, there was no reasonable excuse for the failure to provide him with procedural fairness.

1. The record of the meeting between Ms Banskota, Ms Kaur and Ms Ogden on 14 June 2023 reveals that Ms Banskota was at a serious disadvantage by not being given access to the CCTV footage and TB's CCP. In response to being asked whether she had fed TB, Ms Banskota said that the shift was two weeks ago. It is not surprising that she would not recall the shift given she had worked other shifts in the same ward in the interim. It was clear that Ms Banskota was not able to respond properly to the level of detail that was put to her in relation to the shift, but Ms Kaur continually provided Ms Banskota with examples of what the CCTV footage showed. If Ms Kaur and Ms Ogden wanted considered responses to the multiple assertions and allegations made at the meeting, TB's CCP and the CCTV footage should have been provided to Ms Banskota prior to the meeting.
2. Ms Kaur's comment about the 14 June 2023 meeting was:[34]

Sonam provided a detailed written response regarding this incident prior to the meeting, and is now claiming she does not remember the shift. CCTV footage is evident [TB] was neglected. There was no attempt to stand the resident. He was not repositioned. He was also not assisted with his dinner in accordance with his care plan. As a result of the neglect, the resident was left agitated and suffered a fall.

1. The comment ignores that that the level of detail about the shift presented to Ms Banskota at the meeting was much greater than the detail she was able to provide in her written response. After being presented with conclusions based on close analysis of the footage, Ms Banskota could not respond to the conclusion that the failure to reposition TB led him to fall.
2. In addition to not affording Ms Banskota procedural fairness, the SIRS report sent to the ACQSC indicated that a first and final warning would be given to Ms Banskota before she had been interviewed about the incident. The issue had been prejudged, presumably to placate any concern the ACQSC might hold.
3. It was unreasonable to issue a first and final warning to Ms Banskota based on what occurred on 3 February 2023. That is not the case just by reference to fair and reasonable employment standards, but also by reference to cl 5.12 of the MMDP which states:

The level of warning letter, i.e. First, Second or First and Final, will be determined by the seriousness of the event and whether a warning has been issued in the previous 12 months for the same or similar offence.

1. Ms Banskota had not received a warning about her work performance in the 9 years in which she had worked for Eldercare prior to February 2023.

The first and final warning was not just unreasonable, it was given in an unreasonable manner. Ms Banskota's disadvantage in not having access to relevant and important evidence used against her was palpable. Ms Kaur told Ms Banskota what the CCTV footage showed. In the absence of being able to view it, how could Ms Banskota challenge or respond meaningfully to the complaints made against her? No real opportunity was given to Ms Banskota to interpret or explain any of the actions that Ms Kaur referred to. The CCTV footage and TB's CCP should have been provided to Ms Banskota prior to the meeting as Ms Ogden appeared to acknowledge.

1. Ms Kaur's explanation that "confidentiality reasons"[35] prevented her from allowing Ms Banskota to see CCTV footage of the allegation that she allowed AA to walk into a common area without pants on is specious. Ms Banskota was present when the events captured by the CCTV footage took place. It is difficult to understand how confidentiality would be breached by allowing an employee who is in the footage and was present when the events took place to see the footage.
2. I suspect that Ms Kaur and Ms Ogden did not want Ms Banskota to learn that they had made a serious mistake in relation to the most serious allegation levelled against her. They were happy to rely on and show Ms Banskota the incriminating CCTV footage but not the exculpatory footage.
3. Ms Kaur's initial response to being asked why she did not review all the CCTV footage of the incident with AA was to say that it was that it was "very distressing to watch the footage from that day"[36] The answer was disingenuous and designed to avoid answering the question. Ms Kaur acknowledged that was not why she failed to watch the footage when pressed about the issue.
4. The way Ms Banskota was treated in relation to RP's escape attempts was unreasonable. In her affidavit, Ms Banskota deposed that she was on a break when the first escape attempt occurred. Three other staff were present and dealt with RP. Five minutes later when Ms Banskota was back on duty, RP attempted to escape again. A colleague dealt with RP while Ms Banskota called the RN to advise what had happened. Five minutes later RP made a third attempt to escape. Ms Banskota's colleague and the RN, who had arrived by then, dealt with RP. Three minutes later RP made another attempt to escape. Ms Banskota's colleague and the RN once again dealt with RP as Ms Banskota was not present. It was not suggested that her absences from the ward were improper or in breach of her duties. RP made other escape attempts whilst Ms Banskota was not present. She was asked to assist the others in relation to the last escape attempt and did so. Ms Banskota, her colleague and the RN then all talked to RP for 8 minutes to try and calm him down. RP apologised to them for causing trouble. In her affidavit, Ms Banskota deposed that she was only present for the second of RP's multiple escape attempts. In relation to strategies used to calm RP, Ms Banskota gave him a cup of Milo, a strategy she had used before with RP. Talking to RP was another strategy used to distract and calm him. Ms Banskota made the point that on the one occasion that she was present when RP tried to escape, she did not have primary conduct of the situation and did not make the decision of how to deal with RP.
5. Despite Ms Banskota's involvement with RP being minimal and despite her helping to calm down RP, she was found equally responsible for RP's behaviour. That was not reasonable. The other residents on the ward had to be attended to. It was also not reasonable to expect Ms Banskota to use each and every strategy listed in RP's CCP in a serial fashion as Ms Kaur suggested. If Ms Banskota had read the CCP while RP continued to make escape attempts, as Ms Kaur appeared to suggest, that would only have lessened the number of staff available to deal with RP and all the other residents. Ms Kaur's approach to the issue appears to be theoretical and based on a slavish adherence to the CCP.
6. A record of the disciplinary meeting held on 4 March 2024 shows that Ms Banskota mentioned that she was on a break and was not present when RP's behaviour escalated. Ms Kaur responded by saying that Ms Banskota needed to consult the CCP and take responsibility. She also suggested that Ms Banskota should have come back from her break. Ms Banskota then said that when she was present, she gave RP Milo and it settled him down. Given the circumstances, she asked what she should have done? Ms Kaur said that giving RP Milo was not in the CCP and "may make it worse".[37] That response undermines the strategy that Ms Banskota used. It is not clear why giving RP Milo may have made things worse. Ms Kaur spoke without the experience or responsibility of managing RP in a hands-on way when he was being difficult in a ward comprised of dementia patients.
7. While some of the complaints about Ms Banskota must be judged by the performance of the team she was a member of, that was neither necessary nor fair in relation to the complaint about the handling of RP. There was a clear basis for distinguishing the performance of Ms Banskota from other members of her team in relation to the escape attempts made by RP. Ms Kaur and Ms Ogden failed to have any regard to that and were unreasonable in that regard.
8. Given the findings that have already been made it is not necessary to deal in detail with all the other complaints made by Ms Banskota in relation to the 2024 disciplinary process. I accept the submission of counsel for Ms Banskota that the 2024 allegations made about her in relation to TB are not accurate or properly based because TB's CCP was not properly interpreted or described by Ms Kaur.[38] Further, the requirement to walk TB was not observed on multiple occasions.[39] That fact conflicts with Ms Kaur's comment that she expected any single need or requirement in a CCP that is not met to be escalated so she could investigate it.[40]
9. I am not satisfied that Ms Banskota was dishonest in claiming that TB refused to have his teeth brushed. The basis for the allegation appears to be that TB's refusal was not recorded. The failure to record does not equate to dishonesty. There is a no record of an explanation for a failure to brush TB's teeth on 7 out of 33 days from 1 January 2024 to 2 February 2024.
10. The fifth complaint in relation to the 2024 disciplinary process is that relevant information such as CCPs and policies were not given to Ms Banskota. For similar reasons to those given in relation to the same failure in the 2023 disciplinary process, I accept the submission.

The result of the 2023 and 2024 disciplinary processes

1. The decision to terminate Ms Banskota's employment was unreasonable. The 2023 disciplinary process was unreasonable and was conducted in an unreasonable manner. The outcome of the 2023 disciplinary process was seriously flawed as Ms Kaur had determined to give Ms Banskota a first and final warning before Ms Banskota had been heard.
2. The termination of Ms Banskota's employment was flawed as it relied on the validity of the first and final warning given in the 2023 disciplinary process. In addition to that, the deficiencies and inaccuracies in the allegations made against Ms Banskota in the 2024 disciplinary process, and the failure to provide her with relevant evidence like CCTV footage and CCPs, was unreasonable and indicates that the 2024 process was conducted in an unreasonable manner.
3. Counsel for Eldercare submitted that the actions of an employer are not to be judged by the standard of perfection and that it is relatively easy for an applicant to find fault with the actions of an employer in a heavily regulated environment like aged care. I accept both submissions. However, even if most of the technical complaints made by counsel for Ms Banskota are disregarded, it is apparent that the 2023 and 2024 disciplinary processes were conducted with a disregard for what Ms Banskota had to say and a serious failure to observe natural justice by not giving her access to relevant material that would have assisted her to defend the allegations and ensure there was a fair and balanced hearing. The 2023 and 2024 disciplinary processes were not, by objective employment standards, fair or reasonable. The approach taken in each disciplinary process was heavy handed and conclusionary.
4. It follows that the relevant placita of s 7(4) of the RTW Act do not operate as a defence to the claim as the actions taken by the employer that resulted in Ms Banskota sustaining injury were not reasonable and were not conducted in a reasonable manner.

1. The decision of the respondent dated 25 March 2024 is set aside and substituted with a decision accepting the applicant's claim for workplace stress and anxiety for weekly payments of income support and medical expenses.
2. The relevant date for the purposes of s 4(11) of the RTW Act is 12 March 2024.
3. The applicant is entitled to weekly payments of income support pursuant to s 39 of the RTW Act along with interest pursuant to s 65(1)(b) of the RTW Act.
4. The applicant is entitled to medical expenses pursuant to s 33 of the RTW Act.
5. The applicant is entitled to reasonable costs of the proceeding to be agreed or adjudicated.
6. The parties have liberty to apply in relation to fixing the rate of average weekly earnings, the quantification of arrears and interest and any other issue concerning the quantum of any amount payable under these orders.

[1] Trial Book (TB), Affidavit of Sonam Banskota dated 29 January 2025 [31].

[5] Affidavit of Amajot Kaur affirmed 31 March 2025 [21].

[15] Affidavit of Catherine Ogden, 1 April 2025 [20].

[30] [2014] FCA 19.

[32] [2021] FWC 3153.

[38] Closing submissions of the applicant [66]-[70].