1. Application dismissed
2. Plaintiff is to pay the defendant's costs
3. Liberty to the parties to apply within seven days in respect of the costs order

ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - application for review of administrative decisions made under the Administrative Decisions (Judicial Review) Act 1989 - ACT public servant - allegations of misconduct - dismissal

Fair Work Act 2009 (Cth) s 52

Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 6

Public Sector Management Act 1994 (ACT) ss 5-12, 122

Ainsworth v CJC [1992] HCA 10; (1992) 175 CLR 564

Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88; [2005] HCA 72

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Coutts v Close [2014] FCA 19

FCT v Asiamet (No 1) Resources Pty Ltd (2004) 137 FCR 146; [2004] FCAFC 73

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

Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Sullivan v Civil Aviation Safety Authority (2013) 62 AAR 77; [2013] FCA 1362

Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342; [2001] FCA 1839

ACT Public Service Community Services Directorate Enterprise Agreement 2011 - 2013

1 This is an application for review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ('ADJR Act').

2 At relevant times the plaintiff worked for Disability ACT as a disability worker, caring for elderly females in shared accommodation known as [redacted for legal reasons]. Some residents had dementia, and all of them needed a high degree of care.

3 Disability ACT was at relevant times the manager of [redacted for legal reasons].

4 Between 2002 and 2016 Disability ACT employed the plaintiff in various positions, including at [redacted for legal reasons], where she worked between 2009 to 2013 as an acting Disability Service Officer Level 2 (Team Leader). Working with her were other employees of Disability ACT. They were called disability support officers. They worked in shifts, as did the plaintiff. Some were permanent. Others were casuals, from an agency.

5 In general terms, in the course of her work, the plaintiff was obliged to shower the patients, ensure they had incontinence pads replaced appropriately, feed them, give them their medicine, take them on outings, keep administrative records, perform housework such as washing up and cleaning, and administer the small staff.

6 In 2013 complaints arose about the plaintiff's performance of her duties. The complaints were investigated. Of 14 complaints, six were substantiated. Two of them were serious, one involving a cruel way of giving medicine, the other, failing to change incontinence pads sufficiently frequently. Others included leaving work before her shift finished, and putting the burden of the work on those whose work she supervised, apparently to ensure she did as little as possible.

7 The defendant was the person with authority to decide whether misconduct had occurred, and if so, what action to take. Thus it was she who decided the six complaints of misconduct had been established, and that the plaintiff should be dismissed.

8 This case concerns the route by which her misconduct findings were reached, and her decision to dismiss the plaintiff.

9 It is the plaintiff's case that there was a breach of the rules of natural justice in the course of the making of those decisions. As a result, she asks that they be set aside.

10 For the reasons which appear below, I have concluded there was no breach of the rules of natural justice, and no error in the decision maker's approach to her fact finding. I have, accordingly, decided the claim should be dismissed.

11 At the time she worked for Disability ACT the plaintiff was employed as a public servant by the Australian Capital Territory under the Public Sector Management Act, 1994 (ACT) ('PSM Act'). Sections 5-12 and 122 of that Act provide relevantly:

Unless the contrary intention appears, the provisions of this Act do not apply to any of the following:

(a) a judge of the Supreme Court;

(b) the master of the Supreme Court;

(c) a magistrate;

(d) a person engaged in an honorary capacity;

(e) a person remunerated by fees, allowances or commissions only;

(f) the Legal Aid Commission (A.C.T.);

(g) ACTEW Corporation Limited;

(h) ACTTAB Limited;

(i) the University of Canberra.

Government agencies shall have an objective of implementing the following values and principles:

(a) service to the public; (b)

(b) responsiveness to - (i)

• (i) the requirements of the government; and
• (ii) the needs of the public;

(c) accountability to the government for the ways in which functions are performed;

(d) fairness and integrity;

(e) efficiency and effectiveness.

The public sector shall be administered with an objective of giving effect to the following principles:

(a) the public sector shall be administered to provide quality services to the public;

(b) decisions shall be as fair as possible;

(c) the best management practices shall be used;

(d) the public sector shall be structured and organised to facilitate the timely and effective performance of its functions;

(e) there shall be a clear and explicit delineation of the responsibilities and accountabilities of public employees, administrative units and territory instrumentalities;

(f) the public sector shall be managed in accordance with principles of access and equity by giving all members of the public the opportunity to have a fair share of the resources which the Territory manages on their behalf and an opportunity to gain access to the resources to which they are entitled;

(g) the public sector shall be administered to minimise the possibility of unlawful discrimination.

8 General principles of management in employment matters

In employment matters, government agencies shall be administered with an objective of giving effect to the following principles:

(a) selection processes shall be directed towards and based on a proper assessment of merit;

(b) all officers shall be afforded equal opportunities to secure promotion and advancement in their employment on the basis of relative merit;

(c) best practices shall be adopted in the training and development of staff;

(d) public employees shall be provided with safe and healthy working conditions;

(e) public employees shall be afforded opportunities for appropriate participation in the decision-making processes relating to the administration of the government agencies in which they work.

A public employee shall, in performing his or her duties:

(a) exercise reasonable care and skill;

(b) act impartially;

(c) act with probity;

(d) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations;

(e) in dealing with members of the public, make all reasonable efforts to assist them to understand their entitlements under the territory laws and to understand any requirements that they are obliged to satisfy under those laws;

(f) not harass a member of the public or another public employee, whether sexually or otherwise;

(g) not unlawfully coerce a member of the public or another public employee;

(h) comply with this Act, the management standards and all other territory laws;

(i) comply with any lawful and reasonable direction given by a person having authority to give the direction;

(j) if the employee has an interest, pecuniary or otherwise, that could conflict, or appear to conflict, with the proper performance of his or her duties -

• (i) disclose the interest to his or her supervisor; and
• (ii) take reasonable action to avoid the conflict;

as soon as possible after the relevant facts come to the employee's notice;

(k) not take, or seek to take, improper advantage of his or her position in order to obtain a benefit for the employee or any other person;

(l) not take, or seek to take, improper advantage, for the benefit of the employee or any other person, of any information acquired, or any document to which the employee has access, as a consequence of his or her employment;

(m) not disclose, without lawful authority -

• (i) any information acquired by him or her as a consequence of his or her employment; or
• (ii) any information acquired by him or her from any document to which he or she has access as a consequence of his or her employment;

(n) not make a comment that he or she is not authorised to make where the comment may be expected to be taken to be an official comment;

(o) not make improper use of the property of the Territory;

(p) avoid waste and extravagance in the use of the property of the Territory;

(q) report to an appropriate authority -

• (i) any corrupt or fraudulent conduct in the public sector that comes to his or her attention; or
• (ii) any possible maladministration in the public sector that he or she has reason to suspect.

The misconduct procedures that apply to a public employee are -

(a) if an industrial instrument applies to the employee and includes procedures for misconduct - the misconduct procedures in the industrial instrument; or

(b) in any other case - the prescribed misconduct procedures.

10 Sections 6, 7, 8 and 9 subject to other provisions

Sections 6, 7, 8 and 9 have effect subject to the other provisions of this Act and any other Act.

(1) Nothing in this division is to be taken to create any legal rights not in existence before the enactment of this part or to affect any rights in existence before that enactment or that would, apart from this part, have come into existence after that enactment.

(2) Subsection (1) does not prevent a contravention of section 9 (a) to (p) by an officer or employee from being dealt with under the misconduct procedures that apply to a public employee or section 122 (Termination of employment).

Note Establish includes constitute and continue in existence (see Legislation Act, dict, pt 1). (2)

(2) The ACT Public Service is made up of the administrative units established under section 13.

(3) The members of the ACT Public Service are -

• (a) the head of service; and
• (b) the directors-general; and
• (c) the executives; and
• (d) other employees; and
• (e) officers.

(4) The Territory is the employer of all members of the service.

(1) This section applies if under the misconduct procedures that apply to a public employee, the public employee has engaged in misconduct.

(2) The head of service may terminate the employment of the public employee.

(3) A decision to terminate employment for misconduct is not an appellable decision or a reviewable decision.

Note A public employee may be able to take action in relation to termination of employment under the Fair Work Act 2009 (Cwlth).

(The parties were in agreement that all decisions concerning the plaintiff were reviewable).

12 The expression "misconduct" is defined as follows by the Dictionary to the PSM Act:

(a) a failure of the officer to fulfil his or her duty as an officer; or

13 By reason of s 52 of the Fair Work Act 2009 (Cth) ('Fair Work Act'), an industrial instrument, called ACT Public Service Community Services Directorate Enterprise Agreement 2011-2013, ('the EA') applies to certain occupational groups in the ACT Public Service, including the group which includes the plaintiff.

14 The EA contains a dismissal procedure. It is that procedure which was purportedly followed by the plaintiff's employer before the defendant made the relevant decisions.

15 The decisions to find the six allegations of misconduct proved and to dismiss her are the decisions the plaintiff wants reviewed under the ADJR Act.

16 Sections 5 and 6 of the ADJR Act provide relevantly:

(1) An eligible person may apply to the Supreme Court for an order of review in relation to a decision to which this Act applies on 1 or more of the following grounds:

(a) that a breach of the rules of natural justice happened in relation to the making of the decision;

(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(i) that the decision was otherwise contrary to law.

(2) The reference in subsection (1) (e) to an improper exercise of a power includes a reference to -

(a) taking an irrelevant consideration into account in the exercise of a power; and

(b) failing to take a relevant consideration into account in the exercise of a power; and

(c) an exercise of a power for a purpose other than a purpose for which the power is given; and

(d) an exercise of a discretionary power in bad faith; and

(e) an exercise of a personal discretionary power at the direction or behest of another person; and

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; and

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(i) any other exercise of a power in a way that is abuse of the power.

(3) The ground mentioned in subsection (1) (h) is not taken to be made out unless -

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

6 Applications for review of conduct related to making of decisions

(1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, an eligible person may apply to the Supreme Court for an order of review in relation to the conduct on any 1 or more of the following grounds:

(a) that a breach of the rules of natural justice has happened, is happening, or is likely to happen, in relation to the conduct;

(b) that procedures that are required by law to be observed in relation to the conduct have not been, are not being, or are likely not to be, observed;

(c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

(d) that the enactment under which the decision is proposed to be made does not authorise the making of the proposed decision;

(e) that the making of the proposed decision would be an improper exercise of the power given by the enactment under which the decision is proposed to be made;

(i) has been, is being, or is likely to be, committed in the course of the conduct in the making of the proposed decision; or

(ii) is likely to be committed in the making of the proposed decision.

(g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;

(h) that there is no evidence or other material to justify the making of the proposed decision;

(i) that the making of the proposed decision would be otherwise contrary to law.

(2) The reference in subsection (1) (e) to an improper exercise of a power includes a reference to -

(a) taking an irrelevant consideration into account in the exercise of a power; and

(b) failing to take a relevant consideration into account in the exercise of a power; and

(c) an exercise of a power for a purpose other than a purpose for which the power is given; and

(d) an exercise of a discretionary power in bad faith; and

(e) an exercise of a personal discretionary power at the direction or behest of another person; and

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; and

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(i) any other exercise of a power in a way that is abuse of the power.

(3) The ground mentioned in subsection (1) (h) is not taken to be made out unless -

(a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which the person was entitled to take notice) from which the person can reasonably be satisfied that the matter is established; or

(b) the person proposed to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

17 The defendant concedes the plaintiff is an "eligible person" and that the ADJR Act applies to the decisions the plaintiff seeks to impugn. But she says there are no grounds to impugn those decisions.

18 It was common ground that the relevant mechanism for workplace disciplinary procedures is in s H of the EA which relevantly provides:

H1.3 The following procedures of Section H contain procedures for managing workplace behaviours, (sic) including the management of cases of unsatisfactory work performance and misconduct.

H1.4 These procedures must be applied in accordance with the principles of natural justice and procedural fairness, and in a manner that promotes the values and general principles of the ACTPS.

H1.5 In cases where an allegation of misconduct or underperformance is made, the head of service will initiate a process (the evidence gathering process) to determine whether there is sufficient evidence to support the allegation. Following this process the head of service may determine that:

(a) no disciplinary or underperformance action is required;

(b) the matter can be resolved through informal counselling, other remedial action, or assistance to the employee;

(c) the matter is better resolved through Internal Review procedures set out in this Agreement or appropriate external mechanisms; or

(d) the matter warrants action in relation to underperformance processes, clause H2, or investigation under disciplinary processes, clause H7.

H1.6 The head of service will inform the employee of the allegations when a process is commenced under clause H1.5, unless it is inappropriate to do so.

H4.1 This clause establishes procedures for managing misconduct or alleged misconduct by an employee.

H4.2 This clause applies to all employees except casual employees. In applying these procedures to officers on probation or fixed term employees who have been engaged for a continuous unbroken period of less than two years, the head of service may determine that procedures and practices throughout clauses H4 to H10 may be applied on an appropriate basis according to the circumstances of the case, and in accordance with the principles of procedural fairness and natural justice.

H4.3 The objective of these procedures is to encourage the practical and expeditious resolution of misconduct issues in the workplace.

H4.4 These procedures must be applied in accordance with the principles of natural justice and procedural fairness and in a manner that promotes the values and general principles of the ACTPS.

H4.5 For purposes of this Section, misconduct consists of any of the following:

(a) the employee fails to meet the obligations set out in section 9 of the PSM Act (this may include bullying and harassment or discrimination);

(b) the employee engages in conduct that has brought, or is likely to bring, the Directorate or ACTPS into disrepute;

(c) the employee returns to duty after a period of unauthorised absence and does not offer a satisfactory reason on return to work;

(d) the employee is convicted of a criminal offence or where a court finds that an employee has committed an offence but a conviction is not recorded, taking into account the circumstances and seriousness of the offence, the duties of the employee and the interests of the ACTPS and/or of the Directorate;

(e) the employee fails to notify the head of service of criminal charges in accordance with clause H10.

H5.1 Where misconduct is alleged, the head of service will inform the employee of the allegation unless it is inappropriate to do so. The head of service may immediately transfer the employee to other duties, reallocate duties away from the employee or suspend the employee with pay. The head of service may suspend an employee without pay where serious misconduct is alleged against the employee.

H7.1 If, after conducting the evidence gathering process, the head of service is of the opinion that the alleged misconduct cannot be resolved informally in accordance with subclause H5.4, the head of service will:

(a) investigate the alleged misconduct by making arrangements for an appropriately trained or experienced person (the investigating officer) to investigate the alleged misconduct; and

(a) inform the employee in writing of the nature of the alleged misconduct, the nature of the proposed investigation, and the possible implications of the misconduct including the discipline actions available; and

(b) give the employee a reasonable opportunity to respond to allegations, in writing and/or at a scheduled interview, before forming a conclusion; and

(c) provide the employee with at least twenty four hours written notice prior to conducting an interview, advise them if the interview is to be recorded electronically, and provide the employee with a copy of the record; and

(d) advise the employee that the employee may have a union or other employee representative present during the interview to support the employee and will allow reasonable opportunity for this to be arranged; and

(e) provide a record of the interview to the employee to correct any inaccuracies in the record and provide comments before signing the record. If the employee elects not to sign the record, then details of the offer will be noted.

H7.4 The investigating officer should as soon as practicable take any further steps considered necessary to establish the facts of the allegations and provide a written report to the head of service.

H7.5 After considering the report from the investigating officer, the head of service will make a determination on the balance of probabilities as to whether misconduct has occurred.

H8.2 In circumstances where the head of service, following an investigation or full admission by the employee as per H7.2, determines misconduct has occurred, and the head of service considers discipline action is appropriate, one or more of the following actions may be taken in relation to the employee:

(e) transfer temporarily or permanently to another position at level or to a lower level; or

(f) termination of employment in accordance with the PSM Act. For the purposes of this clause financial penalties are:

i. reducing the employees increment level;

ii. deferring incremental advancement; and

iii. imposing a fine.

H8.5 Before taking discipline action, the head of service will advise the employee in writing of:

(a) the decision as to whether the misconduct has been found to have occurred; and

(d) the period during which the employee has to respond to the proposed discipline action (a minimum of five working days).

H8.6 After considering the employee's response to the proposed action, or if the employee has not responded at any time after the period outlined in paragraph H8.5 (d) has lapsed, the head of service may take disciplinary action. The head of service will inform the employee in writing of:

(a) the final decision regarding discipline action to be taken; and

(b) the date of effect and/or, if relevant, the cessation of the action; and

(c) the appeal mechanisms that are available under this Agreement.

19 As I have observed, the plaintiff worked for Disability ACT from 2002 to 2016. Until 2013 she was never made aware of any unhappiness or dissatisfaction on her employer's part with any aspect of her work.

20 On 7 May 2013, the plaintiff's grandson died from Sudden Infant Death Syndrome. The plaintiff then took three months off work to support her daughter and her family and to deal with her own grief. She returned to work in early August 2013.

21 On 22 October 2013, the plaintiff received a telephone call from her employer saying a complaint had been made against her, and she was not to come to work that day. She asked: "What are the allegations?" and was told: "I cannot tell you over the phone. A letter will be sent out to you detailing the allegations". She asked about going back the following day but was told: "Get [redacted for legal reasons] out of your head. You are not going back to [redacted for legal reasons]".

22 The Plaintiff later received a letter dated 22 October 2013 saying she "may not have met the obligations" under s 9 PSM Act, and the EA as well as internal policies and procedures, by:

(a) Failing to provide adequate support to clients and leaving them in soiled clothes;

(b) Failing to carry out duties required when on shift with other support staff;

(c) Failing to identify her whereabouts when on duty to "line management";

(d) Leaving work prior to the conclusion of her shifts; and

(e) Failing to account for hours not worked.

23 She was told she was to be transferred to other duties while an inquiry was held. She was invited to respond by 24 October 2013. She was directed not to discuss the allegations, or the investigative process, with any employee or 'client' or guardian without approval.

24 The plaintiff attended a meeting on 28 October 2013 with representatives of her employer and her union. She was asked many questions about the allegations. The plaintiff said (she was not cross examined on this before me and I am satisfied it is true) that in the course of this meeting she became distressed, she left the meeting, subsequently suffered anxiety, and then took sick leave.

25 In February 2014, the plaintiff returned to work in a different position.

26 On 11 April 2014, the plaintiff's employer wrote to her saying it proposed holding a formal investigation under Section H - Workplace Behaviours (sic), of the EA. She was told an investigator would investigate allegations that she had left shifts early or been absent without approval, had not recorded accurate leave records, had not given appropriate care to some patients, had inappropriately withdrawn support from some patients, and had failed to treat colleagues with dignity and respect.

I am of the view that a formal investigation... will provide all parties with a full and fair opportunity to provide their evidence. The investigator will not be reliant on information provided to date but will seek to interview and take statements from relevant parties... [T]he ... investigator will write to you putting the allegations in greater detail, with more specific information to enable you to make a full response... At the conclusion... the investigator will provide me with a written report on their findings. Following consideration of that report and in accordance with Clause H7.5 of the Enterprise Agreement, I will make a determination on the balance of probabilities as to whether or not misconduct has occurred, and if it has, after further contact with you, the appropriate discipline action to take.

28 She was told "misconduct" meant a failure to meet the general obligations in s 9 of the PSM Act, conduct that brings or is likely to bring the Directorate or ACT Public Service into disrepute, and returning to duty after a period of unauthorised absence without a satisfactory explanation. She was warned not to speak to any staff or 'clients' without consent, and told a breach of that stricture might itself result in disciplinary action.

30 Thereafter the employer set about investigating complaints against the plaintiff and formulating its allegations of misconduct against her.

31 The following, from Paragraph 1(m) of the amended originating application, is what Mr Grey submitted contained the gravamen of the plaintiff's case as to what the defendant failed to do in the course of this investigation:

(i) [Failing] to ensure the investigation of the misconduct allegations was carried out in a manner which was fair to the plaintiff and furnish[ing] the plaintiff with all of the information necessary to enable the plaintiff to identify what she was accused of doing wrong, and when, and to whom, such that she could respond adequately and with particularity to the allegations;

(ii) failed to conduct any reasonable re-evaluation of all of the evidence in the light of the criticisms of the process made by the plaintiff's solicitor;

(iii) failed to provide witness statements to the plaintiff until four months after her first decision, at a time when her actions gave rise to a reasonable apprehension that the defendant had already made up her mind that the plaintiff was guilty of six counts of misconduct, and additional submissions on behalf of the plaintiff based on the witness statements, however cogent, would not make any difference to the outcome.

32 The above should be borne in mind in the context of what follows.

33 On 24 June 2014, Ms Kennedy took a statement from a disability support worker, Ms Charls, who said the plaintiff had not been changing incontinence pads often enough, or taking patients to the toilet when she should have, or showering the patients. She said further, that the plaintiff had been absent from the workplace without explanation.

34 On the same day Ms Kennedy took a statement from Ms Bergman, another disability support officer. She also complained the plaintiff had not been showering patients; she said the plaintiff had not shared the work adequately, and would absent herself from the work place without explanation; on one occasion she had said she was going to a building called Nature Conservation House ('NCH') but had clearly not gone there, as a NCH officer had later phoned, wanting to speak to the plaintiff.

35 On 25 June 2014, Ms Kennedy took a statement from Ms Browning, another disability support officer. She complained the plaintiff would not change the patients' incontinence pads, and would leave work before her shift had finished.

36 On 27 June 2014, Ms Kennedy took a statement from a disability support officer working for Quest Solutions, a provider of labour to Disability ACT. This officer, Ms Clarke, said the home had four ladies with varying needs.

All...are non verbal, but Client 4 can say about 5 words. Three of the ladies wear continence pads and one wears a pad. One ...is a diabetic...and the community nurse comes twice a day to give her insulin...In July 2013 [Ms Browning asked if she had noticed the ladies had not been showered after the plaintiff had been on duty]...I started to take more notice. I started to notice that every time I was on the 7am shift, and [the plaintiff] was on the overnight shift and follow on shift, I would arrive and notice that Client 1 and Client 2 had dry hair and the shower floor was dry, although they were no longer in their pyjamas and had apparently been dressed for the day.

37 She also said the plaintiff had not been dressing patients appropriately, or changing their incontinence pads when she should have been, and had not fed them properly. She said the plaintiff had shown a lack of respect for the patients. She confirmed that to her observation the plaintiff had been absent from work without explanation. On one occasion she rang the plaintiff to see if she could get her to sign a report. The time was about 12.30 pm. The plaintiff swore at her and said "I've just walked in the door at home". At that time the plaintiff lived at Batemans Bay and her shift was not due to finish until 4 pm.

38 On one occasion she saw the plaintiff poke a patient in the back with her finger, saying to the patient: "move, you bitch", as she tried to get her to move out of her way.

39 On 3 July 2014, the plaintiff was suspended from duties. By letter received that day from the Manager Employee Relations, Mr Bruce Hogan, she was told her suspension was with pay, and would continue "while the further allegations of misconduct are investigated". She was told of two further allegations, namely a failure to shower a patient when scheduled, and a failure to change a patient's incontinence pads, leaving the pads and the patient's clothes soaking wet with urine. The plaintiff was told the appointed investigator, Ms Kennedy, would consider these further allegations as part of the ongoing investigation and include her findings in the report to him. She was told Ms Kennedy would provide the plaintiff with detailed allegations, after which the plaintiff would be given the opportunity to respond to them. The plaintiff was entitled to have a support person present at an expected interview, and the investigator would write and give her "any further details of the allegations and make interview arrangements with you...Should the allegations be proven on the balance of probabilities, this may constitute misconduct, leading to action including termination of employment." (My emphases).

40 She was given a copy of the EA H1 disciplinary procedures and, in conformity with H6.3, was given five working days to give reasons why she should not be suspended.

41 Again she was directed not to discuss the allegations with or make any contact with any employee or 'client' without permission.

42 In the meantime Ms Kennedy continued to interview witnesses. On 8 July 2014, another employee, Ms Maher-West, spoke of the plaintiff's failure to shower patients, or to change incontinence pads, her lack of respect for patients, her rough manner of administration of medication, and some unexplained absences from the work place. She also said the plaintiff used work time to do personal things.

43 Ms Kennedy reinterviewed Ms Charls to see if she had ever seen the plaintiff being rough with patients while giving medication. She said she had not. Further, she had always found the plaintiff courteous; and whereas others had complained the plaintiff had not split the work equitably, she did not make that complaint.

44 On 30 July 2014, Ms Clarke gave an additional statement, in which she described a rough and cruel method of giving medication she had seen the plaintiff employing with a patient.

45 Then Ms Kennedy spoke again to Ms Bergman, but she could not recall seeing any instances of rough administration of medication. Nor had she witnessed any failure to feed patients. She did consider however the plaintiff did not dress the patients properly to take account of the weather.

46 A supplementary statement was taken from Ms Browning and she recalled Ms Clarke telling her the plaintiff had been rough when medicating a patient, though she had not seen this happen herself. She had not noticed the plaintiff distributing work unfairly, but had been on weekend shifts, where there had not been much for anyone to do.

47 On 4 August 2014, Ms Steiner, a disability support officer, gave a statement in which she said she had worked many shifts with the plaintiff and had not observed problems with the plaintiff's patients not being showered, or having pads changed. She had not seen her medicate patients roughly; nor had she observed the plaintiff being absent from work without explanation. She had found the plaintiff professional and caring.

48 In a statement of 11 August 2014, Ms Ballard, who did not work at the home, said she had had contact with patients there but had not encountered particular problems such as a lack of showering of patients. She knew the plaintiff and had found her pleasant and polite. She could not recall receiving any complaints about her.

49 She later checked the records for Patient 1 and found no record of any concerns having been expressed about her showering or not having pads changed or not having been dressed properly.

50 On 15 August 2014, Mr Pooley, from the Higgins Outreach Centre, told Ms Kennedy of problems with Patient 2, who had not been showered at times, would not have had her pads changed, and would be dressed inappropriately. He did not say he knew who had been obliged to see to these matters, but he said he had observed all of these problems had resolved from 2014 onwards.

51 On 18 August 2014, Ms Kennedy told Mr Bruce Hogan and Mr Phillip Rocks, of Employee Relations, a meeting with the plaintiff was scheduled for 22 August 2014, and as to the correct categorisation of the allegations against the plaintiff.

52 Although it had earlier been alleged the plaintiff had not recorded or maintained adequate leave/attendance records, Ms Kennedy said she had reviewed the records for the plaintiff for a four month period from July to October 2013 and considered that allegation would be:

...very hard to prove and would be significantly time consuming. I would need to provide precise dates/times and the evidence is quite insufficient...Building access logs to NCH (where Ms Evans claimed to be at ...times) are also not available. I will however still be addressing allegations about leaving shifts early or being absent for extended periods as a generalised allegation throughout 2013 as I do have some evidence that I think the Delegate may consider.

53 On 18 August 2014, the plaintiff was given a letter with arrangements for an interview on 22 August 2014. She was told that in line with the provisions of the EA she would be told the detailed allegations she had to respond to, at that meeting.

54 The letter contained 14 detailed allegations, including the following six which ultimately were found to be proved:

Allegation 2:

On numerous occasions throughout 2013, while on duty ... Ms Evans failed to change the clients' pads/incontinence aids and toilet them appropriately, including before bed, in the mornings and during the day, resulting in the clients being left in soaking wet pads/continence aids for extended periods.

Allegation 6

On several occasions throughout 2013, while on duty ...Ms Evans used physical force when administering daily oral medication to one of her clients and in a manner considered to contravene...policy and procedure The technique Ms Evans used was to grab the client by the face and dig her fingers into the back area where the client's teeth are located, forcing them to open their mouth. At this point Ms Evans would have a metal spoon containing pills covered in a substance such as custard into the client's mouth. (This 'client' has been identified as Patient 2).

Allegation 8

On numerous occasions throughout 2013, while on duty ...when one or more clients needed to be dropped off or picked up, Ms Evans either directed DSOs to take the client/s remaining in the house with them or left the DSOs no choice but to take the client/s remaining in the house with them. This resulted in extra work for the DSOs and meant that some clients had to be left in the ...van, due to mobility issues (ie two clients requiring a wheel chair at the same time) and the DSOs would need to rush while doing the drop off or pick ups. On at least one occasion a DSO was directed by Ms Evans to take sick clients remaining in the house, who were on antibiotics and too sick to attend their scheduled outings, to drop off a client at Sharing Places.

Allegation 11

On numerous occasions throughout 2013, while on duty ... Ms Evans would leave [the residence] during her shift for periods of up to four hours saying 'I'm going to NCH', (meaning Nature Conservation House), And/ Or left her shifts early with no apparent reason. This would not just occur on her scheduled administration days.

Allegation 12

On numerous occasions throughout 2013, while on duty at the [residence] Ms Evans spent a significant amount of time in the ... office when she should have been attending to house duties and/or client care. This would not just occur on her scheduled administration days.

Allegation 13

On numerous occasions throughout 2013, while on duty at the [residence]Ms Evans failed to complete her duties and left the majority of duties to other DSOs including;

(a) When Ms Evans worked the afternoon shift and sleep over shift she did not complete housework as per the shift plans for the [residence] and left this for the DSOs working the following day, including emptying the bins, cleaning the dishes from dinner, cleaning the kitchen and any other tasks that needed to be done (i.e. folding and putting away washing).

(b) Leaving the other DSOs to do the majority of dropping off and picking up the clients from outings

(c) While on shift with other DSOs Ms Evans would leave the majority of client care and housework to the other DSOs.

55 It will be noted the allegations used expressions such as 'on numerous occasions'. Mr Grey contended there was unfairness to the plaintiff in not being given dates when misconduct was said to have occurred, or the names of the patients she was said not to have cared for properly: that, it was said, made it impossible for her to respond to the allegations. Further, Ms Kennedy did not at this stage give the plaintiff copies of the statements from which the allegations had been formulated.

56 When the meeting was held on 22 August 2014, and the plaintiff answered allegations, from time to time in the course of the meeting she suggested people Ms Kennedy should speak to who she considered would help her cause. It was later a complaint by Mr Grey on her behalf that Ms Kennedy did not follow up leads the plaintiff suggested. That, also, he said, had made the process unfair.

57 A transcript of this meeting was in evidence. From it I deduce that the meeting was somewhat informal. Those present introduced each other. Apart from the plaintiff and Ms Kennedy, those present were Ms Moira Johnson, 'team leader, employee relations', and a law clerk, Caroline Hickey, who was the plaintiff's support person. The meeting was recorded.

58 Ms Kennedy announced those present had "a mutual obligation to take part in the process in good faith". She said "no judgment has been made at this time about whether misconduct has occurred." She said what was being asked of the plaintiff was that she give an honest and accurate account from her perspective about the allegations: that this was her opportunity to respond to them.

59 The plaintiff agreed the interview would be recorded, and said there was no medical reason to prevent her from responding to the allegations.

60 Ms Kennedy explained her job was to ascertain the facts and give a written report outlining the facts to the delegate, who was to make a decision as to whether misconduct had occurred. Ms Kennedy said the burden of proof was the balance of probabilities, which differed from what happened in a criminal investigation.

Ms Kennedy: In simple terms, on the balance of probabilities ...means that the delegate needs to be satisfied that the allegation is more likely to have occurred than not to have occurred. For more serious matters the delegate has to be satisfied to a higher degree".

The plaintiff: So is that like if it's a criminal charge or something?

Ms Kennedy: I guess if the allegations were to be proven it might lead to termination or...something like that...

Ms Johnson: So sometimes you can get- its easier or its lower in civil. So you might find something on a civil standard and if it went to court for a criminal it might not be- there might not be enough...because it's a higher standard."

The plaintiff: Yeah.

Ms Kennedy: So if things were to go to judicial proceedings or something like that, they might want a higher level of evidence...it essentially is they have got to be satisfied that it was more likely that something occurred than that it didn't occur...Discipline action under these procedures may take into account the following factors: the nature and serious (sic) of the misconduct; the degree of relevance to the employee's duties or the reputation to the directorate; the circumstances of the misconduct; any mitigating factors including any full admissions of guilt...

61 The plaintiff was invited to provide information and was told the possible consequences at the end of the process included dismissal.

62 There was then a discussion about [redacted for legal reasons], and the plaintiff assisted by describing it and some of the impairments of the residents.

63 Then, one by one, she was read the allegations and invited to respond to them orally. The plaintiff consistently denied any wrong doing. From time to time she complained of the lack of specificity of when certain misconduct, such as failing to shower patients, was said to have occurred. But she maintained that regardless of when any alleged misconduct might be said to have occurred, she had not done what had been alleged.

64 When questioning the plaintiff, Ms Kennedy did so in an apparently interested and responsive way, suggesting she had an interest in following up avenues of inquiry not previously explored. For example at Transcript 45.41 there was this exchange:

Ms Kennedy: Is there anyone you want me to talk to to sort of testify that when they came on their 7am shift that the ladies had been showered?

Plaintiff: Well, I don't know who has made the allegations, do I?...I'm kind of stuck because I don't know...I know Tracey Clarke would be one of them...but I highly doubt it was my permanent staff...so Georgia Browning... would be one...

65 She also suggested Ms Steiner and Ms Charls, both fellow employees of the plaintiff who, as I have noted, along with Ms Clarke and Ms Browning, had already been interviewed. She was not however told they had been interviewed.

66 The first allegation raised concerned an alleged failure to ensure her patients were bathed.

67 Each patient carried with her a form of communication for staff, called a communication book. When questioned about this allegation the plaintiff suggested communication books of the particular patient be looked at to see if other staff had noted the patient had not been showered. The plaintiff said she herself had not observed any patient had not been showered. But she considered there might be reasons, such as when a patient had soiled a pad, when it might appear to another staff member the patient had not been showered when they had been.

68 The plaintiff made the point that a patient who is not showered may have urine scalding and urinary tract infections after "a couple" of missed showers.

69 In this context she lamented the lack of dates in the allegations when patients were said not to have been showered, but said she was confident none of her patients had missed a shower, or, at the least, a sponging. She also said she would have expected relatives to have complained had this been apparent.

70 With the second allegation, that she had not changed incontinence pads, a similar procedure was adopted, as for the first allegation. The plaintiff was taken through the procedures she said she had taken to ensure patients were not left with wet pads. She insisted she had acted appropriately with all patients.

71 Allegation 6 concerned the complaint she had given medication in a forced way. When this allegation was read to her, the plaintiff was given the names of the patients she was alleged to have medicated roughly.

72 The descriptions by the two eye witnesses of alleged forceful medication were quite graphic.

[O]n one occasion I saw Donna Evans giving [Client 2]...medication in a manner [I] considered 'rough' and that left me feeling concerned...[a patient was avoiding taking her medication] and Ms Evans forcefully grabbed [her] face. Ms Evans placed her thumb on one side of [Patient 2's] face in a very firm manner, squeezing [her] face, to force open [her] mouth. Ms Evans then went to put tablets in [her] mouth on a metal spoon with custard and [she] then pulled her head back.

74 She said she had been asked by Ms Evans to go into another room after that occurred and because she felt intimidated by her she had complied. Ms Evans said to her on her return "I do that because [Patient 2] does not take her meds while there is another person in the room". However Ms Clarke had not previously seen such a problem with that patient.

75 Ms Maher-West said she had seen Ms Evans take Patient 2 into the bathroom when she had declined to take her medication. That had occurred often enough to worry her. She added:

I have seen [the plaintiff] force [Client 2] to take medication in front of me. Donna would grab [her] face and dig her fingers into the place where the back of [her] bottom and top jaw connect, which forced [her] to open her mouth. Donna would then forcefully 'shove' a metal spoon with pills covered in custard into [her] mouth. I was concerned because it looked like it hurt...and [she] does not have teeth, so shoving a metal spoon in her mouth like that might injure her gums. I have also seen Donna use this technique when giving medication to [Patient 1].

76 There are several things to be noted about this allegation. First, although Ms Clarke and Ms Maher-West both identified Patient 2 as one who the plaintiff had roughly treated, Ms Maher-West said she had seen Patient 1 being similarly treated by the plaintiff. But allegation 6 refers only to Patient 2.

77 Secondly, the drafter of the allegation erroneously referred to Patient 2 having teeth when the facts show she did not.

78 Thirdly, when asked about these episodes, apart from denying she had ever forcefully medicated a patient, the plaintiff said the occupational therapist for another patient, Patient 3, had recommended a helpful way of getting patients to cooperate when being medicated, involving a tickling or stroking under the patient's chin area, and a tapping, or "a physical prompt" to get her to open her mouth.

79 In the course of discussion about this allegation Ms Kennedy admitted she had made a mistake in alleging the medication had been pushed as far as the patient's teeth, given the patient had no teeth. She said "We put that in...So my apologies for assuming that she had teeth."

80 Also in the course of the discussion Ms Kennedy explored with the plaintiff her assertion that there had been a legitimate reason for her to have touched a patient's chin to get her to take her medication.

81 She asked: "So I just want to talk about this hand on the face. The thing I'm concerned about is the similarity of the movement or the gesture. This and this is pretty close." (Ms Kennedy apparently performed two hand gestures to illustrate a point. Regrettably there was no contemporaneous description for the transcript, as happens in court cases, for people who were not there). But the plaintiff denied there had been any "squeezing". She said she thought other staff members had been told to use the prompt she had described: "Yeah, I - I think so, yeah."

82 Then there was discussion of the size of the spoon witnesses had seen the plaintiff using. The plaintiff asked "if you go back to re-interview whoever has made this allegation ask them if it's a metal spoon or a soup spoon or a dessert- what the hell kind of spoon it was". Ms Kennedy answered "A metal spoon", and the plaintiff asked "But what size?" Ms Kennedy answered "But I don't know what size, yeah". The plaintiff however maintained she had never forced Patient 2's mouth open.

83 It is to be recalled two witnesses said they had seen the plaintiff forcefully medicate Patient 2 and one had also seen her do it to Patient 1.

84 Before me, Mr Grey argued there was a significant inconsistency between what was said by the witnesses and what was said in the allegation. I do not accept the argument. The witness statements supported an allegation she had used force with more than one patient, but the allegation was made only as to one, the one where there were two eye witnesses.

85 The transcript shows the plaintiff realised while this allegation was being discussed with her that one of her accusers was Ms Clarke. She said:

Look I don't know who exactly made these complaints but I do know Tracey Clarke has made a few. Where I think this has originally come from like...Like I have said to you, I-I-I have the best team. I love them girls to death. You know it has taken me a long time to pull them together.

86 After the discussion of the forced medication allegation the interview continued until nine of the allegations had been read to the plaintiff and responded to.

87 She then gave Ms Kennedy some reasons why she thought Ms Clarke's evidence against her ought be treated with scepticism. One reason concerned a bad report she had given Ms Clarke. The other concerned what she said were serious but false complaints Ms Clarke had made against others, implying she had a tendency to make false allegations.

88 At the conclusion of the meeting the plaintiff was again invited to name any witnesses she thought should be interviewed. Given she was not given the names of those already spoken to, this was something of a bizarre guessing game for her, especially, as I have noted, she had suggested several who had already been interviewed.

89 There was insufficient time for all the allegations to be considered at the meeting, and when it ended, after the first nine had been discussed, the plaintiff was invited to make written submissions concerning allegations 10-14. Before the meeting ended Ms Kennedy added some obscure instruction on the burden of proof:

Ms Kennedy: And remember, Donna, this isn't on the balance of probability. So if you have got four individuals saying this and one saying that and four individuals---

Ms Hickey: It's about weighing the evidence.

Ms Kennedy: ---corroborating what you've been saying, that's- you can see the weighting there.

Plaintiff: Yeah.

Ms Kennedy: However if you have got five individuals over there and you saying this that's where---

Plaintiff: yeah.

Ms Kennedy: ---we have a problem.

Plaintiff: Yeah, yeah.

90 I infer that what Ms Kennedy tried to say was that the plaintiff might not be accepted if there were multiple witnesses whose evidence contradicted hers.

91 The plaintiff was again invited to make further submissions, and reminded she was not permitted to discuss the matter with other employees or 'clients' of the directorate other than herself, the delegate and her support person.

92 Although it would have been a better process had she been given the names of her accusers, to my observation, having read the transcript, there was no apparent difficulty for the plaintiff in responding to allegations in not having the names of witnesses or patients before or at this meeting.

93 On 2 September 2014, the plaintiff was sent the transcript and an audio compact disc of the interview and asked to point out any errors in the transcript, initial each page and any corrections, and return the transcript by 10 September 2014.

94 On 3 September 2014, the plaintiff emailed a response to allegations 10-14 inclusive. Her response was very detailed, and although she did complain that precise dates had not been given, she did not seem to be hindered in her ability to respond. Again, she denied any wrongdoing.

95 In the course of responding, she suggested a number of documents which she thought could or might assist her. She also asserted she had heard allegations of the type made against her had been made against the person who had taken over from her. She invited a comparison.

96 She gave the names of more potential witnesses and suggested some documents she called her "DS02 reports" be "reviewed".

97 Following receipt of that email Ms Kennedy followed up a number of matters and asked the plaintiff to clarify some assertions. Ms Kennedy asked what information the plaintiff thought she might obtain if she read the documents the plaintiff thought she should look at.

98 In a further email, which the evidence suggests was sent on 8 September 2014, the plaintiff again referred to Ms Clarke, and asserted she had previously made false allegations against others. She gave additional reasons why the evidence of some witnesses should be treated with caution.

99 On 9 September 2014, she gave a further written response to allegation 8.

100 On 10 September 2014, Ms Kennedy sent the plaintiff a lengthy document setting out a summary of the allegations, and the plaintiff's responses. The plaintiff was asked for more information on some issues. Some of the plaintiff's responses in that document show concessions, such as that she might at times have raised her voice, in response to an allegation she had raised her voice and used profanities while on duty.

101 The plaintiff apparently returned the transcript of the August meeting, but not initialled as asked for. She had a phone discussion with Ms Kennedy on 11 September 2014. On 12 September 2014, Ms Kennedy sent the transcript back to her with a request she confirm she had no further comments about the transcript, or any further submissions to make.

102 In the meantime, Ms Kennedy continued with her investigation. She obtained an opinion from Mr Hayter, network manager. He was familiar with [redacted for legal reasons]. Although it was stating the obvious, he said it was a matter of hygiene for patients using pads to be showered daily, and have their hair washed. He said patients should be dressed appropriately, and never left alone in the house. He said employees in the plaintiff's position should use their time appropriately.

103 Mr Lynch, a past network coordinator, had observed that the plaintiff had at times left work before her shift had finished. He spoke of the need for documents to record when the plaintiff took leave.

104 In summary, in investigating the allegations, Ms Kennedy inspected a number of documents, including a vehicle log book, and shift rosters for the home, and she interviewed a total of ten witnesses.

105 After receiving responses from the plaintiff and inspecting some additional documents, Ms Kennedy prepared a lengthy report, including full details of fourteen allegations, the course of her investigation of each of them, reasons why six of the fourteen should be upheld, and a draft set of findings, on the assumption the delegate came to the same view.

106 The preparation of that document was, I conclude, in accordance with s H7.4 of the EA, which required that she take any further steps considered necessary to establish the facts of the allegations, and then provide a written report to the head of service.

107 It is to be noted that by that stage all 14 allegations had been put to the plaintiff and she had answered them all, either orally or in writing or both. Ms Kennedy had made it known to the plaintiff in her email of 10 September 2014 that the burden of proof required in disciplinary matters was the balance of probabilities, and her role was to ascertain the facts and advise the delegate for a decision on whether misconduct had occurred, concluding: "The decision as to whether misconduct has occurred rests with the delegate..."

108 The defendant was the 'delegate'. In her affidavit of 10 May 2016 the defendant said this 'brief' had reached her on 16 June 2015. She had read it and an investigation report and formed the view the plaintiff had engaged in misconduct, in that allegations 2, 6, 8, 11, 12 and 13 had been established, and that the plaintiff should be dismissed.

109 She explained that for each of those allegations there had been two or more witnesses, who were the plaintiff's co-workers at [redacted for legal reasons], each of whom had supported such allegations as her unauthorised absences from the workplace, and not replacing incontinence pads. At paragraph [23] she said she considered the incontinence pads and forced medication allegations "very serious conduct, where dismissal would be the likely outcome."

110 She noted the investigator had interviewed several of the witnesses the plaintiff had recommended but said the statements of all but one had supported one or more of the allegations. She said, at paragraph [24]: "If the allegations were untrue, I would have expected all the witnesses to contradict the allegations." At paragraph [25] she stated she believed there was: "sufficient weight of evidence to be reasonably satisfied that the relevant allegations were more likely than not to be true". I conclude the formula "reasonably satisfied" owed its origin to Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336 (Briginshaw).

111 Having reached that view, the defendant said she understood her duty to be to give the plaintiff her decision and reasons and invite a response. That conclusion was, I conclude, in accord with s H8.5 of the EA.

112 Thus it was that on 7 July 2015, almost a year after her meeting with Ms Kennedy, the plaintiff received a letter from the defendant telling her that six of the allegations of misconduct against her had been substantiated "on the balance of probabilities", that this put her in breach of her obligations, and that it was proposed to terminate her employment with payment of five weeks pay in lieu of notice.

113 She was told she had a right to reply about: "my findings of misconduct and proposed disciplinary action" and this response would be considered before a "final decision" was made. But if she did not respond, the findings would be "implemented".

114 In summary the allegations it was said were substantiated were:

(a) failing to change incontinence pads and failing to take patients to the toilet when they should have been taken;

(b) using force to have patients take their medication;

(c) getting support officers to deliver or pick up patients when she should have done that job;

(e) performing administrative or office work at times when she should have been elsewhere, doing other things;

(f) failing to perform certain of her duties, such as washing up, leaving support officers to do that work when they were meant to be performing other duties.

115 A statement of reasons was attached to the letter. It set out each of the 14 allegations. It gave reasons why some, but not all, of the dismissed allegations, had been dismissed, and it gave detailed reasons why the six which were made out, had been made out.

116 In explaining why the six allegations had been made out, the statement referred to the evidence of witnesses who had supported the allegations, and explained that though the plaintiff had denied ("refuted") these things had occurred, the allegations had been substantiated by witnesses. The witnesses were not named, just given a number. Their statements had still not been given to the plaintiff.

117 Although at trial there was argument about what step that notification was in the disciplinary proceedings process, it seems clear to me with the benefit of counsels' submissions, and applying the plain meaning to the procedure in H7 of the EA, together with the letter of 7 July 2015, that the plaintiff was thereby informed the allegations had been established on the balance of probabilities and, subject to what she might now say in response, she would be dismissed. In other words, the delegate's decision on the misconduct findings was final, but she could make submissions about the appropriate sanction, so that the defendant might be persuaded not to dismiss the plaintiff.

118 In the course of argument before me it was argued the terms of that letter gave the plaintiff the right to make further submissions about whether or not the six allegations could be or should be or had been established. Support for that proposition came from the following sentence in the letter dated 7 July 2015: "You may provide a written response within fourteen working days addressing my findings of misconduct and proposed disciplinary action".

119 However I consider the letter simply invited a response to address the objective gravity of the misconduct which had been established, so as to persuade the delegate not to take the disciplinary action she foreshadowed, namely dismissal. That interpretation is consistent with s H7.5 of the EA. The defendant's invitation for a response is contemplated by s H8.5 of the EA. It was not a letter asking for submissions on whether or not the six misconduct findings which had been sustained should stand. However, as appears below, she did later make submissions to try to persuade the defendant not to maintain her misconduct findings, and her submissions were considered.

120 On 7 August 2015, the plaintiff's solicitors responded. They drew the delegate's attention to the plaintiff's right to procedural fairness, and asserted she had not had this. Among other complaints, they asserted the witness statements had never been given to the plaintiff, the defendant's reasoning process had not disclosed what evidence had been relied on, and the plaintiff had provided names of some witnesses for the investigator to speak to but it was not clear whether they had been spoken to by Ms Kennedy. No dates or times had been specified as to when wrong doing was said to have occurred. There had been evidence which might explain error by witnesses to the forced feeding incident, but it was not clear whether that evidence had been put to the eye witnesses to explore the possibility they might have been in error.

121 The solicitors also drew the defendant's attention to Briginshaw, as some of the allegations were very serious, in fact amounting to criminal offences, (forced medication for example).

122 Asserting the whole fact finding exercise had been fatally flawed, the solicitors for the plaintiff recommended the appointment of a new investigator and the provision of copies of witness statements to the plaintiff. They asked that she be given another opportunity to respond in a substantial way once provided with the statements. They asked that all new findings be made on a Briginshaw basis.

123 The defendant responded on 25 August 2015, asserting that although the investigative process was to have been carried out in compliance with the rules of procedural fairness that did not mean the plaintiff had been entitled to all she claimed to be entitled to. The defendant also denied she had been obliged to apply Briginshaw concepts when engaging in fact finding.

124 By their letter of 3 September 2015, the plaintiff's solicitors again asserted she had been denied procedural fairness by reason of inadequate disclosure, and again asserted Briginshaw principles should have been applied to the fact finding process.

125 They also complained that some of the matters the subject of the findings had never been drawn to her attention while she was working, thus she had never had a chance to improve her behaviour. They also asserted she had been frank with investigators, and had been a long standing and loyal employee, so that if the misconduct findings were to remain on foot, any sanction should be benign.

126 With that letter her solicitors supplied some factual material about her working record, and her professional qualifications.

127 On 19 November 2015, the defendant wrote to the plaintiff's solicitors enclosing the witness statements, while maintaining she had not been entitled to see them. The plaintiff was given 14 days more to respond on the question of the appropriate sanction.

128 On 21 December 2015, the plaintiff's solicitors responded to the provision of statements. They addressed both whether the misconduct findings should stand and what sanction should be applied. They gave reasons why certain witnesses might have been biased towards their client, noted their credit had not been assessed by the investigator, and were critical of other ways the statements had influenced the outcome of the investigation.

129 On 24 December 2015, the defendant wrote to the plaintiff to say she had considered all the submissions made for her, but her findings of misconduct remained. She had considered and weighed all the evidence. Dealing in particular with the plaintiff's submissions, she maintained the witnesses to the forced medication complaint had not, as had been asserted, fabricated their evidence.

130 Recognising dismissal to be the highest form of sanction available, she said:

...your conduct, with particular weighting placed on the lack of care in toileting clients and the use of force in administering medication... show a complete disregard and lack of respect for the clients and their welfare. The actions and behaviours shown to be proven are a direct breach of your duty of care and are in breach of your obligations under the Public Service Management Act 1994. I believe termination of employment is justified in these circumstances.

131 The plaintiff was reminded she had a right under the Fair Work Act to appeal against the termination of her employment.

132 The plaintiff did not exercise her right under the Fair Work Act.

133 Her employment was terminated from 6 January 2016, with five weeks pay in lieu of notice.

134 The evidence consisted of relevant documents, an affidavit of the plaintiff on which she was not cross-examined, and an affidavit of the defendant, on which she was cross-examined.

135 The defendant had retired by the time of the hearing. She is not qualified in law. She has a Bachelor of Arts in psychology and a Master of Business and Administration. In her Master of Business and Administration she studied what she called "minors", in finance and legal administration.

136 She said when she receives reports of the type she received about the plaintiff after the investigation process, she always reads them. Then, if she has questions, she may go to the statements or the transcripts of the interviews.

137 Mr Grey queried with her the lack of any notes of her thought processes. But she said her practice was to make notes on 'Post-Its' and then throw them away after she had finished with them.

138 She was challenged about Ms Kennedy's failure to give copies of the statements to the plaintiff earlier than she did. Ms Chapman said she thought the plaintiff had been given sufficient information to permit her to respond to the allegations, especially since there had only been four patients and four to six fellow employees. She agreed however that that also meant it might not have been too difficult to have provided the statements.

139 However she said that in her view, apart from some differences in language, any differences between what was in the statements and what was in the summary for the brief was not material.

140 Then she said that after the plaintiff was given the statements she was given a further month to say whether they made any difference to her submissions about whether it was reasonable or not in terms of finding misconduct or otherwise and she had in fact taken the submissions into account.

141 On its face, the letter which accompanied the statements only gave her the right to respond on the issue of the proposed sanction.

142 But I conclude from what occurred that she was given the right to respond on all issues. Following receipt of the statements by the plaintiff, her solicitors made detailed submissions about the misconduct findings, in an attempt to persuade the defendant to set them aside. The defendant's response of 24 December 2015 on its face suggests she did in fact reconsider her findings of misconduct. As I have noted, she said she had taken into account the additional submissions. Further, her 24 December 2015 response said "My findings of misconduct remain extant..."

143 The defendant was asked why she had not followed up the possibility the witnesses to the forced medication incident might have misinterpreted what they had seen. She said the plaintiff had denied the allegations, and that although she "possibly" could have obtained the plaintiff's version to compare with that of the witnesses, "at the time it was clear that ...she had ...refuted the allegation" though the plaintiff was not saying her hands had not come anywhere near the patients' faces.

144 There was a policy requiring that there be no contact with a patient's body if the patient objected.

145 Thus the plaintiff herself had conceded contact with patients, in circumstances where patients had apparently not consented to be touched.

146 The plaintiff's evidence that she had only done what an occupational therapist was said to have recommended for some other patient was therefore irrelevant:

We acknowledged that she disputed the allegation but we also go to the policy- that's very clear- which says disability staff won't do such a thing....there's Ms Evans' statement which...from my perspective ...it was substantiated.

147 Though the defendant later conceded it might not necessarily be bad "to gently tap the sides of the cheeks or the chin or slide the finger up underneath the chin to produce an open mouth reflex", she added that the descriptions of the forced medication incidents in the statements showed force being used.

148 In the course of his cross-examination of the defendant Mr Grey explored various issues which, on reflection, Ms Chapman conceded she could have done differently before making her decisions.

149 Although Ms Chapman had a tendency to give long and unresponsive answers, I formed the view that she gave her evidence honestly, and her inappropriate responses did not reflect a desire to avoid the truth.

150 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 Mason J said:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

151 The content of the procedural fairness requirement varies according to circumstances: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at 13-14 (per Gleeson CJ).

152 The requirement of H4.4 of the EA that the procedures be applied in accordance with the principles of natural justice and procedural fairness must in my view be read in the context of the required procedure and what the employer did.

153 I am not persuaded there was procedural unfairness in the process of investigation or in the decision making process.

154 Much of the time in cross-examination and submissions was spent on allegation 6 and what could or should have been done differently by Ms Kennedy or the defendant.

155 Mr Grey submitted the finding was not supported by the evidence. He said there was confusion produced with one witness seeing one instance with one patient and another witness seeing two instances with two patients. The lack of dates was also important with this allegation, he submitted, as if she had had the date she might have been able to show she was not at work on the day referred to in the allegation. She did have three months off work that year.

157 Here the defendant had the statements from two eye witnesses. Each had seen the plaintiff forceably medicating Patient 2, and one had also seen her forceably medicating Patient 1. The plaintiff conceded she had touched the faces of the patients. There was a protocol to the contrary when a patient did not consent to be touched.

158 It was possible that the two witnesses were mistaken about what they saw, but their descriptions were quite graphic. I am satisfied she took into account the submission of the plaintiff that she should be careful about accepting the eye witness evidence. I am satisfied she took into her account the plaintiff's assertion the incident was fabricated. The fact the defendant rejected her submissions does not mean she was wrong.

159 The fact the precise date was not known was not a material matter. The plaintiff denied any inappropriate conduct, including this conduct. The staff was very small. It was unlikely the witnesses were mistaken as to who they saw. The transcript shows the plaintiff knew which patient was involved.

160 Analysis of the statements does not show confusion or inconsistency. One witness saw the plaintiff medicate two patients inappropriately, the other only one.

161 It would have been appropriate for the investigator to have gone back to the two witnesses and asked them: "Are you sure you didn't just see her tickling the patient under her chin to coax her mouth open?" But the fact she did not does not mean the requirement of natural justice was not complied with. There are limits to what natural justice requires in an inquiry such as this one.

162 Thus I am not critical of the defendant or those who advised her, for not doing more than they did. Nor do I criticise the defendant for forming the view she took on this incident. It was well open to her on the evidence to be reasonably satisfied the incident had occurred.

163 I am not critical of the defendant for not knowing more than she did about the requirements of Briginshaw. She told me someone had explained to her what it was. She agreed that in making her decisions she had been required to do so with a level of critical analysis.

164 When it was put to her she had not looked at the evidence critically, although conceding she could have expressed herself better, she disagreed.

165 When submitting the defendant had not applied the critical approach in Briginshaw Mr Grey relied especially on what Dixon J said there at 361-2:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

166 I agree there were findings made about serious matters adverse to the plaintiff. It would have been better for the decision maker to explain that she did not accept, or that she in fact rejected, the plaintiff's explanations. But from my reading of the reasons for the findings, I conclude that the allegations which were found to have occurred were considered with care and accorded detailed explanation. The seriousness of the allegations, especially 6 and 10, was also considered.

167 It should be noted that there were other allegations, such as allegation 1, where the investigator came to an inconclusive view, so the complaint was not established. In that case it was because investigating the matter more fully would have required obtaining medical records, a step the investigator did not take. Although reasons were not given for the dismissal of all the dismissed allegations, where they were given they show a reasonable degree of analysis.

168 In cross-examination Mr Grey asked of the defendant concerning allegation 6:

"You didn't...evaluate all of the evidence in a way that tried to weed out those things which were not affirmatively establishing that the events described by Ms Maher-West and Ms Clarke actually occurred?" The defendant answered: "That was the role- that's the job of the investigator and the investigator provided a report of 70 pages which outlined what she found, what she thought was evidence, which I took as evidence. I read the witness statements and came to a view."

169 She said she did not always accept what was put in front of her and would at times either not make suggested findings, or apply a recommended sanction.

170 I accept the defendant's evidence about how she went about her task. The brief prepared for her was very detailed, and although its summaries did differ in language from that used in the statements, there were to my observation no significant discrepancies. I accept she looked at statements and questioned issues for herself and did what she was reasonably required to do before making her decisions. The reasons are quite detailed.

171 In Sullivan v Civil Aviation Safety Authority (2013) 62 AAR 77; [2013] FCA 1362 at [38] Jagot J said:

There are many paths of properly available reasoning which might be used by an administrative decision-maker...Provided the material findings of fact and the ultimate decision are reasonably open and based on some logically probative material the process of reasoning cannot properly be impugned on the basis that the decision maker did not apply, or say in some way that it applied, Briginshaw.

172 I find what her Honour said persuasive. As her Honour noted at [40] the principles in Briginshaw may be applied implicitly.

173 In my view all of the findings of misconduct were open to the decision maker, and on the basis that the decision maker was reasonably satisfied of them.

A legitimate expectation matters would be investigated?

174 Mr Grey submitted the plaintiff had a legitimate expectation that Ms Kennedy would follow up leads she suggested, such as speaking to witnesses, including the occupational therapist she said had told her it was appropriate to touch another patient's chin to persuade her to take medication.

175 While the plaintiff may have had a reasonable expectation the defendant (or at least, Ms Kennedy) would investigate certain matters, including the occupational therapist, I do not consider this extended to all the matters she raised. The defendant took some steps to clarify matters raised by the plaintiff. The correspondence shows Ms Kennedy went back to her, for example, on 10 September 2014, for clarification of matters raised in her defence. But the degree of analysis when she dealt with allegation 6 suggests strongly no disadvantage was suffered by the plaintiff on this issue.

176 Mr Grey submitted that whatever the defendant may have said after the event, it was the letter of 15 July 2015 which contained her findings. Nothing of substance occurred after that. The context and the way this fitted into the EA confirmed that. Her decision of misconduct was final at that stage.

177 However, whilst I agree that the findings in the letter of 15th July 2015 were apparently intended to be final, the course of the later correspondence persuades me there was a later re-evaluation of the evidence in the light of the submissions from the plaintiff's solicitors.

178 There were the exchanges between the defendant and the plaintiff's solicitors. Then the defendant said she had taken the submissions into account. I accept her evidence. The submissions she said she took into account were lengthy and detailed. Her response was not, but the submissions were sent in response to the lengthy report and the later provision of the statements.

A reasonable apprehension the defendant's mind was made up?

179 It was put against the defendant that she had already made up her mind on the misconduct findings before inviting or receiving more submissions.

180 I am satisfied that although before she gave the plaintiff the statements she had made what she regarded as her ultimate findings on misconduct, and although in her letter of 19 November 2015 she apparently invited submissions only on sanction, her mind remained open to receiving and considering the plaintiff's submissions on whether the misconduct findings should stand.

181 That view is consistent with what she told me, and her statement to the plaintiff's solicitors that she had considered all their submissions, but that her findings stood. The EA provisions did not contemplate this additional step, where an employee could, after being told of misconduct findings, make submissions to try to persuade the decision maker to change her mind on those findings.

182 In agreeing to accept the fresh submissions and in fact considering them, as I find she did, the defendant allowed an additional step in the scheme. That was not inconsistent with the EA provisions. But it was a step which made the process fairer.

183 Mr Grey was critical of the defendant for a process in which, he submitted, there had been a reversal of the onus of proof. The plaintiff had been required to show she had not done things.

184 I do not accept that submission. It is true the plaintiff was given several opportunities to put her side of the story after the allegations had been put to her. However, that was the process required by the EA where allegations of misconduct had been made. This was not a reversal of the onus of proof. The onus remained with the defendant.

185 Initially it was up to the investigator to see if there was evidence, and then if there was, to formulate and make allegations. Insofar as there was an evidentiary onus, that did not make the process unfair. It was simply the part where she was given the right to be heard.

Unfairness from not providing statements earlier?

186 Mr Grey was highly critical of the process, given the defendant was not given copies of the witness statements until after the misconduct decisions had been made.

187 This was a valid criticism of the process, in my view. As my summary of the interview process has shown, there was a somewhat Kafkaesque scene when the plaintiff was encouraged to nominate witnesses who might support her, without being told who had already been spoken to, or that people she suggested might help her, were her accusers.

188 However, in the end, I did not understand Mr Grey to point to any way in which his client might have been disadvantaged in a practical way through not having the statements earlier than she did.

189 Although I consider it would have been preferable for statements to have been provided at an early stage, and that no harm would thereby have been done to the investigatory process, I am not persuaded their late provision made the process relevantly unfair.

190 I consider the allegations were fairly formulated from the statements and that the plaintiff had little doubt about what was being put against her.

191 The transcript of the meeting suggests strongly that the plaintiff was aware of what was alleged against her.

192 When considering procedural fairness on judicial review the court looks at the whole process, especially where, as here, it is a multi-staged one: Ainsworth v CJC [1992] HCA 10; (1992) 175 CLR 564 at 578.

193 It may in some circumstances be adequate not to provide statements: Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342; [2001] FCA 1839 at 357. It may also be adequate not to disclose the identity of complainants: Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88; [2005] HCA 72.

194 A subject of administrative proceedings is not necessarily entitled to copies of statements of those making accusations of misconduct. There may also be reasons, such as the need for confidentiality of sources, where it is appropriate not to provide them.

195 In the end what matters is whether the failure to provide them has led to a practical injustice: Coutts v Close [2014] FCA 19 at [120] per Griffiths J. For the reasons I have given, I do not consider there was any practical injustice.

196 Mr Jarvis submitted that if there was any procedural unfairness in the late provision of the statements, any unfairness was made up for when submissions based on them were received and considered. I agree with that submission. If I am wrong in finding no procedural unfairness before the statements were provided, I consider any deficiency was more than made up for when those additional submissions were received and taken into account.

197 That the submissions were not accepted does not mean there was error in the decision making process.

198 Mr Grey submitted that the plaintiff's apparent openness in the interview was not given enough weight by the decision maker when deciding whether to accept her evidence.

199 However in her reasons, the defendant noted the plaintiff had "refuted" certain allegations. So the defendant clearly took account of what the plaintiff had said. I am not persuaded she was required to give the weight to her denials Mr Grey submitted for.

200 Mr Grey was critical of the investigator for not warning the plaintiff that what she said at the interview might be used against her.

201 But this was not a criminal case. It would have been apparent to the plaintiff she was being given the opportunity to give her side of the story, and that what she said would be taken into account by the decision maker. Her EA required she have that right. In any event the plaintiff's responses were denials of all wrongdoing. It is hard to see what disadvantage she suffered through providing her responses to the complaints.

Should there have been another step in the process?

202 Mr Grey was critical of the investigator for not clarifying matters with the plaintiff before sending her investigation report and brief to the defendant. However I do not consider, given the course of her correspondence with the plaintiff, that Ms Kennedy was required to do that. The plaintiff's position on all allegations had been provided.

203 Mr Grey said it must have been obvious to the defendant when she received the brief and report that the evidence was undated and consisted of imprecise opinions unsupported by objective evidence of the critical facts which the plaintiff had not had the opportunity to subject to scrutiny.

204 I do not accept that submission. In my view the brief and report on their face had a factual basis. There were opinions in them, but they were not unreasonably based. It may well have been apparent to the defendant that the plaintiff had not had the chance to respond, but that was not a right the EA regime gave her. Nor in my view did procedural fairness require it.

205 Mr Grey criticised the fact the plaintiff was not informed early enough of the allegations. But the evidence shows she was informed quite soon after they were formulated. The investigator took a while to see witnesses and take statements. The statements were to my observation carefully prepared. The last ones to be taken from fellow staff members were taken shortly before the plaintiff was given the final version of the allegations of misconduct. There was no unfairness in the fact the misconduct allegations changed or became more numerous as time went on.

206 There was an initial period when complaints were received from several people. That led to the first notification to the plaintiff. She was told the thrust of the complaints then. Later, when all statements had been made, it was clear there were more matters of concern, thus a need to give notice of more allegations. It would have been irritating for the plaintiff to be given several versions of the complaints, but once the formal disciplinary proceedings began there was only one set of allegations.

207 Mr Grey was critical of the process where the plaintiff only had an opportunity at the meeting to respond to some of the allegations.

208 But the plaintiff was invited to address the remaining ones in writing and she then made extensive submissions in writing. She did not complain at the time that she did not understand the allegations she was responding to. She did not ask for more time. Although she did complain of a lack of times and dates when the events were alleged to have occurred, she denied all allegations, and was quite specific about a number of them, such as using her employer's time for her own private business.

209 Mr Grey was critical of the process whereby documents apparently prepared by Ms Kennedy were presented as the documents of the defendant. But there is nothing exceptional about such a process. As long as the decision maker actually exercises her mind rather than rubber stamping the proposals put forward by the investigator; that is sufficient compliance with her obligations.

210 A decision maker may assign to someone else the task of investigating, recording, collating and summarising information and submissions. It can be unrealistic to expect a decision maker to read every document in a great mass of material. Where such delegation occurs, the decision maker may be open to challenge on the basis a particular matter was not taken account of, but the onus of establishing this is on the challenger: Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 at 426-7 per Spigelman CJ, Ipp AJA agreeing.

211 I am satisfied the defendant exercised her mind independently when making each of the relevant decisions. I am not persuaded she failed to take into account any particular matter.

212 Mr Grey submitted all of the decisions were manifestly unreasonable. I do not agree. Other decision makers might have come to different conclusions but I see nothing unreasonable about them. In my view there was a solid factual foundation for all findings.

213 Mr Grey was critical of the defendant for taking such a short time to make up her mind about sanction, given the plaintiff had submitted very detailed submissions. But I do not accept that submission. The defendant had all the information, and the fact she decided quickly does not suggest to me any shortcoming.

214 In the end the question is: was the disciplinary process a fair one?

215 Despite the shortcomings in the process I have identified, such as not following up leads, and not providing statements at any earlier time, the procedure, it seems to me, was fair overall.

216 There was a painstaking gathering of evidence from witnesses and a careful formulation of the allegations, followed by the application of the EA procedures, with an additional step inserted, giving the plaintiff an additional opportunity to address all issues before the defendant decided her earlier misconduct decisions would remain.

217 Having regard for the depth of the investigation before the interview, the way the interview was conducted, the matters followed up after the interview, the opportunities for the plaintiff to make submissions at various times after the interview, the eventual provision of statements, the provision of more submissions to the defendant after that, and the defendant's evidence that she took all the submissions into account, I consider there was practical justice.

218 For the above reasons the action will be dismissed. It must follow that the plaintiff pays the defendant's costs. In case any special costs order is to be sought I shall give leave to the parties to approach me in seven days.

3. Liberty to the parties to apply within seven days in respect of the costs order.

I certify that the preceding two-hundred-and-nineteen [219] numbered paragraphs are a true copy of the Reasons for Judgement of His Honour Acting Justice Walmsley.