147 Ms Howell took the witness to the issue of reliance upon the fact that Mr Prior's safety was not in jeopardy and the resident was restrained in the security chair and Mr Prior could have at any time backed away from the resident, and therefore remove himself from the situation. She was then asked as to whether she agreed that, if Mr D had grabbed Mr Prior's shirt, it would not be true that he was able to step away. Ms McIver's response was that based on witnesses' statements, she could not confirm that the applicant was grabbed by the front of the shirt.
148 Ms McIver agreed that if the resident had grabbed Mr Prior by the front of his shirt, that he could not break away, unless he broke the hold of Mr D, but went on to say, that he could have asked for assistance at that stage, in a dining room where staff were around.
149 Ms McIver was asked questions in respect of the disciplinary policy of the organisation and revealed that she sought advice at the time of the applicant's dismissal, which included that of the Director of Risk and Corruption for the previous South East Area Health Service, which included whether or not the family of the resident ought to be involved. She also looked at the Nurses Registration Board requirements.
150 In respect of that policy of mandatory requirements, reporting allegations of incidents relating to staff, she agreed that she had notified the relevant people of the incident, and the relevant managers who were responsible to notify the New South Wales Police Service, namely the Manager of the Professional Practice Unit, Ms Sue Hanson. She also had a discussion with the family in that process, who did not wish to pursue charges.
151 Ms Howell put to Ms McIver as to whether she agreed that a staff member is entitled to use reasonable force in dealing with residents, to which Ms McIver replied, "if the incident involving the need to disengage someone from being grabbed, that that would require a certain amount of force".
152 She went on to say that she did not believe that the incident involving Mr Prior was of that nature, and when tested further on it, agreed that if a staff member was backed into a corner, that she would like to see as little as possible force used, to avoid getting into that situation.
153 Ms Howell put to Ms McIver that as shown by the records, that it had been put to witnesses at the commencement of their interviews, that they had witnessed Mr Prior physically assault the resident, and by saying that to witnesses, that she was prejudging the situation, or putting the proposition of an assault happening into people's minds, which is the very thing that she was supposed to investigate.
154 Ms McIver responded by saying that she did not believe that negated what the witnesses had to say, and having regard to the distress shown by the witnesses in their interviews, she did not believe that she was pre-empting or telling them what they saw. She believed that as far as her interaction with the staff was concerned, they should not have feared any interaction from her at the interview.
155 In respect of the statement provided by Melanni Bridges at Annexure 11 of Exhibit 6, which was requested via telephone by Ms McIver, because Ms Bridges was on leave at the time and did not return until several days after the incident on the 12th December. She could not say why she did not actually interview Ms Bridges, but drew attention to the fact that she had statements from other witnesses. She agreed that Ms Bridges had made no reference to any other contact or any action by Mr Prior to grab or twist Mr D's arm, but relied upon the whole complexity of the incident and that people had seen different things, standing in different positions, and different aspects of the incident. She believed Ms Bridges had been standing in the kitchen doorway.
156 As to why she had not persevered with further questions as to Ms Bridges' statement of seeing Mr Prior's hand come in contact with the left side of Mr D's face, she felt that in reality the whole incident occurred quickly, and that Ms Bridges had seen an event where Mr Prior's hand did touch or come in contact with Mr D's face, and that she had other witnesses who had seen more of the overall incident. Whether or not it was the left hand or the right hand side of Mr D's face, was not going to affect a change in her decision. She believed that the fact that Ms Bridges had used the expression "came in contact", showed that the staff did not wish to make it any worse for Mr Prior than it already was.
157 Ms McIver was taken to the record kept by Mr Coventry of a conversation with Sandra Bowley, who initially said to him when approached by him, that she had seen Mr Prior hit back at the resident and grabbed the resident's arm and twisted it, and at the bottom of the same report by Mr Coventry - following the discussion with Sandra Bowley, she is recorded as saying that she witnessed Mr Prior slap the resident across the head and punched the resident in the arm. She agreed that Ms Bowley was, "not exactly pulling her punches with her words", and also agreed that the two descriptions were different. She was asked whether she canvassed that difference with Ms Bowley, and in response, she based her decision on her interaction with Ms Bowley, and the other evidence in front of her at the time.
158 In response to further questioning as to exactly what she relied upon by way of contact (by Mr Prior) with the resident, Ms McIver gave the following testimony, "I did not consider that it needed to be anymore than once. I think that if it was more than once and there was enough evidence in front of me to say that there was more than one, then it was a serious enough incident for me to have to act in this manner".
159 She went on to again reinforce that she believed that there was an assault, either by twisting an arm, or punching a resident, and that it was not reasonable force, it was an assault. In response to the proposition that she did not make any conclusions of the precise manner in which the assault occurred, she again referred to the fact that different parts of the same incident had been observed by witnesses, and on the balance of evidence came down with what the staff had told her in their witness statements, and that they'd all stated there was a contact with Mr D, the resident.
160 In respect of Mr Prior's statement to her at interview as to what had occurred in relation to being punched and grabbed by Mr D, Ms McIver testified that she did not believe that it was necessary to be more pointed in her questions to staff and did not interview the staff again after the 20th December interview with Mr Prior, because she felt she had sufficient information on the balance of probabilities as to what had actually occurred. She agreed that she had said to Mr Prior at that interview, that she would need to question the staff as to whether they had seen what he alleged, and that she agreed that she did not do so, but still believed if she had, she would come to the same decision.
161 In respect of the Nurses Association letter of the 5th January, which raised some alleged inconsistencies in the evidence of various witnesses, Ms McIver said that she had contacted Mr Felix Lidandowski, the Director, who actually came and reviewed all the documentation, including the letter from the Association, and supported her recommendation for termination. She did not believe that there was anything in the Association's letter to require her to go back and re-examine the witnesses, and the Director advised her that he did not believe there was anything more that she was required to do.
162 Ms McIver's attention was taken to the report of Sandra Bowley, who had advised the investigation that she had thought that Mr D's arm had been broken by the exchange with Mr Prior, but observed Mr D moving his arm following the incident. She gave evidence that she had spoken to Mr Coventry about that aspect and he advised her that he had examined Mr D, and her understanding was that there was no visible sign of injury. She did not take that matter up as she believed that the arm was not broken, and it was difficult to ascertain precisely what bruises were incurred by residents given the number of knocks against various things.
163 On the question of whether or not Ms McIver had considered what training Mr Prior had had in terms of dealing with aggressive behaviour whilst he was at Garrawarra, Ms McIver maintained that the question of how to deal with aggressive incidents was a priority to all staff at Garrawarra, to ensure appropriate training and there was appropriate reinforcement with care plans and discussions on the unit. Whilst she believed adequate training was necessary, it was inappropriate for a staff member to strike a resident, irrespective of the amount of training they had had. It was also against the code of conduct. She believed the training of staff and reinforcement at the end was sufficient for Mr Prior to know the appropriate behaviour. She ascertained the type of training Mr Prior had had in respect of the general training was what all staff received, and the aggressive residents admitted to Garrawarra were part of the working environment. She believed that Mr Prior had the normal training that staff received. She believed that whilst the training was short, it was one to two hours, it was reinforced on a daily basis by care management.
164 She was shown Exhibit 10, which was the Department of Health's policy directive known as Training Program, A Safer Place to Work, Preventing and Managing Violent Behaviour. Ms McIver believed the document was very much based on acute care and she believed that there was not a course offered by the Area Health Service which she could send staff to in respect of the specific requirements at Garrawarra. She agreed that Exhibit 10 was the minimum standard required for the education of employees. She had sent two Senior Nursing Managers to discuss the implementation of the policy document, to have them included in a type of module. She claimed that she was not able to send staff at Garrawarra to the course available because it was not available for the Area Health Service and was not yet established. She therefore requested that senior staff internally provide some education for staff of practical education on how to address issues of violence. She admitted that the extent of training contemplated by the program had not been instituted at Garrawarra and that the first eight hour module within that policy document had not been implemented for staff at Garrawarra. She believed that the second module mentioned by Ms Howell, was more in keeping with acute care, and whilst agreeing that module 2 was appropriate for staff at Garrawarra, claimed that she had asked two of the Nursing Unit Managers to go along and participate in assisting the area in developing a suitable module to address dementia and challenging behaviour issues at Garrawarra. She agreed that none of the training had ever been offered to Mr Prior, because it did not exist, but other training had been offered. She believed that that was a two hour course and that this was reinforced by Care Planning and involved discussions with Nursing Unit Managers. She agreed that Mr Prior's level of training fell far short of that identified in the Health Department's mandatory policy, but again reverted to the reasoning that Nursing Unit Managers had put in place training staff.
165 The option of other disciplinary actions such as transfer to a different facility within the area and where a high degree of supervision is possible was canvassed with Ms McIver, who claimed that she believed in discussions with the Director, that termination was more appropriate, and in the process revealed that there were other options available to discipline the applicant, but it still came down to the fact that she had chosen to terminate the applicant on the basis on the seriousness of the incident.
Final Submissions
166 Ms Howell began her submissions by reminding the Commission of the evidence given by all the respondents' witnesses of the nature of the residents at Garrawarra in the unit where the applicant worked. More specifically, she referred to the frequency with which it was acknowledged that violent or aggressive behaviour might occur with residents, and again more specifically the frequency with which the particular resident involved in Mr Prior's dismissal was aggressive or struck out at staff.
167 Ms Howell referred to the fact that in the case of Ms Lindsay, she gave evidence of having discussed her evidence with Ms Sandra Bowley in between the incident and her interview with Ms. McIver
168 Ms Howell gave evidence that the dismissal of the applicant was disproportionate to the applicant's conduct, having regard for the failure of the organisation to have fulfilled its mandatory policy on training, which included specific modules on the handling of a violent or aggressive resident.
169 She next took the Commission to the shift of onus in this case, involving alleged misconduct, referring to the Pastrycooks' case and other authorities, which among other things, make clear the need for a high standard of proof. Franklins and Webb was mentioned in the same vein, which is an authority for the fact that employers in such situations must be very sure and the Commission should take into account the consequences which in Mr Webb's case, were profound. She also referred to the decision of Wilcox CJ…… the decision of Deputy President Sams in the Standley Vs Electronic …… where his Honour made observations of the serious consequences and diminished future prospects of employment, as a result of dismissal in certain circumstances.
170 She referred to the decision in the New South Wales Teachers Federation (Mossfield) and the Department of Education, where his Honour Deputy President Grayson made observations of the special circumstances warranting the Commission's intervention, noting that that matter is currently under appeal, but where a student was assaulted by a teacher and the particular circumstances were taken into account by his Honour. In the process, she also referred to the decision of Boland J…….. makes clear that the circumstances of each case should be taken into account, which might make a decision harsh in specific circumstances.
171 In High Court authority of Byrne and Frew Vs Australian Airlines, Ms Howell pointed to the reference to the likelihood of a disproportionate penalty being handed out to employees in certain circumstances.
172 In Mr Colin Prior's case, there was a lack of procedural fairness in several respects. She began by reference to characteristics of the particular resident involved, who was a strong sixty two year old man suffering dementia and where the evidence showed that that resident was regularly engaged in fighting or biting.
173 Ms Howell dealt with the fact that the applicant had failed to report the incident with the particular resident, and believed this could be accounted for by the fact that his conduct had occurred almost on a daily basis, and not every single incident is recorded in such a system.
174 She alluded to the process of enquiry adopted by the Area Health Service and noted that the employer had not made precise findings in respect to certain matters contended by the applicant, such as that he was grabbed by the particular resident and was forced to make efforts to release himself. That should be looked at in the context that there was independent evidence that he was struck on the arm by the resident.
175 The report by Ms McIver to the Area Health Service conveyed the impression wrongly, that all four witnesses had seen each of the alleged contacts with the resident, i.e. punching him in the arm, slapping him on the side of the head and twisting his arm.
176 Again as to process, Ms Howell noted the fact that the respondent had failed to find if the resident had grabbed the applicant's shirt. They failed to follow up, despite making such a promise to Mr Prior when interviewing him by Ms McIver.
177 She believed that the fact that a number of witnesses were asked collectively whether they had seen any incident occur on the 12th December, was an important flaw in the process. Those flaws affected the conclusion reached by the employer, but also the evidence which eventually flowed after that joint meeting of staff at the individual interviews with Ms McIver. It was a case that it is not possible to turn back the clock so to speak, Ms Howell suggested, when the damage was done by that joint meeting with Mr Coventry, the NUM (Nursing Unit Manager). Precise findings of fact were not acknowledged by Ms McIver, such as that the applicant was required to use reasonable force to extricate himself from the grip of the resident. This was despite Ms McIver's acknowledgement in cross-examination that these issues were important. Given the fact that the respondent did not find exactly what happened in respect of all the matters, such as striking of the arm, the twisting of the arm, she asked how the respondent could have properly accessed what actually triggered that incident.
178 Part of the respondent's reasoning was that the applicant could have stepped back from this situation with the resident.
179 Ms Howell referred to the evidence of Ms Bridges, who she noted was the only person who did not participate in the joint meeting of staff with Mr Coventry, when the initial investigation was undertaken. Neither did Ms Bridge participate in the interviews with Ms McIver.
180 Ms Bridges' evidence was limited to stating that she saw the left hand come in contact with the resident's left side of the face. There was no elucidation by her as to whether that was simply a tap without force, or otherwise delivered.
181 Ms Howell suggested that Mr Coventry denied that such a joint meeting of staff had taken place before the McIver interviews.
182 Ms Marion Lindsay gave honest evidence that all she saw was people's shocked faces.
183 Ms Fitzgerald gave evidence that details of the interview were not discussed between staff, yet Ms Lindsay's account was that she did have such a discussion with Ms Fitzgerald. It was obvious from that, that some contamination of the evidence again took place. There was some discussion between Ms Fitzgerald and Ms Bowley, although Ms Bowley denied such discussion, and that took place before the formal interviews.
184 Ms Fitzgerald said that she observed the event, but didn't observe him walk towards the applicant, but after speaking to Ms Bowley, gave evidence to Ms McIver that she did make such an observation.
185 Even the note sent to potential witnesses was prejudicial, inasmuch that it said to staff, "it has been reported that you witnessed an assault…..".
186 Ms Howell moved to a new area which she said was very much of importance to the applicant's case dealing with the alleged lack of training of the applicant. She believed that the absence of such training meant that the applicant may not have been in the position to deal sufficiently with such residents, where they might be in the habit of punching or kicking, such as the resident involved, who was said to have a predilection towards violence. The applicant's training was minimal, some brief training and evidence was given by him that he had missed one session due to the Waterfall train disaster. In all, his training was that of a preliminary one hour in 2004. Some of the material in that training modules related to working in a safe environment. The Health Department's policy in that regard was Exhibit 10 in these proceedings and set out the minimum standards. It was issued in July, 2003. Module 1 involved an eight hour session and which included the control and handling of violent and aggressive residents. Module 2 likewise, was an eight hour session, and specifically mentioned aged care residents. Module 4 was a two hour, every two years, refresher module. All this had to be compared to the one hour session the applicant had in respect of the official training. Neither had the organisation complied with the local policy which was included in Exhibit 9.
187 Ms Howell referred to the speed in which the events occurred, describing the evidence of Ms Fitzgerald, where she described a tussle which was over in five to eight seconds. This would have made it all the more difficult to really assess the situation.
188 The fact that no staff member had reported the incident that evening, even though there was a Senior Nurse on duty, was significant and suggested that the incident was not as bad as made out by the respondent.
189 Related to that, the evidence of Ms Bridges, who said that the incident did not merit reporting, should be taken into account.
190 The fact that no staff member bothered to examine the resident for damage to his arm, was likewise indicative that events were not as serious as now made out. Ms Sandra Bowley, who gave evidence that she thought the resident's arm had been broken, nonetheless, did not bother to examine him, but contented herself by observing that he had moved his arm. Later in her submissions, she referred to the fact that it was possible that a person with a broken arm could still move their arm. Again she repeated that whilst there were several people there who observed the incident, none thought it necessary to report the matter, except two employees who suggested that the actions at the time, were a bit excessive.
191 Mr Prior's account of what took place was honest, and consistent, and should be accepted by the Commission.
192 It was abundantly clear that the resident's behaviour was aggressive and violent.
193 The resident's aggressive behaviour was referred to by Ms Fitzgerald. Ms Bowley gave evidence of the resident lashing out at the applicant. Ms Fitzgerald gave evidence of the resident grabbing the arm of the applicant. She suggested the action of the applicant to having his arm and shirt held was not extreme, when he was worried about his shirt being torn.
194 As to the allegation of the applicant hitting or punching the resident (para. 80), the only witness to this is Sandra Bowley, who alleged that the resident was slapped across the face and punched in the left arm, but it should be observed that her account changed drastically from the first account given to Mr Coventry, which simply said that she saw Mr Prior swinging his arm as if to hit the resident. The second point in respect of her evidence is that, she omitted any reference to the resident hitting out at Mr Prior, which suggests that she wished the worst possible construction put on Mr Prior's actions.
195 Ms Bowley's hostility to Mr Prior is reinforced by the gratuitous advice she offered in her interview that Mr Prior was a, "bit of a bully", whereas there was no evidence of this, and where in her evidence, she said that "she had never seen him act aggressively or with too much force before". By the time of giving her evidence, she could no longer remember whether she saw the resident hit out at Mr Prior. Likewise, her evidence of other issues must be regarded as dubious. Ms Howell repeated her earlier submissions in saying that Sandra Bowley's dramatic statement that in the interview that she thought the resident had broken his arm, had to be looked at in the context that she'd not bothered to examine the resident, but merely observed him moving his arm later. This must be startling negligence on Ms Bowley's part, with the likely explanation that her later account was an extreme exaggeration.
196 Ms Bowley denied talking to Ms Fitzgerald during 13th December, about what had occurred, which was in direct conflict with Ms Fitzgerald's evidence that the two talked about what they had seen.
197 Ms Howell maintained that Ms Bowley's demeanour in the witness stand was hostile towards the applicant, and showed an inability to answer the simplest questions about events before the incident, and about the incident. Ms Howell provided eight examples of where she felt that Ms Bowley had failed to provide information known to her, and appeared fearful of giving the "wrong" answer and claimed to not to know or remember things. She, in the process, appeared to advocate her position, rather than an honest account.
198 In respect of other evidence before the Commission, Ms Margaret Bowley and Ms Fitzgerald, did not see Mr Prior strike the resident. Each reported only seeing one movement by Mr Prior, which could have been construed or misunderstood to be such a movement. None of them saw a punch as alleged by Ms Sandra Bowley, and none reported two movements of Mr Prior's arms.
199 Ms Fitzgerald saw Mr Prior, "swinging his arm as if to hit the resident", but clearly did not see any contact. She volunteered that the noise she heard might have been someone moving their foot.
200 Ms Margaret Bowley saw Mr Prior swinging his arm, but said that she was not sure whether that was to put the resident back in his chair.
201 Ms Howell referred to what she believed was a contradiction about which hand Mr Prior used to allegedly hit the resident, such as whether it was the left side of the face by Mr Prior's right hand, while yet Ms Bridges alleges contact "between the left hand and the resident's face" but corrected it to the left hand contact to the right part of the face.
202 In the absence of clear corroborating evidence, Ms Howell suggested that it was unsafe to rely upon the evidence of Sandra Bowley, that the applicant had punched and slapped the resident, or made any contact in the nature of a hit or punch.
203 In respect of the arm contact, Sandra Bowley, Ms Fitzgerald and Ms Margaret Bowley said that Mr Prior either grabbed or twisted the resident's arm. These witnesses did not see the resident take hold of Mr Prior's shirt, although Sandra Bowley suggested in her first account, that the resident grabbed Mr Prior's arm, but given the speed at which the incident occurred and the angles and distances of people standing, it is not surprising. Ms Fitzgerald acknowledged that it was possible that the resident grabbed Mr Prior by the shirt.
204 Ms Fitzgerald said at her 13th December interview, that Mr Prior grabbed the resident's arm and gave varying accounts of how this occurred, but that it happened very quickly and said that Mr Prior, "proceeded to squeeze and twist his arm…."
205 Ms Margaret Bowley said she saw Mr Prior grab the resident's arm, and in proceedings said, "reach out and grab the resident's arm and push it to the table", but explained what she meant by twisting, which contained the words, "like pushed it". She also said, "well, I don't mean that he's grabbed the arm and twisted it like that. I think that I was referring to was that it sort of - he's grabbed the arm and twisted it down onto the table, like, that's what I was meaning".
206 That description is consistent with what Ms Howell suggested was Mr Prior's intention of merely removing or prising the resident's arm from his shirt, and he could not be said that he used unreasonable force in the circumstances.
207 Ms Howell make submissions as to the remedy the Commission ought to give him in the circumstances, claiming that there was no impediment to a reinstatement of Mr Prior, but that if reinstatement was not to be awarded , that a re-employment in a number of work places under the umbrella of the respondents would be appropriate.
208 Ms Howell also made submissions in respect of the remuneration received by the applicant and the loss of earnings as a result of his dismissal. She claimed that the Area Health Service had some five thousand nurses in such locations as Sutherland, St George and Wollongong hospitals, and these would be particularly appropriate if re-employment was ordered. All those hospitals had aged care wards, although the applicant is capable of conducting general nursing duties.