Briginshaw v Briginshaw

Onus on employer to prove misconduct, with a high standard of proof necessary. CATCHWORDS: Impossible to reconcile applicant's simple version of altercation with resident, with believable accounts given by witnesses.

Onus discharged and assault found serious enough to justify dismissal despite 6 years of unblemished employment with respondent organisation

LEGISLATION CITED: Industrial Relations Act 1996

Briginshaw v Briginshaw (1938) 60 CLR 336 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449 Franklins Limited v Webb (1996) 72 IR 257 Gooley v Westpac Banking Corporation 59 IRC 262 Standley v Electronics Boutique Australia Pty Ltd IRC 4516 of 1998 High Court in Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at 465 CASES CITED: Staal and others v WSAHS Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 at 104 Holingsworth v Commissioner of Police 88 IR 282 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 (29 July 2003) Antonakopoulos v State Bank of NSW (1999) 92 IR 385 at 389 Perkins v Grace Worldwide (Aust.) Pty Ltd (1997) 72 IR 186 Wang v Crestell Ind. Ltd (1997) 73 IR 454 Perks & Petroski v Dept. of Juvenile Justice [2005 NSW IR Comm 448]

HEARING DATES: 19/06/06, 20/06/06, 17/7/06.

APPLICANT Ms Howell of Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr Paul of Bartier & Perry

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COLIN PRIOR AND SOUTH EASTERN SYDNEY ILLAWARRA AREA HEALTH SERVICE.

Application by Colin Prior re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Mr Prior was employed as a Registered Nurse by the South Eastern Illawarra Area Health Service for some six years, working firstly after graduation at Calvary Hospital, Kogarah, which provided aged care and rehabilitation services. He then commenced at Garrawarra Centre, Waterfall, which is a dementia specific aged care facility, specialising in managing residents with dementia and challenging behaviours. 2 Mr Prior was dismissed following an investigation of an incident which occurred on 12th December, 2005, in the Acacia Unit, where he had been stationed over the previous six months. 3 That incident was said to have been fully or partly witnessed by four staff directly - but at various stages. 4 The applicant was stood down the day after the incident to allow an investigation. He was interviewed on 20th December, 2005, having been shown the reports of staff and finally dismissed on 6th January, 2006. 5 The dismissal letter was as follows: 6 January 2006 Dear Mr Prior,

I refer to your response to my correspondence dated 22 December 2006. I have considered the details contained in the statement received on 5 January 2006 from the New South Wales Nurses Association; your responses at interview on 20 December 2005, together with reviewing all the evidence available to me on the matter. It has been found that you have not been able to address the allegations made against you and as the allegations are of such a serious nature, a recommendation has been made to the Area Manager of Employee services to have your employment terminated. I wish to advise the Area Manager of Employee Services has considered the evidence provided and has determined that your employment with South Eastern Sydney Illawarra Area Health Service located at Garrawarra Centre be terminated from the date of this letter. This determination is based upon the following: * On the 12th December 2005, at approximately 5.00pm in the right wing dining room of Acacia Cottage at Garrawarra Centre you physically assaulted Mr J……. D…….., a resident of Garrawarra Centre. * On the 12th December 2005 at around 5.00pm in the same location you struck Mr D……….. and twisted his arm. * Your behaviour towards Mr D………. on the 12th December 2005 at around 5.00pm was inconsistent with the requirements for professional practice. In addition, please note that in accordance with Area policy and the requirements of the Nurses and Midwives Act 1991, this incident has been reported to the Nurses and Midwives Board of New South Wales. The Employee Services Unit has been instructed to terminate your employment. Any monies owed will be deposited to your nominated bank account. Yours sincerely, Susan McIver Executive & Nursing Director 6 The Association who represented Mr Prior through legal counsel, Ms C Howell, relied, amongst other things, upon the differences in observations to challenge the eye witness accounts relied upon by the respondent. 7 The respondent was represented by Mr M Paul of the legal firm of Bartier and Perry. 8 The hearing of the matter ranged over some three days, beginning on 19th and 20th June, and extending to 17th July, 2006. 9 The Association relied upon the applicant's evidence whilst the following witnesses were called by the respondent in the following order: Mr M Coventry, Nursing Unit Manager (NUM); Ms Tracey Fitzgerald, Hospital Assistant; Ms Sandra Bowley, Trainee Enrolled Nurse; Ms Margaret Bowley, Hospital Assistant; Ms Marion Lindsay, Enrolled Nurse; Ms Susan McIver, Executive and Nursing Direction; Ms Melanni Bridges, Trainee Enrolled Nurse. The Applicant's case

10 Mr Prior's evidence began with his witness statement marked Exhibit 1.

11 In respect of the incident which occurred on the 12th December, 2005, which was an evening shift commencing at 12.45pm, Mr Prior testified that it was part of his duties to administer the medication to residents, and he was required to deal with one of the residents, Mr D. That resident had a history of non-compliance with medication, refusing it, spitting it out and becoming physically and verbally aggressive when medication was given to him. 12 Around 5pm that afternoon, he gave evidence of preparing Mr D's medication while standing at the trolley, whilst other domestic staff were serving meals and placing them on the top of the trolley for collection by nursing staff to give to the residents. 13 Mr D was sitting restrained in a security chair, according to Mr Prior, just inside the door of the right-wing of the dining area. The back of his chair was against the wall, as was his right side of the chair, against the side wall, and to Mr D's left side, was another security chair unoccupied. He annexed a map to his affidavit, intended to indicate the layout just described. 14 Mr Prior gave evidence that Mr D was playing with a magazine, which was preventing Mr Prior from placing the meal down on the tray in front of him. He removed the magazine and placed the meal in front of Mr D, and at that stage Mr D leaned forward and punched Mr Prior in the left upper arm with his right hand, and then grabbed his shirt on the left side, with his right hand. 15 Mr D had used sufficient force in grabbing the shirt that Mr Prior thought that the shirt might tear, and he took hold of the resident's right hand with his right hand, and pulled the fingers and hand away from his chest and shirt, and pushed the right arm back towards his body. He next returned to the medication trolley on the left wing side area and completed the medication round. He looked back and saw that the patient was using a spoon in his left hand and had commenced his meal. 16 It did not occur to Mr Prior to complete an incident report as the aggression displayed by Mr D on that day was mild compared to his usual aggression, and he himself was not injured. Moreover, he testified that it was not his normal practice to report such minor instances, as they were extremely commonplace in the Arcacia Unit where Mr D was resident. 17 He gave details of the history of Mr D as a sixty year old with possible dementia, a history of alcohol abuse and standing at approximately five foot seven inches tall with an average build, but physically fit. He maintained that Mr D had a history of daily unprovoked physical and verbal aggression towards staff and other residents. He was resistant to personal care on a daily basis and became aggressive when that was attempted. Three to four nursing staff were required to attend to him for personal care and toileting. He was present when two recent incidents involved Mr D being physically restrained by four staff, including Nursing Unit Manager, Matthew Coventry, for the purpose of taking blood. On both those occasions Mr D kicked, yelled and threatened staff in the presence of the Nursing Unit Manager. 18 Finally, Mr Prior also gave evidence of his attempts at procuring other employment and the earning in that other employment since dismissal. 19 Over the objections of Mr Paul, the applicant gave evidence in his evidence-in-chief to deal with an additional aspect of the alleged lack of training he received to deal with challenging behaviour of patients. The applicant was allowed to give the evidence on the basis that the respondent should have an opportunity to provide sufficient rebuttal. 20 Ms Howell submitted that the applicant had asked about documents relating to training and notice to produce to the respondent on the 16th January. 21 The applicant testified that he had not attended any training sessions on issues of managing aggression in the workplace. 22 Mr Prior gave evidence that whilst he attended an orientation training day on the 30th January, 2003, he denied under cross-examination attending the whole course, because he missed one day of the course because of the Waterfall train disaster. 23 He could not recall seeing certain slides put to him by Mr Paul as being presented on that orientation course. 24 In respect of the incident on the 12th December, the applicant denied in cross-examination that he had actually struggled with Mr D. 25 Mr Paul took the applicant to a document marked MFI 1 Safe Working Environment, which he described as a policy document. He was taken to the section marked 10.13 headed "Internal Reporting Requirements". Mr Prior denied ever actually reading the requirement for him to report incidents of aggression. 26 He went on in his cross-examination to contend that he was not aware of the requirement to report as "not really, no, because we tended to report them as we felt they were warranted and that would go for every staff member. We didn't record everything." 27 He was taken to the fact that on the 26th November, 2005, he chose to report another incident with Mr D, where that resident bit him on the upper left arm. He distinguished that incident because he had to fill in an incident report for himself, in case there was further injury or infection, and to safeguard his welfare. 28 Mr Prior denied not recording the incident on the 12th December because he thought the resident was not aggressive, and thought that it was not the only incident that he probably did not report at the time, at Garrawarra. He agreed that he did not report the incident because at the time he did not think it was significant. When put to him that he did not record the incident because other staff would have been required to say what they saw, Mr Prior suggested that they would probably not have seen. 29 He agreed with the proposition put by Mr Paul that a nurse does not need a policy to tell them not to hit a patient. He also agreed that when he went to Garrawarra, that he either knew then or soon afterwards that the patients had what might be called challenging behaviours. 30 In respect of the effect of the restraint chair in which the resident Mr D was positioned at the time of the incident on the 12th December, the applicant described the effect of that as being, "it's a chair with arms and it has a table that locks into the arms so the resident basically cannot walk around. Restrains the resident from moving around the unit, the cottage, whatever you like to call it." 31 He went on later in his cross-examination to suggest, however, that the residents were still capable of sliding out of the chairs and that they could also stand up in them and could kick nursing staff, and could still punch the nursing staff. He claimed to have noticed that they do slide out of such chairs. 32 He claimed that he had simply walked away once he had released the patient's grip on his shirt. 33 He again claimed that that particular resident displayed invasive behaviour and also interfered with other residents. 34 He denied that the usual practice in such places was to keep chairs away from the walls to avoid patients hurting themselves by banging themselves against the wall, and again claimed, that Mr D's chair was up against the adjacent wall, which was intended to deal with the question of the ability of others to have observed what they claimed to have observed. 35 In answer to the question as to whether, at the time of preparation of his written statement, and the time of the letter from the NSW Nurses Association on the 5th January, 2006, that he had seen the statements of the various witnesses, he answered, "yeah, probably - I think so. Yeah, because I'd seen them at the union office, yeah." 36 He denied that he had structured his statement to reflect on how to deal with the statements of two of the witnesses that he had twisted back Mr D's right arm. 37 He explained the fact that he had not raised the issue of the alleged positioning of the chair against the adjacent wall and against the far back wall at the time when he had two chances to explain himself on the basis, "so what's - I don't understand what you're getting at, sorry," and went on further when it was explained, " I just put in the statement where he was seated at the time". 38 He denied exaggerating the extent of Mr D's aggression towards him.

39 He confirmed that his action with Mr D's arm was no more than, "no more than a pushing of his right arm away" and that he had prised the fingers of Mr D from his shirt and moved his hand away. He denied that there was a difference in those two versions. 40 When taken again to the issue of why he did not report the incident, claiming that on many occasions he had not reported such incidents, but acknowledged that if you, "if I'm guilty of not doing that, I'm guilty of not fulfilling my obligations to do the incident reports, yes." He agreed that he had made no other comments to anyone in the area at the time, and when tested on that, claimed that whilst he would not say it was trivial, he focussed on finishing his medication round. 41 He could not recall seeing anyone at the time, and did not take much notice. He only observed the resident later because he wanted to see if he'd taken the medication and disagreed that he wanted to ensure that the patient was not complaining of a sore arm or acting as if he had a sore arm. 42 He denied that he was grimacing at the time of applying force to the resident's arm. 43 The applicant denied Ms Sandra Bowley's statement of observing him "use an open hand and hit (D's) head on the left side and he then punched Mr D on the right arm and then bent (D's) right arm". 44 Similarly when put to him what Ms Tracey Fitzgerald thought she saw, which included the applicant striking with his "right hand in the direction of Mr D" and heard a hand hitting something, but did not see it happen, he claimed that this was also wrong. 45 Likewise, the statement of Ms Margaret Bowley was wrong when she says that she saw the applicant swing his arm towards Mr D. 46 In re-examination, Mr Prior was taken back to the reporting system known as the IM System, which he claimed was very time consuming and sometimes thought that it was not warranted, and if he reported every incident that had happened, he would not "leave the computer in the staff room…..the residents are of an aggressive nature and things happen all the time." He judged this on the basis of the severity of the incident. 47 Exhibit 7 was a diagram drawn by the applicant on his recollection of where the resident Mr D was positioned at the time of the incident in relation to the layout of the room.

The Respondent's Evidence 48 The first witness for the respondent was Mr Matthew Coventry, the Nursing Unit Manager (NUM), whose affidavit was marked Exhibit 8 in these proceedings. 49 In that affidavit Mr Coventry outlined how on the 13th December, staff had spoken to him about an incident involving the applicant on the 12th December, which led him to report the incident to Ms Susan McIver. At approximately 1pm that day, a meeting was had with Mr Prior and attended by Mr Coventry, Ms Lyn Hamilton and Ms Paula McShane. A note of the meeting as an accurate record of what occurred was marked Item 1 in amongst the documents which constituted Exhibit 6, marked Respondent's Bundle of Documents. 50 In that note, Mr Prior had claimed to his superior officers that the resident was known to have aggressive behaviour, and acted aggressively towards him. He was placed in a situation where he had to defend himself and he had done so in an acceptable manner. He did not report the incident because it was a very common occurrence and that the reporting system was long and tedious and he was busy. 51 Mr Coventry had prepared a summary of what had happened on the 12th December as reported to him by staff member Tracy Fitzgerald, and went on in the report which is Attachment 10 of Exhibit 6, to say how Enrolled Nurse Marion Lindsay had come on duty and also approached him expressing concern about what she had witnessed on the previous evening, although saying that she did not see the incident, but saw other staff members looking upset at what they had witnessed involving the applicant and the resident, Mr D. 52 Following the conversation with Ms Lindsay, Mr Coventry's report dated the 14th December at Attachment 10 of Exhibit 6, went on to say that he had spoken to other staff members on duty, which included Sandra Bowley, Trainee Enrolled Nurse, who had informed Mr Coventry that she had seen Mr Prior hit back at the resident and grabbed the resident's arm and twist it. The report went on to say that she had spoken to Margaret Bowley, General Services staff member, who did not see the whole incident, but did witness the applicant twist the resident's arm. Ms Sandra Bowley had informed him that she had actually witnessed Mr Prior slap the resident across the head and punched the resident in the arm, which had also been reported to the Executive and Nursing Director. 53 Mr Coventry gave evidence that the applicant had used the Incident Injury Management System to report on a previous occasion when the same resident had bitten him. In that area, he gave evidence that "exceptional items are to be recorded in clinical notes" which he understood had an importance as to how Commonwealth funding might be granted, and therefore it was important that records of what occurs with patients be properly recorded. He was surprised that no entry had been made as it was easy for nurses to make such entry on the notes. He testified that it was routine and usual for record of incidents of aggressive behaviour of residents to be carried out on those clinical notes. 54 He also testified that he often discussed behaviour management strategies with staff because they can become aggressive and violent. He always reminded staff that if residents acted in an aggressive manner they should remember that it was "the disease and not the resident" and not to take it personally. He was sure he discussed these issues with Mr Prior. 55 He was involved in the taking of photographs of the area concerned which was Item 18 of Exhibit 6. 56 Under cross-examination, he gave details of what he described as a vast range of behaviours from the residents at Garrawarra. 57 In the case of the resident, Mr D, he believed that he had suffered delusional thoughts in regard to his wife, and was becoming quite aggressive towards her, which resulted in his admission. Mr D was 61 or 62 years old and fairly fit, physically. 58 He gave evidence that he first became aware of the incident when approached by Ms Tracey Fitzgerald on the 13th December, and agreed that Enrolled Nurse Marion Lindsay had also come to see him shortly after that, to speak about the incident. Whilst he heard from other staff that they had "sort of had a look at" the resident Mr D, there had been no examination of the resident to see if any damage had been caused by the alleged actions of the applicant. Ms Sandra Bowley advised that she had examined the resident, although gave him no details of what steps she had taken. 59 He advised that Marion Lindsay had advised him that Sandra Bowley had spoken to her on the way home that evening, because she was upset about what she had seen. Ms Sandra Bowley was the first one spoken to by Mr Coventry after those initial reports. He agreed that Ms Bowley had reported that the applicant had hit at the resident and grabbed the resident's arm and pushed it, and that this had been reported at the initial interview, although also mentioning that Mr Prior had taken a magazine at the time. 60 Mr Coventry testified that after advising the applicant of his suspension from duty on the 13th December, he individually spoke to staff, asking them to provide a statement. 61 He could not recall as to whether or not he had spoken to Sandra Bowley about some difference between her original statement and that later produced by her, where she claimed that she had actually witnessed Mr Prior slap the resident across the head and punch him in the arm. The first time Ms Bowley had reported the incident, she's said that Mr Prior had hit back at the resident and grabbed the resident's arm, but from what Mr Coventry recalled, she had said that Mr Prior had hit as well as punched the resident. 62 In cross-examination, Mr Coventry was taken to the issue of the Departmental Policy on the training of staff in managing the challenging behaviours, aggression and violence, and as to the question of what basic training and further training is provided to employees generally in that area. Mr Coventry suggested that there was not a lot of formal training, but there were informal discussions with staff on how to deal with certain residents at different times. He agreed that he, as Nursing Unit Manager, was responsible for that training. He knew that the applicant had had training on an annual basis in 2004, from what he remembered from the applicant's training records, but could not actually remember training him personally. There was a two day orientation course and part of that course involved communication with residents and the way staff should interact with residents to diffuse situations before they become physically aggressive, although the course did not focus on physical aggression as a major part of it, and as to how staff were trained to deal with actual physical violence. He suggested that there was not a major focus on the training as staff were encouraged to step away from violent situations and move away. There was a section on Manual Handling, on how to hold residents to prevent physical aggression. He agreed that the session was a one hour session, although he knew of other courses designed for behavioural management, but could not go into detail about those courses. He gave evidence that there was no course specifically designed for aggression management at Garrawarra, and aggression management is a part of a whole package. 63 The Dementia Management Courses spoken of by Mr Coventry were qualified on the basis that there is no real focus upon aggression because it was only one area, that was only part of overall management process. 64 He was taken to a document headed Training Program, a Safer Place to Work Preventing, Managing Violent Behaviour, which was a New South Wales Health document. Mr Coventry recognised the document and said that a member of staff from Garrawarra had attended the training program some time before, and after consultation between the staff member attending that training and the Director of Nursing, a safer environmental program was developed. 65 Mr Coventry was taken to the fact that there was an eight hour first module of that course dealing with risk assessment process, but all he knew of this situation was that a staff member had attended the training. 66 Exhibit 9 was at that stage tended, titled, Aggression and Violence Management, which is a policy document adopted from the South East and Sydney Area Health Service adapted to meet the requirements to meet the Garrawarra Centre. Exhibit 10 also tended at that stage, was a document headed, Policy Direction - Training Program - A Safer Place to Work; preventing/managing violent behaviour/New South Wales Health. 67 MFI 2 was a document described by Mr Coventry as a record of in-service training attended by Mr Prior, included in which was a module called Working in a Safe Environment, which had an aspect of behaviour management in aggressive situations. Also, there was a section dealing with Manual Handling Training. 68 In the document MFI 1 was a program "working in a safer place" which again was described by Mr Coventry as in-service training. Both those documents were marked Exhibits 11 and 12 respectively. 69 Mr Coventry gave evidence that the document marked Exhibit 9 headed Garrawarra Centre Physical Environment and Safety System Standard No. 4 was available to Mr Prior whilst working at Garrawarra and was described as an Occupational, Health and Safety Manual, which he claimed would have been at the Nurses' station.

70 Ms Fitzgerald gave evidence that she saw Mr Prior grab Mr D's right forearm (which was a correction to her statement). 71 In respect to the first question in cross-examination in respect of the violent tendencies of Mr D, Ms Fitzgerald gave evidence that he did "tend to be a little bit aggressive at times, you know, if his personal space was invaded, things like that". She could not recall any specific incidents with Mr D, but thought it was a general thing that occurs with a lot of the residents from time to time, which she claimed staff would get used to seeing, and upon clarification, sought by Ms Howell, Ms Fitzgerald said that she believed that some dementia patients become a bit aggressive when personal matters are attended to. 72 She had never previously reported any specific incidents other than the incident on the 12th December, 2005. She agreed that she had a duty to report aggressive behaviour, but had not previously made a report. 73 In respect of the incident involving Mr D, Ms Fitzgerald gave evidence that he was restrained in a lock-up chair. She gave the opinion that all the applicant needed to do was to step away from the situation "cause he wasn't in a threatening - you know, wasn't in a situation where he was any threat". She compared that with where residents were on their feet and becoming aggressive, and where they can attack and where staff have to defend themselves. 74 As to whether she had discussed the incident with any other staff member on duty on the 12th December, Ms Fitzgerald gave evidence that she did not, except for the exchange when the incident occurred with her partner in the tasks being undertaken, Margaret; (both looked at each other and, "yeah just - I think all I said was again, wow, that was a bit over the top"). The staff member Margaret agreed with her at the time. She did not believe that anyone could talk at the time as the environment went silent and tense and she described it as, "like you could cut the air with a knife". She repeated that she had not discussed the matter with anyone. 75 As to why she did not raise the matter with the Nurse Manager on duty at that time, she gave evidence, "I just wasn't sure what to do", but did approach Mr Coventry the next morning. 76 As to why she had changed her testimony from the original statement which said that she had observed the left arm of Mr D being grabbed to saying the right arm, she explained it on the basis that she did not know why, but now felt that it was definitely the right arm, but did not pick the error up when she signed the statement. 77 As to what was said at the second meeting with Mr Coventry, Ms Fitzgerald showed some difficulty in remembering, but believed that Ms Coventry had asked her and others to prepare a written statement, saying to them that he had a duty of care and needed a report of the incident, because it was serious as far as he was concerned, and told his staff that he could not simply leave the matter. At that meeting was Ms Sandra Bowley and Marion Lindsay, along with herself, held in Mr Coventry's office. She claimed that there was no discussion about what had taken place on the 12th and that Mr Coventry had simply asked the staff to prepare a statement. When taken to the question as to whether she had discussed the matter with Marion Lindsay, she said that she had acknowledged that she had briefly discussed the matter with Ms Lindsay, but it was more to do with what would happen if a formal statement was provided against Mr Prior, and where the matter would go from there. That occurred on the same day as the request from Mr Coventry, and she developed that further by saying, "we were concerned about Colin and, you know, the ramifications for him as well as, you know, um….." 78 She also denied seeing any of the other statements.

She gave evidence also that her first inkling as to the incident of the 12th December occurred when she overheard Mr Prior, who was the Registered Nurse on duty shout out, "don't you dare hit me" or words to that effect.

79 As to whether Ms Fitzgerald had spoken to Ms Margaret Bowley about what she had seen since the 12th, Ms Fitzgerald said that she believed that it may have been the following Monday and there was a discussion about just what had happened, the fact that they had to report it and were just concerned about it pretty much. She believed that they had both seen, "pretty much ……the same thing". She revised her estimate when that discussion took place to then being the following Thursday, having regard for the shifts that both of them worked. 80 As to the allocation of other staff members, Ms Fitzgerald believed that they were standing around handing meals out in the dining room, but could not remember specifically. 81 Attention was drawn by Ms Howell to her statement which claimed that she could only see the lower half of the resident, as he was sitting behind the protruding half wall, and also the top of the table and his torso, qualifying that by saying, "part of the bottom, part of his torso and his legs, yeah". She qualified that further by saying that she could see Mr D's arms as well and confirmed that she had seen Mr D lash out at Mr Prior and described the subsequent commotion as, "like a tussle between them". She had been attracted to the commotion after hearing Mr Prior say, "don't hit me".

Evidence of Sandra Bowley 82 In her statement marked Exhibit 14 to the Commission, Ms Bowley, who was an Assistant in Nursing, and progressing to Trainee Enrolled Nurse from September, 2005, gave evidence of being in the middle of serving meals to residents at the time of her observation of the incident on the 12th December, 2005. She was taking meals from the kitchenette to residents on the left side of the dining room. Near the kitchenette doorway, she observed the resident, Mr D and Mr Colin Prior's back, who was serving a meal to the resident. She observed Mr Prior take a magazine from Mr D's hand and then saw the applicant hit Mr D. At the time no one spoke about the incident, but the next day, she spoke to Marion Lindsay, who she thought went to Mr Coventry on her behalf, and shortly after, she was called to the meeting with Ms McIver, Mr Coventry and Lyn Hamilton, where she was asked some questions and where a file note was taken of the meeting, at the end of which, she was asked to write a statement. 83 Under cross-examination, she agreed with the proposition of Ms Howell, that the particular resident, Mr D, had a tendency to behave aggressively from time to time, and that she was aware of incidents being reported involving his behaviour and she personally had observed a few such incidents, which she agreed, were quite a lot. She was unsure as to whether he had behaved violently towards herself personally, and described, that if taken to the toilet, or given a meal, he would not want to go, and described his behaviour as "just resistive", going on to say, "just pulling away from you. He does strike out". She observed that behaviour also, and agreed that it was a lot of times. Unless someone was hurt, she would not fill out an incident report, but would report it to the RM, and write it in the appropriate resident's notes, but would not provide a written report, but repeated that she, always mentioned it to the RM. 84 When tested by Ms Howell, she could not recall how many times she had reported such incidents, and had no idea then, as to how many times she might have reported observing aggressive behaviour by Mr D, as she believed the unit she worked in had other aggressive residents, and did not always remember what she had seen, "because it's normal". 85 On the occasion of the 12th December, she did not report the incident immediately to the Nursing Unit Manager because that officer was not on duty and she thought she would speak to him tomorrow. And again, when pressed later, as to why she did not report the matter, she gave evidence, "I just didn't know what to do. I really just didn't know what to do. I was upset, I just didn't know what to do". 86 The witness was taken by Ms Howell to the fact that she said at the interview with Ms McIver, that she had thought that Mr D's arm had been broken in the exchange. She gave evidence that the resident did not move his arm afterwards, so she had gone back over where he was eating, to see if he was moving it, and observed that he was okay. She had not immediately reported that aspect, because there were other nurses on duty and she was only a trainee, and again, observed that his arm was moving after a few minutes. 87 In respect of what was discussed between her and other staff members, and with Mr Coventry, the next day, she said, "I think that was more talking about what could happen or something". 88 When pressed on the same issue, she gave the response, "well, it wasn't like an official interview, I was just telling him. Then he just told me that it was serious and I'd have to go and speak to Sue, and I told Sue". 89 Ms Bowley denied discussing with other staff members the incident of the previous day, except the discussion with Ms Lindsay after work, and she thought she had prepared her statement the very next day. 90 She denied talking to Ms Fitzgerald about the incident, when interviewed with Mr Coventry. 91 Ms Bowley was taken to the fact that she was recorded as saying that, "the other TAN saw it, I know she saw it". She explained that on the basis that, "just the look on her face", meaning Melanni, and reaffirmed that Melanni had seen something that had upset her, but had no discussions with Melanni about the matter. 92 Ms Bowley confirmed that she remembered hearing the applicant say, "don't hit me". 93 She disagreed that Mr Prior had simply taken hold of Mr D's hand or arm to remove it from his shirt, and denied deciding to add to things from the initial interview with Mr Coventry. She also denied that she'd disliked Mr Prior, and was motivated to exaggerate on that account. She admitted saying at the interview, that she had thought Mr Prior was a bully, but agreed that no one had asked her about that aspect of her comments. As to what she had immediately observed, she gave evidence, "well, I heard him yell, don't hit me, and it was just like a tussle with a magazine". She thought the incident lasted some thirty seconds, during which she just stood there. She could not assist when shown the plan of the area as to exactly where she was. 94 She believed that Mr Prior had slapped the resident with his right hand, and had also punched the resident with his right hand, although admitting that she had trouble remembering. She was less certain when pressed again, but did not know which hand Mr Prior used to bend Mr D's arm. 95 When asked what movement was employed in respect of the twisting of the resident's arm, she gave evidence, "like, sort of bent it, bent it, like twisted, that's what bent - same thing".

Evidence of Ms Margaret Bowley 96 Margaret Bowley provided a statement to the Commission which is marked Exhibit 15, showing that she had worked as a Hospital Assistant for some eight years at Garrawarra, and going on to say what she observed on the evening of the 12th December, in respect of the incident for which the applicant was dismissed. 97 At paragraph 5 of that statement, she dealt with the typed notes of the interview held with Ms McIver and other officers on the 13th December. She gave evidence that she did not see Colin Prior hit the resident, "but I did see him reach out and grab the resident's arm and push it to the table". 98 In attachment 8 to Exhibit 6, which was a record of interview with Ms Margaret Bowley, her evidence was of seeing the resident reach out and then observed Mr Prior hit back at the resident, which she considered to be a knee jerk reaction. In that report she also said that she did not have a full view of the resident, as it was blocked by the part wall, and only saw the resident's arm, but could clearly see Mr Prior. She saw Mr Prior grab the resident's right arm and twist it. As to whether she had seen the resident actually strike Mr Prior, she had reported at the time that she did not see whether there was any contact by the resident to Mr Prior. She also said at that interview, that she had not seen Mr Prior behave in that way before, and that she had commented to a colleague with whom she was working at the time, "that was a bit over the top". Her report, requested of her (at Tab 9 of Exhibit 6), claimed to have seen the applicant grab Mr D's arm, which she thought at the time was a bit rough, in view of the fact that Mr D was in a restraining chair, and that she felt that Mr Prior could have taken a step back, and confirmed in that report that she had never seen Mr Prior act aggressively towards a resident before. 99 In cross-examination, Ms Margaret Bowley, claimed not to have spoken to anyone about the incident prior to her interview, and did not hear anyone else discussing the matter. 100 At the initial meeting with Mr Coventry, she thought that Ms Sandra Bowley and Marion Lindsay had been present, and he had simply asked her what had happened the night before. She had gone home and prepared the report, which she had given to Mr Coventry the next day. 101 As to exactly what she had seen on the 12th December, she gave evidence under cross-examination that she could not see all of the resident's actual body, but she could see his arms on the table, and as to whether she had seen Mr D's arm swing out to hit Mr Prior, she gave evidence, "well, he'd lifted his arms. I just assumed that was what he was doing". She was unsure as to whether, when she saw Mr Prior swing his arm at the resident, as to whether it was simply to put Mr D back into the chair. She then saw Mr Prior grab Mr D's arm, which she thought was, "a bit rough" because she thought that he could have taken a step back. 102 It was put to her that Mr Prior, had been forced to release Mr D's hand from his shirt front, but Ms Bowley gave evidence, "I don't remember that" and as to whether she thought it was possible that that had happened, she gave evidence, "I don't know". She went on to say, "I don't recall. I mean, I don't remember ever having seen Mr D grab hold of Colin". She thought that the resident's right hand had been grabbed by Mr Prior. She could not be certain as to whether Mr Prior had used his right arm or left arm to grab Mr D. He had grabbed Mr D by the wrist area, "well, he pushed it down onto the table with more force than I thought would have been necessary". She repeated that she could not remember the resident's arm being on the applicant's shirt. 103 She could not recall saying at paragraph 5 of her statement that she'd observed Mr Prior hit back at the resident. She could not recall saying that, and neither could she remember saying that she thought that this was a knee jerk reaction, but went on to say, "I heard a noise, but I wouldn't be able to tell you what it was that was said". 104 When pressed as to how the arm of the resident had been twisted, she gave evidence, "whether it was twisted or pushed, I can't actually remember, but I do know it was pushed down onto the table", and when tested further on that issue, gave evidence, "I think that what I was referring to was that it sort of - he's grabbed the arm and twisted it down on to the table, like, that's what I was meaning, he's twisted it down like, like pushed it" and further clarified, "….gone from facing that way to being twisted down to that way more so". Evidence of Ms Marion Lindsay 105 Exhibit 16 was a statement prepared for the Commission by Ms Lindsay in which she indicated that she was an Enrolled Nurse commencing at Garrawarra in the December, 2004. 106 She gave evidence that on the way home, travelling with Sandra Bowley, Ms Bowley had mentioned the incident involving the applicant and the resident, Mr D, and the next day she had gone to Mr Coventry and told what Sandra Bowley had told her the evening before about the incident. She was interviewed subsequently by Mr Coventry and Ms McIver, with Ms Hamilton taking notes, which were at Tab 6 of Exhibit 6. Those notes show that Ms Lindsay reported that at the crucial time she had her back to the residents, looking at a list when she heard a commotion behind her, and when looking up, saw the expression of shock on Tracey Fitzgerald's face and when turning around, saw Sandra Bowley with her face in her hands, and Margaret Bowley walking away. The report then goes on to say how Ms Sandra Bowley had told her about the incident on the way home, but that she herself had not actually seen the incident, but saw the reaction of other staff. 107 At Tab 7 of Exhibit 6 was a handwritten report provided to Ms McIver, which again merely referred to the fact that she had observed other people's faces in respect of the incident, and that they had been in a shocked state. 108 In her statement to the Commission, which is Exhibit 16, she again restricted her comments to what she had observed on other people's faces, saying, "I was facing domestic staff, Tracey and Margaret. They both had concerned looks on their faces. I turned around and saw Nurse Sandra walking towards the kitchen with her face in her hands". When told about the incident on the way home by Sandra Bowley, she'd advised her to speak to Matthew Coventry. 109 In her cross-examination, she agreed that Mr D was known to have aggressive behaviour from time to time. 110 In respect of what sort of incidents she would report, she gave evidence, "I 'd report an incident that was aggressive as far as if he actually hit someone. I think, we're probably much used to - we deal with aggressive people on a daily basis". She went on to say, "we write in the notes". She thought that Mr D would attempt to hit staff on a daily basis. 111 She denied speaking to anyone about what had occurred between Mr Prior and Mr D and that the first discussion with anyone had been when Sandra Bowley had raised the issue with her on the way home, and it was only then that she had realised why Tracey Fitzgerald and Margaret Bowley had a concerned look on their faces during the incident with Mr D, and when pressed on that issue, said that, "I think I was worried about what happened, I was worried about why they had their hands - why Sandra had her face in her hands, but I couldn't, can't honestly say why I - I probably didn't want to end up here". She repeated, "again, I didn't want to end up here". 112 In respect of the meeting in Mr Coventry's office, she recalled that Sandra Bowley, Margaret Bowley and Tracey Fitzgerald were present and that Mr Coventry asked about the incident, what people saw and who saw what, and that she had informed Mr Coventry that she had not seen anything, whilst Sandra Bowley, Margaret Bowley and Tracey Fitzgerald, did say what they had seen. She could only generally remember what was said.

Susan McIver's evidence 113 Ms McIver provided a statement to the Commission marked Exhibit 17. She had been the Executive and Nursing Director of Garrawarra since the 3rd May, 2004, until taking up another position in April, 2006. 114 Following a report by Mr Matthew Coventry, she arranged, in the presence of Mr Coventry and Ms Lyn Hamilton (who took notes) to interview Sandra Bowley, Tracey Fitzgerald, Marion Lindsay and Margaret Bowley, in connection with the incident which led to the applicant's dismissal. Following the initial report by Matthew Coventry, she arranged to have Mr Prior stood down on full pay pending the investigation. The notes of the interview held with those employees were contained in Attachments 2,4,6 and 8 of the respondent's Exhibit 6, and at the conclusion of each interview with the staff members, she requested they provide statements, which were also attached to the respondent's Exhibit 6 at Attachments 3,5,7 and 9. Another staff member, Melanni Bridges, was also asked to provide a statement, which was Attachment 11 to Exhibit 6. 115 Following those interviews, a letter was forwarded to the applicant dated the 14th December, marked Attachment 12 to Exhibit 6, which confirmed earlier verbal advice of his suspension on pay, pending the carrying out of a fact finding review into the allegation that he assaulted a resident, Mr D, on Monday, 12th December. 116 He was asked to attend an interview on the 20th December, and invited to bring an observer of his own choosing to the meeting, such as a union representative. He was told that he would have further opportunity to respond if the Area Health Service was contemplating disciplinary action against him. 117 The fact finding interview involving the applicant, Mr Prior, took place as planned on the 20th December, and minutes of that meeting were Attachment 13 to Exhibit 6. 118 Ms McIver also referred to a letter then sent to Mr Prior dated the 22nd December, which was Attachment 14 to Exhibit 6, advising him that the Area Health Service was considering taking disciplinary action against him, which could include his summary dismissal on certain grounds laid out in that letter. He was also advised that Ms McIver did not consider that his explanation of events set out at Attachment 13 was a true account of what had occurred, and he was asked to provide reasons why his employment should not be terminated on the grounds laid out in that letter. He was invited to provide a response no later than the 29th December. 119 Ms McIver also referred to Attachment 15 to Exhibit 6, which was a letter from the New South Wales Nurses Association on behalf of the applicant, dealing with the allegations. 120 After considering all of the material and in addition, Mr Prior's length of service with the Area Health Service, Ms McIver decided to terminate Mr Prior's employment, making a recommendation to that effect to the South East Sydney and Illawarra Area Health Service. 121 In her statement, Ms McIver stated, "although Colin Prior denied assaulting the resident at all, all other staff had seen him hit the resident in some way. Each of the staff gave a clear and straightforward description of what they thought had happened. Their versions were consistent and any minor differences were explained by the fact that each was in a slightly different position and the event happened quickly". 122 Ms McIver further stated that it was not possible to reconcile the applicant's version of events with that of staff, and on balance, she believed that Mr Prior had struck the resident. 123 She went on in her statement to talk about the fundamental duty of nurses not to assault residents, which is a principle applying, even in the absence of any code of conduct or specific warning. She thought that those principles particularly important at Garrawarra, where the residents were vulnerable and unable to call out in their own defence, or explain what had happened. 124 Ms McIver conceded in her statement that some of the residents had aggressive tendencies and that it is a part of the practice of nursing to be aware that those situations might arise, and to be prepared to respond appropriately when a resident is aggressive. 125 She further postulated that Mr Prior was not in danger, and could have stepped back if having any difficulty with a resident. Neither was he isolated, as the event occurred in the dining room with staff around, who could have assisted. 126 She did not think that although there was no record of any similar incident involving the applicant, she did not think that it was a case that could be overlooked, and because Mr Prior had denied any improper behaviour, his failure to acknowledge any wrongdoing was a factor in her decision. Attachment 16 was the written advice of the dismissal sent by Ms McIver, advising of his termination from the date of that letter, the 6th January. 127 During Ms McIver's cross-examination, she disclosed the Director of Workforce, Mr Felix Lidandowski had accepted her recommendation to dismiss the applicant and that he actually came and reviewed all the evidence which arose from the interviews, and read statements, including her recommendation, and endorsed the decision to dismiss Mr Prior. 128 She claimed to have arrived at the decision to dismiss the applicant only after interviewing the witnesses, and following the interview with Mr Prior, led her to believe that the witnesses were truthful, compared with the interview with Mr Prior, which gave him the opportunity to make his statement about what had occurred. 129 Exhibit 18 was tendered by Ms McIver which was a briefing note summarising the statements of witnesses, and containing her recommendation for his dismissal dated the 6th January, which was the same date as the letter sent to him referred to earlier, as Attachment 16 to Exhibit 6. 130 Ms McIver was taken in some particularity to the individual statements of the so called witnesses, beginning with the statement provided by Ms Melanni Bridges, who had included in her statement that she had seen the applicant's left hand come in contact with the left side of Mr D's face. In response as to whether or not she had interpreted coming in contact as actually striking Mr D's face, Ms McIver responded that she had looked at the whole picture and it was not simply Ms Bridges' statement alone, but agreed that she did rely upon Ms Bridges' statement, saying that Mr Prior had struck Mr D on the side of the face or head, but went on to agree that the words, coming into contact, might involve a range of different types of physical contact, but responded again that it was a part of a total consideration of the incident. 131 She was next taken to her analysis that four staff had independently confirmed witnessing the treatment of Mr D from the applicant, to which she responded that she had, "four staff who saw one incident. They were in different locations and saw different parts of a whole incident". 132 She was asked as to whether it might have been more accurate to say that, "four staff independently confirmed witnessing one or more of the following?" Ms McIver responded that she thought that such a proposition was semantics in view of the fact that four staff had confirmed the sightings with all of them seeing an incident of striking a resident. 133 She was then tested by Ms Howell as to which witnesses saw each of the incidents referred to in her briefing note. 134 In response to who the other three were who had independently seen the episode described by Ms Bridges of the applicant's hand coming in contact with the resident's face, the side of the resident's face, Ms McIver first referred to Attachment 3 to Exhibit 6 which was Ms Sandra Bowley's statement which said, "he hit Mr D's head on the left side, he then punched Jim on the right arm". 135 When pressed over that alleged striking in respect of Ms Tracey Fitzgerald's statement, who claimed to have only a passing view, and who said, "I saw Colin strike out with his right hand in the direction of Mr D", and although did not see the hand connect, said, "I did hear it connect" and "from the position of the two, I assumed it to be in the region of Mr D's head". Ms McIver was asked as to whether or not Ms Fitzgerald had made an assumption. Ms McIver responded that she believed Ms Fitzgerald had witnessed something which was consistent with the fact that a striking did occur. 136 Ms McIver agreed that in respect of that incident, that there had been no actual witness to that event. 137 She agreed that Ms Margaret Bowley, for instance, had not witnessed Mr Prior strike Mr D on the face or head, but disagreed that Ms Bowley had not seen him strike at all, on the basis of the quote from Ms Bowley's statement, "grabbed Mr D's arm", and whilst this was not an actual striking, it was an incident of aggression. 138 She did not agree that she relied upon Ms Margaret Bowley actually seeing Mr Prior strike the resident on the face or head, and drew attention to Ms Margaret Bowley's statement which talked about the applicant swinging his arm in the direction of Mr D; "I'm not sure whether to put him down, I was unable to see Mr D from where I was. I saw Colin grab Mr D's arm. I do remember at the time, thinking it was rough". She agreed that she had included Margaret Bowley's testimony in her statement that, "four staff independently confirmed Mr Colin Prior struck the resident on the face/head". 139 She also relied upon the fact that Ms Marion Lindsay had seen the reactions of staff, although not witnessing any actual incident. 140 Ms McIver's attention was invited to which witnesses had claimed that Mr Prior had struck the resident on the arm, and in the process had to agree that Ms Bridges had not said anything about striking the resident on the arm, claiming in the process that Ms Howell was looking at semantics and referred to the witnesses testimony of seeing the applicant twist the resident's arm, as well as a strike on the resident's arm. She was asked, who apart from Sandra Bowley had said that Mr Prior had struck the resident on the arm. 141 She further agreed that Tracey Fitzgerald did not mention the applicant striking the resident on the arm. She drew attention to the statement of Margaret Bowley, which is Attachment 9 to Exhibit 6, which stated, "Colin then swung his arm, I'm not sure whether to put him down, I was unable to see. I then saw Colin grab the arm". She went on to concede, however, that if a strike was relied upon, it was more in the way of a grab. 142 She agreed with the proposition from Ms Howell, that despite her reliance upon having staff witnessing in various ways, described differently, because it happened quickly, and they were extremely distressed at what had occurred, that it was necessary to establish precisely what had happened in the course of the incident. 143 Ms McIver was next taken to the letter to the Nurses Registration Board where Ms McIver had stated that, "four staff independently confirmed witnessing Mr Colin Prior strike the resident on the face and head or face, strike the resident on the arm and to twist the resident's arm". She conceded that it would have been better if she had included the words, "and/or". 144 She agreed that she had proceeded to make her recommendation for dismissal on the basis that all three allegations against Mr Prior had been proved i.e. striking the arm, the head and twisting the arm. 145 As to whether she had reached any conclusions as to whether Mr D had actually hit Mr Prior at any stage in the incident, Ms McIver said that she could not determine whether this had occurred or not, but that some statements from the staff had led her to believe that Mr D may have put his hands out, but Mr D was in a chair with a table in front of him, that is part of what she considered. She did not concede that she had concluded that Mr D did not hit Mr Prior, and she based her conclusion on the fact that some staff did mention that they were unsure as to whether it had occurred. She could not determine that question. When pressed further she said that even if Mr D had grabbed Mr Prior, there was still a question as to whether or not Mr Prior's reaction was appropriate. She denied avoiding questions as to whether she had reached a conclusion as to whether Mr D had hit Mr Prior, and referred again to the fact that no witness could actually definitely say that that had occurred, although Mr Prior said that that had occurred, and whilst she thought that there might have been some interaction, she was not convinced that Mr Prior's statement about what had occurred was correct, given the statements of the other staff. She agreed that she had formed the conclusion that Mr D did not hit or grab Mr Prior on balance, based on the witness statements which did not reach that conclusion, and could not confirm that Mr D had indeed struck Mr Prior. 146 When it was put to Ms McIver that she made a recommendation based on the conclusion that Mr D did not strike Mr Prior, she qualified that on the basis that she had terminated Mr Prior on the statements of the witnesses that they saw Mr Prior hit Mr D, and when pressed further, said that even if Mr D had hit Mr Prior, the witnesses had reported that Mr Prior struck the resident, not only once, but more than once.

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.

The Respondent's submissions 209 Mr Paul began the submissions on behalf of the respondent by taking the Commission back to the fact that the applicant had been heard clearly saying to the resident, "don't you dare hit me". It was significant that this was denied by the applicant in his efforts to minimise and trivialise what took place. 210 Mr Paul made an important submission that whilst the evidence of the various witnesses was different, it was nonetheless consistent. There was nothing worth commenting upon by way of inconsistency. 211 He addressed the heavy reliance placed upon training by Ms Howell on the simple basis that a nurse need not be trained to not hit a patient. 212 Neither was there any suggestion of how the applicant might have behaved differently had he been trained. 213 By way of mitigation of his losses, it was noteworthy that the applicant had not sought to look for employment in a nurses position in a supervised capacity.

214 The respondent, through Mr Paul, resisted any attempt by the Commission to re-employ the applicant and given that he had assaulted a patient, he should not be able to practice again. 215 Patients are well known to be difficult in that area of employment, such as resistance to being washed. 216 Although there was an arguable position that the applicant had missed out on some training, Ms McIver's evidence was that the applicant had at least received one hour training on aggression control, again though, training should not be necessary for such a basic obligation not to strike a patient. 217 In respect of the evidence before the Commission, Mr Paul referred to the fact that at least one of the witnesses said that everything went quiet after the applicant's handling of the resident, and that you could cut the air with a knife. 218 All the other witnesses claimed to have been involved in witnessing something of the event. 219 The respondent has agreed that the particular resident had aggressive tendencies, but the opinion of those witnessing the event were said by one witness to be bought home by the expression on the faces of others. He suggested that this alone was evidence that something extraordinary had happened. 220 It was significant that the applicant was the most senior member of staff on duty in the unit, and therefore this would have discouraged any of the witnesses from reporting the matter, although they could have gone elsewhere in the facility. 221 When Sandra Bowley spoke to Ms Lindsay on the way home, Ms Lindsay exhorted her to see Mr Coventry, the Nursing Unit Manager the next day. 222 At this phase of his submissions, Mr Paul referred to the Full Bench decision in the Health and Research Employees Association on behalf of Robert Grinan Vs Hunter Area Health Service, which at paragraph 31 provides a useful reference to other cases, and involve a security officer conceding that he had struck out at a patient. 223 Back on the issue of training, Mr Paul suggested that this was a late invention evidenced by the fact that the Association did not raise the issue of alleged inadequate training of the applicant, and the importance thereof at the conference held with the respondent on the 6th January after the applicant's suspension. Neither did the Association's letter of that date deal with the issue. 224 The applicant's simple response has been that nothing of the kind relied upon by the respondent, happened at all. On his version of events, what happened was of so little moment, that when he removed the resident's hand, he went about his business, and he did not report it. 225 The silence of the applicant in that regard was significant according to Mr Paul. Exhibits 5 and 9, which deal with the policy of reporting, meant that even if he did not report the matter in the INS System, he should have included it in the clinical notes. The applicant, for instance, had made such a note on the 4th December concerning that particular resident. 226 In respect of the Grinan case referred to earlier, Mr Paul said that the distinction between that and the present case was that Mr Grinan immediately apologised for his conduct and explained his behaviour. In that decision, His Honour Deputy President Harrison, commented on the need for extreme mitigating circumstances, but in that case, had taken into account the ready admissions of the applicant. By contrast, Mr Paul referred to the fact that the Association's letter of the 6th January completely denied that anything significant had taken place. 227 This case must be considered in the context that the applicant has not acknowledged anything in his response to his employers.

228 As far as the issue of warnings raised in Ms Howell's submissions, Mr Paul queried the relevance of warnings in such situations.

229 In another case referred to by Ms Howell, NEAT Holdings 1992 (110 ALR 449) a tribunal needs to look at the balance of circumstances. He distinguished the case of Briginshaw referred also by Ms Howell, on the basis that there were no witnesses and the inference to be drawn from other statements was relied upon. 230 In this case there were four witnesses, and their evidence is sufficient to discharge the onus obligation upon the respondent. 231 Likewise, Mr Paul distinguished another case referred to by Ms Howell of Humphries Vs Cootamundra RSL (2003) NSW IR Comm 211 (29th July, 2003), on the basis that the Full Bench had understandably suggested that the respondent needed to provide documents and dockets, dates and timesheets, to enable the applicant to give a fair response. 232 Mr Paul referred to the fact that the resident was in a security chair at the time, and Mr Prior was therefore under no threat from that particular resident.

233 As to the criticism of the respondents by Ms Howell that the initial investigation was carried out by the Nursing Unit Manager as a joint meeting of witnesses, Mr Paul suggested that it was entirely appropriate that the respondent speak to all of those involved. Mr Coventry, by the same token, only approached things in a very general way with the witnesses. 234 It was never put in this hearing that the witnesses actually made things up. All witnesses were one hundred percent right in their evidence. 235 The employees concerned were interviewed the next day, so that there was less risk of contamination in respect of how long this matter might have been protracted. 236 He refuted the alleged contradiction by Ms Fitzgerald's evidence on the basis that she had never said she saw everything. She did see him walk over to the patient, and it was open to conclude that she saw him do so, and then her attention was attracted by the noise. 237 As to the fact of the so called "tussle" didn't take long, this was no indication that nothing happened. 238 He referred to the evidence of Ms Fitzgerald at tab 5 of Exhibit 6 where she said, "Colin grabbed with both hands and twisted….."

239 He suggested that the evidence of Ms Margaret Bowley of the arm being twisted by the applicant, showed real aggression and over the top behaviour, and it could not be said that he simply placed the arm downwards. 240 It was significant that nothing was said by Mr Prior to anyone in respect of the incident, and the reason for that was that he may have had to formalise a report.

241 Mr Paul took issue with the allegation that Ms Sandra Bowley was hostile towards the applicant. He denied that there was any hostility and junior members of staff had given their evidence honestly. Ms Margaret Bowley had given a dramatic demonstration of pushing the arm down by the applicant. 242 The evidence of Mr Coventry showed that the respondent did not challenge the evidence of how the patients might be difficult at times and his acknowledgment of having heard of the statement, "it's the disease not the patient" was an indication of the guidance given to staff. 243 The evidence that the applicant had been heard to say, "don't you dare hit me" indicated the honesty of the evidence of the respondents' witnesses that they recalled such words from the applicant. 244 Mr Paul submitted that Sandra Bowley's evidence was unshaken and she had a good line of vision. 245 Tracey Fitzgerald gave evidence to the effect that she did not know what to do at the time. She also gave evidence of the applicant moving towards the patient, and that she did not see the resident grab the applicant by the shirt. She testified that the resident was attempting to pull back the magazine. Ms Sandra Bowley had raised the matter in the car and Ms Lindsay persuaded her to report it the next day to the NUM, which was indicative that the matters had truly occurred. 246 There were three witnesses with consistent versions of the significant issues. The fact that none saw the incident from go to woe and was slightly different, should not be seen as some detriment. 247 He again referred to the training issue relied upon by the Association as a red herring. 248 In respect of the witnesses, he again alluded to the fact that they'd given their own versions, which showed that they were not simply parroting back what they might have heard from others. 249 Three witnesses gave evidence of the applicant striking out at the patient, not withstanding that such action was unwarranted in the circumstances. 250 In reply to Ms Howell's submission that the emphasis by Mr Paul upon the statement, "don't hit me" is misplaced, the fact that the applicant did not remember saying it, does not mean there is an outright denial.

Applicant's Submissions in Reply: 251 By way of mitigation of his losses, the applicant had got some nursing work until the restrictions had come home to roost on him, imposed by the Nursing and Midwives Board. 252 While there was no evidence of vacancies in the organisation, it was known that some five thousand nursing positions existed. 253 Again, in returning to the theme of training, she referred to the duty of the respondent to provide minimum mandatory training.

254 Mr Prior may not have commented in the report of the incident, but neither did anyone else. Typically, Ms Bridges said that she simply moved on. She did not report the matter and the respondent failed to question Ms Bridges as to the degree of force involved in the contact made with the resident, which could mean that there was touching, slapping or punching. She again referred to the issue, the tussle involved, and the relevance of the fact it is difficult for witnesses to say exactly what they saw. 255 Returning to the theme of contamination, she referred to the fact that Ms Lindsay gave evidence that the matter was discussed openly. 256 It is human nature that they would become confused about their own recollections when they had been hearing others. The evidence shows confusion between Ms Bowley and Ms Fitzgerald and the changing of evidence in respect of whether or not they saw the applicant approach the resident, was significant. Ms Sandra Bowley's excuse for not looking at the arm of the resident, was inadequate. Therefore, she would be held to be severely negligent if she really believed something happened and therefore indicates that nothing out of the ordinary really happened. 257 Ms Howell asked the hypothetical question as to how the respondent would actually know the effects training might have on the situation if the applicant had been given his rightful training as required. 258 She suggested that the Commission could either accept that nothing happened or a whole range of matters could have happened and the precise nuances as agreed by Ms McIver are important.

CONSIDERATION 259 Attached to this decision is a schedule providing a brief summary of the key aspects of the interviews and reports of staff witnesses relied upon by the respondent in its decision to dismiss Mr Prior for misconduct. 260 That part of the respondent's case most difficult for the applicant's representative to counter was articulated by Ms McIver, who made the point in her evidence, that it was not possible to reconcile Mr Prior's version of events with those given by staff. Given that conclusion, of prime importance to her consideration was the fundamental duty of nurses not to assault patients or residents, which she correctly identified as a standard not needing to be bolstered by codes of conduct or specific warnings. She maintained that at Garrawarra, that principle was particularly apposite where residents were vulnerable and unable to call out in their own defence or explain happenings. 261 On the other hand, nursing staff, dealing with difficult residents sent to outside care, very often because family members could not cope with challenging behaviour of varying kinds, deserve the utmost respect in their chosen profession, and great caution needs to be exercised in assessing incidents of alleged misconduct towards such residents and patients. That makes it imperative that the respondent in the case be found to have discharged the shift of onus in the evidentiary sense with a high standard of proof, as so clearly established by the authorities referred to by Ms Howell. when it comes to dismissal for serious and wilful misconduct. 262 It hardly needs to be said that Mr Prior has suffered greatly as a result of his dismissal, resulting in the likely loss of a career, unless he has been fortunate enough to obtain nursing work, possibly with an element of supervision, if allowed by the Nurses and Midwives Registration Board, who had to be advised of the circumstances of his dismissal from Garrawarra. 263 There were some other elements contained in Ms McIver's testimony, consistent with other evidence, which were also of importance. Those included that Mr Prior was not in danger from the resident, Mr D, on 12th December, 2006; he could have stepped back; he was not isolated, with other staff in the room and finally, the fact that he made no report of the incident was interpreted by his employer as an attempt to avoid enquiry. His denial of anything like improper behaviour or anything verging upon wrongdoing of the kind verified by staff witnesses was a factor in Ms McIver's decision to dismiss. 264 Ms Howell laid out five grounds for the Commission's intervention in this case in her concluding address and generally attacked the respondent's evidence on a broad front (as dealt with below). To begin with, in respect of the main investigator, Ms McIver, she understandably challenged an aspect of the briefing note, (Exhibit 18), prepared by Ms McIver for Mr Felix Lidandowski, her superior officer and advice to the Nurses and Midwives Board (Exhibit 19), as misleading. Ms Howell claimed that the report and the letter to the Board suggested that all three acts of aggression were observed by all key witnesses. She initially responded by claiming that it was "semantics" to suggest her choice of words was open to interpretation when she reported to Mr Lidandowski and the Board that: " four (4) staff had independently confirmed witnessing: · Mr Colin Prior strike the resident on the face/head strike the resident on the arm twist the resident's arm. "

Under pressure from Ms Howell , Ms McIver was forced to acknowledge that it would have been preferable if she had used the words and/or in between the three alleged acts of assault.

265 However, the other evidence of Ms McIver was that Mr Lidandowski had actually visited and gone through the different reports of staff and accordingly, the ambiguity thrown up by the range of words used by Ms McIver, made it unlikely that Mr Lidandowski was misled to the extent of believing that Mr Prior had been observed by four staff to have carried out all three assaults upon Mr D. 266 As far as the Nurses and Midwives Board is concerned on this aspect, that is not sufficiently relevant to my consideration and could be a matter clarified directly by the parties if considered necessary. 267 The Nurses Association's letter of 5th January, 2006, alleged that the various statements prepared for the investigation were contradictory, also claiming, inter alia, that none supported all three of the alleged assaults and going into detail to point out what the Association regarded as several differences. That criticism, renewed in Ms Howell's final submissions, has not been a concern for the Commission, which has had to agree with Mr Paul's submission that it appears only natural that staff acknowledged seeing different parts of the whole exchange, depending upon where they stood and when they looked up. Those differences in fact made the accounts more realistic and credible. The real difficulty came in accurately assessing the various movements of both resident and applicant to ascertain if something such as the grabbing of the shirtfront proceeded by the hit to the applicant's arm as claimed by Mr Prior, could have been missed by honest observers giving their accounts in good faith. 268 It has been necessary to respond in some detail to the key points made by Ms Howell and Mr Paul in their extensive final submissions. 269 Firstly, in respect to the issue of training of Mr Prior, (claimed to be necessary to assist his handling of challenging behaviours from residents), that was not an easy aspect to determine, especially given the manner in which the matter was traversed. The subject was raised by the Association in a way that risked prejudice to the respondent, being raised and advanced on the day of hearing. Mr Paul was right to raise his objections and the Commission is not convinced that his client's preparation for an issue heavily accented by Ms Howell was adequate, in view of the limited opportunity to bring appropriately informed evidence. 270 As it turned out, it appears that the policy documents on training of staff to deal with aggressive behaviours received little allocation of resources by way of releasing staff such as the applicant to attend training modules on offer by the Department. But there was no evidence to compare the applicant with other staff. Mr Prior received around one hour training upon his induction at the Garrawarra location relevant to controlling aggressive behaviours, and was not able to attend the second hour due to unforseen circumstances. He did not apparently alert his employer to any need for greater training. There was the likelihood that such matters as aggression management were the subject of managerial reinforcement as alluded to by Mr Coventry and Ms McIver and with the availability of relevant material at the nursing station. There was a lack of evidence as to just how compulsory the training modules shown in Exhibits 9, 10 and 11 were, although Ms Howell described some as "mandatory". There did however, seemed to be a lack of vigour from the Area Health Service in implementing a manageable training program relevant to Garrawarra, although such adaptation to local needs was attempted in-house and as suggested by Exhibit 9.

271 Those doubts as to the adequacy of such training aside, the Commission has been persuaded by the basic logic relied upon by Mr Paul, and espoused by Ms McIver, which was to the effect that nursing staff do not need a structured training course to coach them into observing a primary principle of nursing care, not to assault persons in their charge. Basic to that was the fundamental obligation of care, to not physically assault residents in various stages of helplessness or suffering out-of-character dispositions. Whilst testing the patience of nursing staff, it hardly needs to be said that they cannot properly complain or advocate their cases, if subjected to any cruelty or violence of any sort from staff. That principle should be a self evident foundation for a career in nursing and generally not require formal training. 272 A lack of structured training could therefore only be relevant to a situation involving a more trivial physical exchange or a marginally unacceptable situation where for instance, serious provocation resulted in overreaction, but certainly involving less violence than contained in the overall allegations against Mr Prior, adopted by the respondent. 273 The Commission was troubled by the point made by Mr Paul, that there was no evidence of how formal training could have assisted the situation on 12th December, 2005, on the basis of Mr Prior's simple version of events; i.e. of being held against his will by the front of his shirt and having to prise the resident's fingers free. Noting what Ms Howell said in response to Mr Paul, I nonetheless find that training was unnecessary in such a simple scenario as claimed by Mr Prior. The Commission was therefore left to wonder why the Association laid such emphasis on the lack of formal training of the applicant, when it's contention was that nothing happened of any moment. Its case depended upon casting doubt upon the accounts of witnesses. The claim that nothing of note occurred was also said by Mr Prior to be the reason why he had not put in a report, and presumably why he did not include the incident in the residents/clinical notes, as other evidence showed, was often done, as well as, or in substitution of a separate report. 274 If it was the Association's intention to lead such evidence of lack of training to deal with a fall-back situation, such as the Commission perhaps finding that something in-between actually did happen, but slightly more violent than admitted by Mr Prior, that could likely be justified from Ms Howell's viewpoint on the basis that such a finding should have perhaps been arrived at by me. The lack of training would need then to be addressed as a safeguard for any appeal involving such an evidentiary outcome. Again, however, the elementary and primary duty of care and avoidance of excessive force in defence/restraint required in certain situations, makes the excuse of a lack of training very difficult to sustain if Ms McIver's findings are found to be correct. If, however, the Commission were persuaded that an in-between scenario did happen - presumably outside the memory or realisation of the applicant, perhaps blurred by the speed of the "tussle", there would be room to consider the lack of formal reinforcement of how to handle aggressive residents such as Mr D. 275 To take that possibility further, Mr Prior's insistence upon a very simple and straightforward version of events, limited to a hit to his arm from Mr D, followed by the need to extricate himself from the resident's grip to his shirt front, makes it very difficult for any dispassionate consideration of anything else happening. Such alternative events would have to fall somewhere between that relatively innocent situation claimed by him, and the other extremes thrown up by eyewitness' accounts from other nursing and domestic staff. 276 This was a telling point made by Ms McIver, who was motivated to conclude that she had no reason to disbelieve the staff witnesses, who she judged to be reliable during her investigation. Her denial of using undue pressure to influence witness accounts, which was an aspect still forcefully advanced by Ms Howell in submissions, has been accepted by the Commission. Such an investigation, involving some fairly junior staff, is a difficult exercise and is fraught with the danger of contamination either way, but I believe the mode adopted by both her and Mr Coventry was sufficiently at arms length and dispassionate. I am reinforced in that assessment after having the opportunity to view the witnesses being tested in cross-examination on a broad front. My findings as to credit are relevant to this point also. 277 However, the Commission nonetheless had difficulty balancing that finding with the emphasis Ms Howell placed upon the failure of Ms McIver to go back to the witnesses to satisfy herself on the applicant's contention of having been hit and needing to release the resident's hand from his shirtfront, belatedly raised in his own defence at 20th December interview (i.e. not mentioned at initial interview). Timing is of the essence in such sensitive investigations and the risk of Ms McIver going back to mostly junior staff with the specifics of Mr Prior's new claims was profound. Reluctant witnesses in the workplace might jump at the opportunity to provide an escape where it may not be deserved, by compromising their previously clear evidence of inexcusable excessive force upon a resident, particularly if they have become unpopular because of their reporting of a colleague. They might have even misunderstood a further approach from Ms McIver as an invitation to be more lenient or more harsh than they should be. The time in between 13th December and 20th December 2005 surely would have given rise to a much greater risk of contamination from each other, or from outside, than I believe could have occurred under the sequence that was adopted. 278 If the applicant been more forthcoming with his claims when he should have at the 13th December interview, and not waited until 20th December, those issues could have been quickly canvassed in a timely way if necessary around the time of the staff witnesses reporting, with much less risk of contamination. 279 This leads me onto the challenge by Ms Howell as to the credibility of some of the witnesses, but particularly one whom she described as more of an advocate to her own cause than of the truth. 280 The Commission has confidently rejected any prospect that that particular witness (Sandra Bowley) or indeed, that any of the witnesses exaggerated events observed by them, or allowed themselves to be influenced in what they said and put into their respective reports. I am sufficiently satisfied this did not happen either through conversation with one another or by the exhortations of the NUM, Mr Coventry, who took the initial report from Ms Lindsay and gathered the others together and asked them for individual reports, or from Ms McIver's subsequent investigative approach. In that process, he stressed the seriousness of the situation being revealed and apparently there was some discussion of events, although recollections varied. 281 After checking the individual testimonies on that point. I am satisfied that the style of discussion amongst the staff was not at the level interpreted by Ms Howell in her final submissions. There was certainly some discussion, at least in a general way, as testified, with warnings that a serious matter was at hand. The evidence of Ms Lindsay was that there was discussion by the group in front of Mr Coventry about what happened. The Commission recognises that a less than perfect opening of the investigation may have been put in train, at least at the initial meeting involving the NUM, Marion Lindsay and two other witnesses. However, against the prospect of contamination, was that all three main witnesses gave no clue of being influenced by anyone else and also maintained some very significant differences (although not contradictory) in what they saw from where they stood, through the interview with Ms McIver, in their written reports, and most importantly, under stout cross-examination. Ironically, as canvassed above, the likelihood of contamination was much greater in the ensuing period and made re-interviews, to check the applicant's new 20th January version a greater risk. 282 The respondent's key witnesses were cautious, yet fairly precise, although they appeared open to correction by Ms Howell, but the Commission is satisfied that there was no conscious effort whatever by Sandra Bowley, Margaret Bowley, Tracey Fitzgerald, Marion Lindsay or Melanni Bridges to exaggerate or fill in gaps from the others' versions. They certainly did not see each others statements.

283 Each of the witnesses impressed the Commission with their extreme reluctance to give evidence against a colleague. This was even obvious at the time statements were taken, and whilst Ms Howell contended that one in particular (Sandra Bowley) offered gratuitous advice of the applicant's attitude and behaviour to difficult residents, during investigation interview, that was not repeated in her statement provided the next day to the investigating officer, Ms McIver. I do not share Ms Howell's scepticism about any of her evidence, and certainly reject the suggestion that it would be unsafe to rely upon it for the reasons advanced by Ms Howell, which included that she was biased against Mr Prior.

284 The statement of Ms Fitzgerald that "part of me wishes I had said nothing" seemed to be an example of their mindset. Likewise, Ms Margaret Bowley's declaration that she had "never seen Mr Prior aggressive before" (wrongly attributed to Sandra Bowley by Ms Howell), was another, whilst Ms Sandra Bowley asked the investigator, "I've done the right thing haven't I", at her interview. Ms Lindsay didn't seek to immediately report her limited knowledge of what happened because she did not want to end up in this Commission. 285 A further instance of the reluctance to condemn Mr Prior was the concession by one (Ms Fitzgerald), that whilst she heard what sounded like a slap across Mr D's face, she later volunteered during her evidence that the sound could have emanated from a shoe being dragged across the floor. The style of that offering gave the impression that she was erring on the side of generosity, especially when one would imagine a distinctly different sound from the two motions. Nonetheless, her evidence as to the face/head slapping sound was weakened by that suggestion and the Commission has taken that into account, as further dealt with below.. 286 Reasons given for the failure of the witnesses to directly report the matter on the evening that it happened, and in two cases, to wait until approached by the NUM, (apart from Ms Lindsay being concerned about being caught out in the Commission on an unfair dismissal case) were mainly related to the fact that Mr Prior was the most senior on duty. The fact that the next most senior officer on duty worked elsewhere in the complex and was not easily accessible, was another reason offered, and that the (junior) staff seeing what happened, did not know what to do at the time. That evidence not only showed an understandable reluctance to be involved, but I believe it also put paid to Ms Howell's claim in cross-examination, that they did not think it serious enough at the time to report. Ms Bridges' evidence, quoted by Ms Howell, that the incident didn't qualify as serious enough to warrant reporting, must be considered in the context of her very limited observation of Mr Prior's hand coming into "contact" with the resident's face. 287 The way that the matter did actually come to management's attention was entirely convincing and understandable in the circumstances, but again, reflected the reluctance to see the matter result in disciplinary action. The catalyst was the initiative taken by Ms Lindsay the next morning in raising the matter with Mr Coventry, on the basis of what Ms Bowley raised on the way home the night before, and upon the basis of her own observations of the expressions on the faces (Tracey Fitzgerald and Margaret Bowley) or body language (Sandra Bowley) of the three main witnesses straight after the incident. 288 The ready acceptance and even volunteering by all key witnesses that the resident, Mr D, had a history of at least objectionable and resistive behaviour, was another indication to the Commission of their impartiality and that they would be careful to keep matters within the proper parameters observed. 289 The evidence of Ms Lindsay, in particular, was that the unit handles aggressive behaviour from residents on a daily basis. That line of evidence was offered quite naturally, and also indicated to the Commission that all staff should expect challenging behaviour, and be able to react in a measured way, which might include calling for assistance from other staff, such as were on deck during this incident, as suggested by Ms McIver. That also indicated that the physical reactions of staff observed by Ms Lindsay were the result of seeing unusual events, which shocked them. 290 Apart from the difficulty I have had with the failure of Mr Prior to raise the grabbing of the shirtfront and striking of him at the initial interview on 13th December (Annexure 1 of Exhibit 6), I was surprised that greater particulars were not offered after he received copies of the witness statements, which might have lent an explanation of why his version was so different. The applicant's evidence in this regard was therefore left as a fairly bald statement with no description as to how he managed to get into a position of having his shirtfront grabbed in the first place, as one would expect. That alone made the claim suspicious. 291 It was curious that the applicant did not include in his statements to the investigator, Ms McIver, or the Commission, that he had said to Mr D, the resident, "Don't you dare hit me". The evidence of several key witnesses of having been alerted to the incident by that statement was convincing, yet even when pressed by Mr Paul, his evidence was only that he could not recall saying it. The Commission must accept the evidence of Sandra Bowley, Tracey Fitzgerald and Melanni Bridges of hearing those words or similar, uttered by Mr Prior, which alerted them to something happening. 292 Mr Paul thought that this omission was motivated by the desire to downplay the seriousness of the exchange, as part of Mr Prior's primary case, that nothing worth reporting took place. That might also explain why he did not offer any expansion upon his version finally given at the 20th December interview (Annexure 13 of Exhibit 6) as mentioned above. 293 Given that I have accepted that such a statement was uttered by Mr Prior to the resident, and it was most likely the opening gambit, so to speak, I have attempted to reconcile that with the evidence of the applicant, that he was grabbed and held by the shirtfront until he released the resident's grip, which finished the exchange. 294 Mr Prior claimed that the resident had struck him on the arm before the shirtfront was gripped. The evidence of others barely supported him being hit as such, although the areas highlighted in Ms Howell's submissions and examined by me show a recognition that some sort of hitting was likely. The most probable flow was that either the resident reached out and hit Mr Prior (as he claimed) on the arm from the restraint chair, or was grabbing at Mr Prior's arm in an endeavour to retrieve the magazine taken from him, or that the resident swung from the chair intending to simply hit Mr Prior, depending upon the different impressions of the opening scenario. Either way, the uttering of the words, "Don't you hit me" or "Don't you dare hit me" was most likely to have occurred in between the grabbing at, the swing at or the hit (as he claimed) on Mr Prior's arm - and before the alleged release of the shirtfront. The significance of that fact then becomes that, if there was an actual grabbing of the shirtfront, the witnesses, (in fact all five who appeared with accounts of seeing different sections of the incident), should have seen the resident grab the shirtfront upon their attention being alerted by the cry, "Don't you hit me". All witnesses testified that the next thing that happened was some form of movement by Mr Prior involving the resident - but no gripping of the shirtfront by the resident. Despite thorough testing by Ms Howell, the key witnesses were adamant that they did not see such a thing, and it is fair to say, remained sceptical that the shirt was grabbed. That aside, it is unlikely that they would have missed such a thing. It should be mentioned again here that Ms McIver's failure to go back to the witnesses to check the shirtfront theory was found from hindsight not to be fatal to the respondent's case for the reasons enunciated above. The hitting upon Mr Prior was likely to have occurred, but in a fairly scrambled fashion and done from an awkward angle with little risk to someone standing, and likely inspired by trying to grab back the magazine as mentioned in evidence. 295 Accordingly, on the balance of probabilities, the applicant's exchange with the resident, Mr D, likely involved a hit or hits to, and grabbing at the arm of Mr Prior, although such would not have been very hard, given his position in the restraint chair. Less likely was a struggle involving the release of the hand of Mr D from the applicant's shirtfront, so crucial to the applicant's case. Even if such had occurred before anyone's attention was drawn to the struggle, the Association's case provided no explanation for the various physical contracts/assault witnessed to varying extents by all five witnesses (i.e. also inclusive of Ms Bridges seeing "contact" with the side of the face). Even Mr Prior himself denied there was a struggle, and more than one staff witness talked of a tussle over the magazine, and the resident "reaching" and trying to grab Mr Prior's arm. 296 A analytical summary of the multi faceted assault relied upon by the respondent is useful at this point, dealt with under appropriate various sub-headings as follows:

Slap to face/head: 297 On that aspect of the slap to the side of the resident's head/face, the Commission has been conscious of the clear evidence of Sandra Bowley on that point, albeit that she was doubtful at one point of whether it was the left or right side. Less safe, but not to be ignored, was the testimony of Tracey Fitzgerald, who said to Ms McIver, that she saw Mr Prior strike back and in her statement, saw him strike out in the direction of the resident, and although not seeing it connect, heard it connect. As already mentioned above, her account of this was somewhat tempered in the witness stand by suggesting that the noise she heard could have been someone's shoe scraping on the floor, although I have commented earlier that that seemed to be offered as a generous precaution, but if we discount the sound she said she heard in interview and in her report, that leaves a swing which she assumed to be in the direction of Mr D's head. 298 Ms McIver was entitled to believe that a slap to the head or face had occurred, and despite Ms Fitzgerald's qualification as to the sound she heard from a swing at the resident, which she assumed to be the resident's head, the Commission is satisfied through the evidence of Sandra Bowley that there was a slap to the head/face of the resident. 299 Ms Bridges was not tested by anyone as to exactly what she meant by saying in her written statement that she saw Mr Prior's hand come in contact with the left side of Mr D's face. Ms Howell exhorted the Commission to therefore disregard her evidence as meaningless - with the prospect of it being either a tap or a whole range of force. Be that the case, it is difficult to disregard her evidence entirely, in view of it being not inconsistent with and, taken with Sandra Bowley's clear evidence of a slap to the head, I believe there was such a striking. 300 Margaret Bowley told Ms McIver that she saw the applicant strike back after the "resident's arm reached out" to Mr Prior, and in her written statement said "Colin swung his arm, I'm not sure whether to put Mr D back down in the chair or what, as I was unable to see Mr D." That account and her treatment of it in cross-examination raised doubt that Ms Margaret Bowley had seen a slap to the face as such, but might have been related to the punch to the arm, witnessed by Sandra Bowley.

The Punch to Arm: 301 As to that so-called punch to the arm, as already mentioned above, Margaret Bowley's written statement cast doubt upon the purpose of the swing at the resident, which she thought might have been to put the resident back in his chair. Her evidence on that score is therefore of limited value, but not inconsistent with what Sandra Bowley observed. 302 Ms Fitzgerald's view of things lead her to talk about the applicant striking back, as dealt with above, and seems to have been more related to the so-called slap to the face or head, and should be disregarded as unreliable in respect to the punch, seen by Sandra Bowley.

Accordingly, the only reliable observer to this part of the exchange is Sandra Bowley.

The Twisting of the Arm 303 Three witnesses observed this more serious aspect of the assault, and whilst Sandra Bowley's account was the most vivid, Tracey Fitzgerald was also very clear in her description as to the force applied by Mr Prior to the resident's arm, saying in cross-examination that Mr Prior's face was "contorted". Margaret Bowley was less positive in her description of the severity of the twisting of the resident's arm, but her evidence does confirm that there was no mere removing of the hand of the resident as claimed by the applicant, and does not contradict the other two witnesses. 304 I have already discounted Ms Howell's suggestion of bias against Mr Prior by any of the witnesses, and her suggestion that this prejudice against Mr Prior was shown by Sandra Bowley's colourful description of thinking that Mr D's arm had been broken by Mr Prior, has also not been accepted by the Commission, as a reason to suspect her evidence. After all, Tracey Fitzgerald also said at her interview with Ms McIver, and in her written statement, that Mr Prior had held the resident's arm for five seconds and that there was a strain on Mr Prior's face (her interview) and varied that in her statement to say in addition to holding on for the five seconds, to say that she noticed that Mr Prior had a very angry expression on his face. In her affidavit Exhibit 13, she gave the description of Mr Prior's face being "tense like he was using force". In cross-examination she described his face as "contorted". Again, this was not inconsistent with Sandra Bowley's account of thinking that the resident's arm was broken and later checking to see he was using it. Other Aspects for Consideration:

305 There were some other aspects of the evidence which presented difficulties for Mr Prior. One of those was the testimony of more than one witness that the resident presented no real threat to Mr Prior, being in a restraint chair and that all he had to do was to move away. There was evidence from those witnesses already alluded to of Mr D either taking a swing at the applicant after the removal of his magazine, or having arms outstretched towards Mr Prior, or grabbing Mr Prior's arm - again apparently trying to retrieve his magazine. Not even Mr Prior claimed that he was out of his chair to any significant degree. Beyond those distinctly variable possibilities, the only real and sustained piece of aggression from the resident came from the applicant's insistence that the front of his shirt had been clutched, which I have decided was highly unlikely for the reasons stated. Even at the worst - if the resident had hit Mr Prior on the arm and grabbed him by the shirtfront (as opposed to the alternative moves by the resident, just described) those circumstances were a low level risk and not serious enough to deserve the assaults on the resident witnessed to varying extents. Those assaults have to be considered in the context that the resident was seriously restricted by the security chair, and others were around to lend a hand. 306 The comment by Tracey Fitzgerald to Margaret Bowley to the effect, "that was a bit excessive", was found by the Commission to be directly relevant to deciding that something significantly more serious occurred than claimed by the applicant. Likewise, the limited evidence of the less important observers, such as Ms Lindsay, who said "you could cut the air with a knife" and talked of seeing the body language of Sandra Bowley with her face in her hands, or expressions on the faces of Tracey Fitzgerald and Margaret Bowley, was something that the respondent was entitled to take into account. Even the look on Ms Bridge's face (observed by Sandra Bowley), who only saw Mr Prior's hand come into contact with the side of the resident's face/head was indicative. These pieces of what might be called subsidiary evidence confirmed that striking and force were applied beyond the applicant's claim. Combined with the more direct evidence of assault, this left the respondent entitled to contemplate the ultimate workplace penalty, having satisfied itself of the seriousness of the situation, that there was a serious enough assault upon a resident, when the evidence was that all he needed to do was step back (given that the resident was in a restraint chair). 307 Mc McIver's evidence did not disclose undue reliance upon doubtful sightings, as she was careful to say that she considered the overall picture. 308 Ms Howell took her to each alleged incident to have her particularise who saw each movement. Any tentativeness displayed on her part in answers was the result of the need to remember what had been said and written by four witnesses to actual assault. She was found to be a careful witness and readily conceded matters, for instance, that she had not obtained from Ms Bridges (who she did not interview because she was on leave at the time) the extent of the "contact" by Mr Prior to the side of the resident's face/head. Significantly, she claimed not to have relied upon that aspect, being satisfied of the other accounts, on that basis her failure to interview Ms Bridges is not as relevant as contended by Ms Howell, and the Commission is left to speculate upon the significance of the so-called "contact". 309 Although the investigation process involved a less than perfect approach, I am sufficiently satisfied that no major flaws were involved.

310 As to the severity of the penalty, Ms McIver was found to have properly considered the repercussions upon the applicant, and to have properly judged it deserving of dismissal.

311 In the circumstances of this case, the Commission is comfortable with the need for a high standard of proof, albeit still the civil standard (Wang v Crestell Industries Pty Ltd (1997) 73 IR 45) and the shift of onus enunciated in such cases as Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; the Pastrycooks {No.3} (1990) 35 IR 70; Franklins Limited v Webb (1997) 72 IR 257 and those other authorities relied upon by Ms Howell. 312 The Commission is satisfied that the respondent has discharged the onus which rightfully rested upon it, again as required by the caselaw provided to the Commission and listed on the coversheet of this decision, to show that Mr Prior assaulted the Garrawarra resident in a manner not capable of any other interpretation, adopted by the investigation, and after according an adequate opportunity for Mr Prior to answer the allegations. 313 I am satisfied that he punched Mr D in the arm, slapped him in the region of the head, and in quick succession twisted his arm in an aggressive manner, with little provocation. Such actions did not arise from a legitimate need to extricate the hand of the resident from his person and in the language of some of the relevant authorities referred to by Ms Howell, (including the Fire Brigades Case listed above). I have found that the conduct constituted a fundamental and wilful repudiation of the contract of employment after taking into account mitigating factors. 314 The respondent was shown through the evidence of Ms McIver to have relied on at least each of those incidents of assault, being witnessed by at least one member of staff and all three incidents being seen by one witness. The twisting of the arm was the most serious and contemplative action and on it own, was serious enough. That reliance was not misplaced.

315 It gives the Commission no satisfaction to support the findings of the respondent's investigation that an assault of the nature observed at various stages, and to a varying extent, occurred upon the person of the resident, supported by the evidence of more junior staff, tested by robust cross-examination. 316 In view of the implications to future career as a nurse and Mr Prior's six years of unblemished employment, I have given in-depth consideration to introducing an alternative and less severe a penalty against Mr Prior's actions, which might have involved a re-deployment to another centre, without compensation. In that process, I have been conscious of the requirements of caselaw again, helpfully provided by Ms Howell, which rightfully places an obligation to have regard to the effects upon an employee dismissed for misconduct. Franklins v Webb and Standley v Electronics Boutique Aust. Pty Ltd were two such cases containing that test. However, I have not been able to sustain a remedy involving a re-employment arrangement. 317 Unfortunately, as earlier alluded to, and again consistent with the findings of the investigation, no alternative explanation was available, given the limitations set by the applicant's case. 318 On that point I am reminded of the findings of his Honour Deputy President Sams in a case also involving dismissal for misconduct and failure to report an incident. There the applicant's evidence of alternative explanations were also found to be implausible and improbable when compared to other evidence. The appropriate extract of that decision in matter numbers 3124 and 3220 of 2005, Perks and Petroski Vs NSW Department of Juvenile Justice [2005 NSW IRComm 458] is found at paragraph 151 of his Honour's decision, which also relies upon a decision of his Honour Mr Justice Boland quoted as follows: "Unfortunately, the seriousness of this matter has been compounded by my findings that the applicants have been less than truthful with the Commission and earlier, with their employer. A not dissimilar situation confronted Boland J in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. There His Honour found that an otherwise good police officer's untruthfulness in the witness box rendered his dismissal not harsh, unreasonable or unjust". 319 No intervention against the respondent's decision is appropriate in this case and the dismissal was therefore neither harsh, nor unjust, nor unreasonable and the application is accordingly dismissed. J P Murphy Commissioner

Summaries of Investigation Material relied upon by South Eastern Sydney Illawarra Area Health Service 1. Sandra Bowley 2. Tracey Fitzgerald 3. Marion Lindsay 4. Margaret Bowley 5. Melanni Bridges INTERVIEW INTERVIEW INTERVIEW * She could only see the lower half of the resident as they were sitting beside a half wall. …She saw Mr D's arm lash out at CP, heard CP say "Don't hit me", then saw CP struck back" INTERVIEW * "resident's arm reached out then observed CP hit back, "did not have a full view of the resident …. could only see resident's arm, but could clearly see CP." * "CP approached Mr D to give him his medication… CP pulled away the magazine Mr D responded by grabbing for the magazine and in doing so grabbed CP by the arm. CP yelled at Mr D …"don't hit me." Upon releasing Mr D's hold, CP slapped Mr D across the face, punched him in his right arm and twisted his right arm to which Mr D cried out in pain." *TF said that she saw CP grab the resident's arm, saw that quite clearly, that he held the resident by the arm for 5 seconds and that there was a strain on CP's face. * "Looked up and saw the expression of shock on TF's face …. saw SB with her face in her hands and * "…saw CP grab the resident's arm and twist it" *SB thought that CP had broken Mr D's arm, but observed Mr D moving his arm following the incident. "TF stated that the incident upset her very much, that in her opinion, the resident was not really very aggressive and as the resident was in a lock up chair, he could not have posed a threat". *"I know what was happening, I'm not stupid, but as I didn't seen (sic) what actually happened, I didn't like to report…" *Commented to TF "that was a bit over the top". * ".."she had a full view of the incident. REPORT *When she knows she is working with CP, she checks the shower list to see if any listed are known to have aggressive behaviour as CP wants to help with them as he's a bit of a bully and can be rough with them. SB said she tries to shower these residents before CP offers assistance. REPORT REPORT * "..I heard Colin Prior (RN) say to Mr D (Resident) "Don't you hit me". I then saw Colin Prior's left hand come into contact with the left side of Mr D's face. REPORT REPORT *Heard CP shout out "Don't you dare hit me". * "Colin then swung his arm, I'm not sure whether to put Mr D back down in the chair or what, as I was unable to see Mr D from where I was, I then saw Colin grab Mr D's arm. I do remember at the time thinking it was a bit rough". *Mr D was sitting in a security chair, Mr D had a magazine… Colin tried to take it. Mr D reached out to Colin, I heard Colin shout "Don't you dare hit me". I observed Colin use an open hand and hit Mr D's head on the left side. He then punched Mr D on his right arm and then bent Mr D's right arm. *The resident Mr D .. his arms outstretched towards Colin… I then saw Colin strike out with his right hand in the direction of Mr D and although I didn't see Colin's hand connect with Mr D, I did hear it connect and from the position of the two, I assumed it to be in the region of Mr D's head. Colin then grabbed Mr D's right arm with both hands and proceeded to squeeze and twist his arm for a period of 5 seconds. I also noticed that Colin had a very angry expression on his face." * "I was facing domestic staff, Tracey and Margaret. They both had concerned looks on their faces. I turned around and saw Sandra walking towards the kitchen with her face in her hands". *Tracey and I looked at each other and I think it was Tracey who said something like "that was a bit excessive" or something like that and I agreed with her. *Mr D was in a chair and Colin could have taken a step back.

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