Ferrett v Department of Ageing, Disability and Home Care

Industrial Relations Bureau v Knox Auto Parts & Accessories Pty Ltd [1982] 1 IR 314 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449 Fitton v Department of Ageing Disability & Home Care [2005] NSWIRComm 1199

APPLICANT Counsel Mr A Rogers

Solicitor LEGAL REPRESENTATIVES: Mr S Tipple Brennan Tipple Partners

RESPONDENT Mr I Taylor NSW Businesslink

• 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

WILLIAM FERRETT AND DEPARTMENT OF AGEING, DISABILITY AND HOME CARE

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

1 Mr William John Ferrett ("the Applicant") was employed by the New South Wales Department of Ageing, Disability and Home Care ("the Department") at the Peat Island Centre, Brooklyn ("the Centre") as a Registered Nurse from 15 October 1999 until 18 January 2006. 2 The Centre is one of the largest residential facilities operated by the Department providing services to approximately 93 clients, all of whom suffer various forms of disability. 3 Mr Ferrett's employment was terminated on the basis of findings made by the Department that he assaulted a resident (Mr X) at the Centre on 30 September 2005. 4 The application in this matter was filed on 7 February 2006 within the statutory time limit for the making of an application pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"). 5 Proceedings on 27 February 2006 established that resolution by agreement between the parties was not possible and directions issued to prepare the matter for arbitration. 6 An inspection of the Centre took place on 15 May 2006. Arbitration proceedings took place on 17 and 18 May 2006. 7 Mr A Rogers of Counsel, instructed by Mr S Tipple, solicitor of Brennan Tipple Partners, appeared on behalf of the Applicant. 8 Mr I Taylor of NSW Businesslink Pty Ltd appeared on behalf of the Department with Ms S Duus. 9 Mr Rogers brought evidence from the Applicant and Mrs Lorraine Goodbar, a registered nurse employed by the Department at the Centre. 10 Mr Taylor brought evidence from Ms Tracy Merlino, employed by the Department as an outdoor attendant at the Centre; and Ms Deirdre Russell employed by the Department as Nurse Manager Accommodation and Nursing Services at the Centre. 11 It is common ground that on the evening of 30 September 2005 a resident identified as Mr X suffered a cut above his left eye. Medical examination of Mr X on 31 September 2005 and 7 October 2005 revealed no other injury. 12 Mr Ferrett's evidence, supported by Mrs Goodbar, is that during the evening meal of 30 September 2005 the Applicant and Mrs Goodbar were attending to residents in the dining room of the Seabreeze Unit. Mr Ferrett noticed that a particular resident, who had recently been ill and not eating well, was enjoying the evening meal, consequently Mr Ferrett went to the kitchen to obtain some more food for that resident. 13 Mr Ferrett deposed that as he offered the additional food to the resident, Mr X became agitated, declaring "he is not getting that". Mr X grabbed the plate, there was a "tug of war" push and pull. Mr X ultimately took the plate of food and threw it on the floor. Mr Ferrett deposed that when the plate hit the floor Mr X ran back toward where he had been sitting. 14 Mr Ferrett put that Mr X was in an agitated state, waving his arms around. Mr Ferrett's evidence is that he attempted to calm Mr X, suggesting he go and lie on his bed, but got no response. 15 Mr Ferrett deposed that he tried to direct Mr X towards the door and was touching him on the back but did not have a grip on him. Mr Ferrett put that Mr X went past him then seemed to lose his footing and fell on the floor, face first. 16 The clinical records of Mr X show that he occasionally becomes unsettled and that lying on his bed has a calming and restorative effect. Mr Ferrett's evidence is that recent alteration to Mr X's medication has resulted in a higher frequency and intensity of event. 17 At para 25 of his statement of evidence (Exhibit 1) Mr Ferrett put: 25. I did not see what made Mr X slip. It happened very quickly. Mr X is poorly coordinated and that may be a reason why he fell. It is possible, too, that he slipped on some of the food which had spread from the plate. However, I am simply not certain and unable to say. I did not push him to the floor and no contact that I had on him would have been sufficient for him to f all. 18 Mr Ferrett put that Mr X is much larger than he and, while not physically impossible for him to have assaulted Mr X in the way described by Ms Merlino, to do so would cause him much pain. 19 Mr Ferrett's evidence is that he has not enjoyed good health in recent times. Following assault by a client in 2003 he has five bulging discs in his back, the nerve in his left foot is dead and his right leg is shorter than his left as a result of a previous accident.

20 Mr Ferrett deposed that he frequently uses a walking stick, is not able to easily bend, stoop or twist, and is required to carry an angina spray to treat this condition. 21 The medical condition described by Mr Ferrett in his evidence is supported by a functional assessment report by Ms Jennifer Cramp of Konekt Consultants produced for GIO Insurance on 13 September 2005 (exhibit 6). 22 Mrs Goodbar's evidence is that she was in the dining room during these events and moved to calm the other residents who had become variously agitated and concerned. 23 Mrs Goodbar's evidence is that, at Mr Ferrett's request, she called for assistance. Mrs Goodbar deposed that Mr X was taken to his bedroom, which is in close proximity to the dining room, where she dressed the cut over his eye with two steri strips. 24 Mr Ferrett's evidence is that Ms Clay was first to arrive, followed by Nurses Campbell and Mitchell about two minutes later. 25 Steven Campbell was the registered nurse in charge of the Centre on the evening of 30 September 2005. Mr Campbell instructed Mrs Goodbar to call Mr Martin. 26 Ms Merlino's evidence is that she was on duty in the kitchen which is connected to the dining room by a servery window. 27 Ms Merlino deposed that the Applicant came into the kitchen to obtain a meal for himself contrary to policy and returned to a table and proceeded to consume it. 28 There is conjecture between the parties on this point. 29 It is established that the resident for whom Mr Ferrett said he obtained the food could not eat solids and has meals blended and served in a purpose designed bowl. Ms Merlino deposed that the evening meal was a stew which the resident could eat if the meat content was cut into smaller sizes. 30 Ms Merlino deposed that on returning to the dining room Mr Ferrett did not sit at the same table as the resident whom he claimed the food was for, but sat at the same table as Mr X. 31 The evidence of Mr Ferrett and Mrs Goodbar is that Mr Ferrett sat alongside the resident for whom the additional food was obtained and not at the table where Mr X was seated. 32 Ms Merlino deposed that she saw Mr Ferrett take a bite of the food. Mr Ferrett did not deny this, deposing that eating "with" or demonstrating to clients was a proven technique to encourage them to eat. 33 In her evidence Ms Russell deposed that this method of encouraging a client to eat is not an endorsed procedure nor is she familiar with the use of this technique at the Centre. 34 Mr Ferrett, Mrs Goodbar and Ms Merlino all provided a diagrammatic representation of the Seabreeze dining room which has four tables in a reasonably comfortable, but not large space. 35 All three witnesses agree on the location where Mr X threw the food and that he was on the floor in the same spot. 36 Ms Merlino's evidence is that she did not see the push-pull for the plate of food between Mr Ferrett and Mr X, putting that she saw Mr X with the plate of food which he threw against the wall and floor. 37 Ms Merlino deposed that she observed Mr Ferrett become angry, he pursued Mr X, seized him from behind by the shirt collar and around the lower back and slammed him up against the wall. Ms Merlino's evidence is that Mr Ferrett then threw Mr X to the floor and sat upon him, injuring Mr X and occasioning a substantial loss of blood. 38 Ms Merlino's evidence is that Mr X then crawled across the dining room floor dripping blood as he went. 39 Ms Merlino put that Mrs Goodbar was not in the dining room at the time of these events, deposing that she arrived later with others. 40 Ms Merlino was challenged on this point by Mr Rogers who questioned her on how Mrs Goodbar could or would call for assistance if she was not in the dining room at the time. Ms Merlino put that Mrs Goodbar must have been in proximity and heard the commotion. 41 Mrs Goodbar's evidence is that Mr X was attended to by Mr Ferrett where he had fallen. 42 Ms Merlino deposed that Mr Ferrett had sat on Mr X, inferring that this action was to inflict further punishment. 43 Mr Ferrett, supported by the testimony of Mrs Goodbar, deposed that he knelt along side Mr X to assist him and had his arm across him trying to comfort him. 44 Mrs Goodbar's evidence is that Mr Ferrett was along side Mr X in between Mr X and the wall. 45 The evidence of Ms Merlino is that Mrs Goodbar used a bib to pick up a clump of food from the floor and at the same time smudged some of the blood on the floor then left. Ms Merlino deposed that she went back to the kitchen and obtained a mop and bucket to clean the food and blood from the floor. 46 Ms Merlino deposed that she mopped to the door. Ms Merlino's evidence is that at the door she saw Mrs Goodbar, who thanked her for cleaning up, and she also observed Mr Ferrett with Mr X in Mr X's bedroom, which is a little way down the hallway diagonally opposite the dining room. Ms Merlino deposed that Nurses Martin and Mitchell plus two others appeared and went to Mr X's bedroom. 47 Ms Merlino's evidence is that she was stunned and shocked by the event. 48 The evidence of Ms Merlino is that Mr X returned to the dining room with nurses Alan Martin and Steve Campbell and sat down. Ms Merlino deposed that Mr X got up quickly from the table and ran toward the pantry door; Mr Ferrett moved ahead of Mr X and shut the pantry door; Mr X was then medicated. 49 The evidence of Mr Ferrett is that when Mr Campbell dispatched Mrs Goodbar to get Mr Martin from the Pines Unit to assist, Mrs Goodbar left and Mr Ferrett went to the nurse's office and telephoned the Berowra Medical Practice seeking a phone order for a sedative. Mr Ferrett deposed that he spoke with Dr Scriven who regularly attend the clients at the Centre. The doctor prescribed 10 mg diazepam to be administered orally. 50 The procedure for a phone order requires confirmation by another member of staff. Mr Ferrett's evidence is that he handed the phone to Mrs Goodbar and the doctor repeated the order to her, she countersigned the order and then left. The evidence is that Ms Mitchell then arrived and she and Mr Ferrett issued the medication and completed the drug register, Ms Mitchell then taking the medication with her for Mr X. 51 Mr Mitchell was not called to give evidence, nor was the phone order for medication signed by Mr Ferrett and countersigned by Mrs Goodbar produced to verify or challenge this evidence. 52 Ms Merlino deposed that Mr Ferrett then came back into the pantry and said to her: You just saw him fall to the floor didn't you? 53 Ms Merlino deposed in her statement of evidence that (Ex 8 para 29): I was shocked, alarmed and a little worried at the request. When my shift finished, I left the unit and went to my car, I sat there for a short period and cried, I was upset and shaking by what I had witnessed. 54 Mr Ferrett denied the allegations made by Ms Merlino. Mr Ferrett deposed that he was not physically capable of the actions attributed to him, putting that he was recovering from an earlier injury sustained at the Centre and was at the time on a return to work program as part of his rehabilitation. 55 Mr Ferrett put that he spoke to Ms Merlino, saying: I am too old for this. I am sick of being attacked by clients. This is the second time it has happened to me here at Peat Island. 56 Ms Merlino denied that Mr Ferrett had said those words to her. 57 Ms Merlino deposed that she was worried and concerned and did not know what to do and subsequently spoke to Mr Bill Millington on Tuesday, 4 October 2005, and on the evening of Wednesday, 5 October 2005 to Jennifer Parkinson at the Mooney Mooney Workers Club. Ms Parkinson is Mr Millington's partner and is employed as Administrative Officer at the Centre. 58 The evidence of Ms Merlino is that she spoke with Ms Parkinson at work the next day, 6 October 2005, who informed her she needed to report the incident. 59 Ms Merlino deposed that on commencement of work at 10.00am on 7 October 2005 she spoke with Mr Roydon Cannon, the Nurse Unit Manager for Seabreeze, who directed her to Ms Russell's office. 60 Ms Merlino's evidence is that Ms Russell reassured her that she was doing the right thing and asked her to write out a statement sticking to the facts as she saw them. Ms Merlino's evidence is that she was too shaky so she relayed what she had seen to Ms Parkinson, who wrote it down and typed up a statement which Ms Merlino signed. 61 The evidence of Ms Merlino is that Ms Russell sent her home before the end of the shift because she was so upset. 62 Ms Merlino requested a transfer and has been employed in the Laundry since that time, not returning to the Seabreeze Unit after her report to Ms Russell. 63 In cross-examination Ms Merlino put that the delay of 7 days in reporting the matter stemmed from her concern that she would be "black balled" by the nurses who she put "always stick together". 64 Ms Russell has worked as a registered nurse manager for approximately 27 years and has been employed by the Department and its predecessors for approximately 30 years. Ms Russell took up her current position from 29 November 2004. 65 Ms Russell's evidence is that she had not met Ms Merlino prior to 7 October 2005 when Ms Merlino made her report. 66 The evidence of Ms Russell is that subsequent to receiving Ms Merlino's report of the event she reviewed the unit report by Mr Ferrett which stated: ""Mr X": unsettled in dining room. Lost balance when jumping up from his seat - Struck forehead on floor. Sustaining laceration to L eyebrow. Assistance obtained from RNR & other staff to help settle him. First aid given: Steri Strips applied & Tegaderm. Phone order of 10mg Diazepam orally given at 1750. Neuro obs taken & stable." 67 Ms Russell deposed that she informed Mark Newton, Chief Executive Officer, Hunter Residences, and the Ethics and Professional Standards Unit (EPSU) within the Department of the matter and directed that Mr X be sent for a medical examination and informed his family of events and his health status. 68 Ms Russell deposed that also on 7 October 2005 the Department, in the form of the officer with delegated authority, had decided to suspend Mr Ferrett on full pay and she arranged a meeting with Mr Ferrett and the CEO to inform Mr Ferrett of this decision. 69 Ms Russell's evidence is that Mr Ferrett was also informed that the NSW Police had been informed and requested he not discuss the matter with anyone other than herself, the CEO, the NSW Nurses' Association or EAPS. Ms Russell deposed: "Mr Ferret said words to the effect of, 'I know what this is about, last Friday.' I could see Wil Ferrett was shaking." 70 Mr Ferrett's evidence is that he asked Ms Russell why he was suspended and she replied that it was now a police matter and the police would inform him. Mr Ferrett put that he was upset when told this. 71 Mr Ferrett was subsequently directed to work at the Gosford office pending resolution of the matter. 72 The evidence of Ms Russell is that the EPSU arranged for an independent investigation of the allegations which was undertaken by Mr Brian Davis of Brian F. Davis & Associates Investigation and Consultant Specialists, who offer a range of services in surveillance, investigation and corporate security. 73 The report by Mr Davis ("the Report") is annexed to Ms Russell's statement of evidence (Ex 10, annex. 9). The tender of this report was qualified by objection from Mr Rogers who put that the report is evidence of what was before the decision makers when they took the decision to terminate Mr Ferrett's employment, not evidence of the facts associated therein. The report also serves as evidence of the procedure followed by the Department. 74 The Report states that the investigation by Mr Davis was carried out in accordance with procedural guidelines for dealing with misconduct as a disciplinary matter under section 46(i)(a) of the Public Sector Employment & Management Act 2003 ("the Public Sector Act") and the National Privacy Principles incorporated in the Privacy Act 2001. 75 Mr Davis reported that he had interviewed relevant staff whom he identified as: 1. Tracy Belinda Merlino, Service Support Officer 2. William Ferrett, Registered Nurse 3. Lorraine Goodbar, Registered Nurse 4. Alan Martin, Registered Nurse 5. Stephen Campbell, Registered Nurse 6. Sandra Mitchell, Registered Nurse 7. Deidre Russell, Nurse Manager, Accommodation & Nursing Services 8. Carol Clay, Registered Nurse 9. Jennifer Parkinson, Administration Officer 76 Mr Davis noted that at all times staff were courteous and prompt in providing assistance. 77 The record of each interview by Mr Davis is included in annexure 9 to Exhibit 10. 78 In the record of interview by Mr Davis (Ex 10, Annex. 9, Attach. 1.6) Mr Campbell described the circumstances in response to Mr Davis in the following terms: A I responded to a duress alarm. I am not sure time that was. Will Ferrett set off the duress alarm on the radio and called over the radio saying that he needed assistance and I responded immediately Q16 Can you tell me what you observed?

A When I got there Mr Ferret and Lou Goodbar were in Mr X's bedroom trying to settle him. He was in a highly agitated aggressive state. He is a big strong lad. So I got on the radio and asked Mr Al Martin in Pines Unit to come over and help me, as I did not want Wil in that situation as he has a bad heart and had been assaulted by a client in Pines Unit about two years ago and I did not want him in this situation. I directed Lou Goodbar to go over to Pines Unit.

Q17 Can you tell me what discussion if any took place?

A We had a brief discussion with Wil. He stated that there was escalating bad behaviour in the dining room. Wil said that Mr X was throwing himself around and cut himself. We did not have time to further elaborate. I tried with RN Mitchell and Al Martin to settle Mr X so that he did not further injure himself or others. 79 Asked if he had seen blood in the dining room or hall, Mr Campbell replied: No I didn't. There was blood in the bedroom on his pillow case and a little bit on the hall floor. I remember that Mr X wanted a fresh pillowcase. I think from memory we got him a sandwich and a cup of tea and took him back into the dining room. By that time I got a telephone order for 10 mg of valium. 80 Mr Campbell informed Mr Davis that his only observation of Ms Merlino was in the kitchen washing up. 81 In the record of interview by Mr Davis, Mr Martin described his involvement in the following terms (Ex 10, Annex. 9, Attach. 1.7): A I got a radio call from Steve Campbell asking me assist in Seabreeze. I don't remember the exact time, but it would have been half past five to six I imagine. Another Nurse came to look after Pines as I was there by myself. I came over to Seabreeze and Steve Campbell, Mr X and Wil Ferrett were in the hallway outside Mr X's bedroom. At that time Mr X was laying on the floor, bleeding from a head wound and was trying to get up. He was with Steve at that time and I assisted to hold him down while we talked to him. I offered him a sandwich and a cup of tea. He wanted that so me and Steve escorted him to the dining room where he sat on a chair. Wil went and organized PRN and Steve and I kept him his chair while he was eating his sandwich. He got up a couple of times and we sat him back down. He was given his PRN and drank his cup of tea. He was asked did he want to go to bed and he said yes, so we took him in and that was where he stayed. 82 When questioned about the extent of injury to Mr X, Mr Martin replied: He had a laceration near his eyebrow and me and Sandra Mitchell put the steri strips on him. 83 Mr Campbell had previously informed Mr Davis that he had worked with Mr X previously and had observed him to be unsettled on several occasions. 84 Nurse Sandra Mitchell was on duty as the Acting Nursing Service Support Officer at the Centre on 30 September 2005. 85 Ms Mitchell was interviewed by Mr Davis, who recorded her description of her involvement in the following terms (Ex 10, Annex. 9, Attach. 1.5): A: When I got to the Unit there were three staff members in Mr X's bedroom with Mr X. Mr X was lying on his bed and one of the nurses was holding a wet face cloth to a cut above his eye which was bleeding. I recall that those present were Wil Ferrett, Lou Goodbar and Carol Clay and Steve Campbell the RNR was with me. Steve Campbell asked Lou Goodbar to go to the Pines Unit and get Alan Martin EN to come across to assist. I can recall looking at the wound and seeing if it needed suturing. I formed the view that it did not and that a phone order for sedation was more appropriate.

Q17 Can you tell me what discussion if any took place?

A The first thing I did was observe the client being unsettled, pushing, shoving and agitating. I guessed that I addressed Mr X directly looking him in the eye and seeing that he was very agitated. I basically asked him how he was going and what was the matter. I was trying to calm him. He was looking at me and to the best of my recollection did not make a coherent response. He did not indicate how he had suffered his injury. I did not ask at that stage what had happened. The client was wanting to get up and when the staff allowed him up he commenced to push, shove and shout. At that stage I decided that distraction was the best option for Mr X and went and made him a cup of tea which I gave him in his bedroom. I recall that he drank it in one gulp. I then spoke to Mr Ferrett after observing the client for a while and we discussed ringing the doctor for a phone order sedation as Mr X was not settling. Wil went and phoned the doctor and I went and looked for something to eat for Mr X for further distraction. By this time Alan Martin had arrived and they were trying to sit with Mr X and trying to calm him down. Then Alan and Steve brought Mr X into the dining room. I gave Mr X a peanut butter sandwich and he sat at the table and ate that and I also gave him another cup of tea. I then went into the office and spoke to Wil Ferrett regarding the doctor's order for valium 10mg. I signed the phone order and the Drug Book and Wil gave me the 10mg of diazepam. I went into the dining room and was going to administer the medication to Mr X, but he was still very unsettled and I think he threw his plate that he had his peanut butter sandwich on. I then gave the medication to Steve Campbell who put the diazepam into Mr X's mouth. He tried to spit it out and I tried to distract him by talking to him and getting eye contact whilst the medication was administered. Once Mr X had settled which took about 15 minutes he went back to his bedroom and asked for a clean pillow case, which he got as the old one had blood on it. Then I discussed with Wil Ferrett what had happened. From memory he said that Mr X was okay and he was sitting with another client and it came out that Mr X had thrown himself on the floor, and that he was yelling. What I had observed was what I believe to be pre seizure behaviour which makes it extremely difficult to reason with someone in that state and they can not hold their concentration. The only thing that Wil told me about the injury was that Mr X had thrown himself on the floor. I could see by the behaviour of the client that he could have done this by my observations and in my presence after the incident in the bedroom he was restless, agitated and not wanting to settle. From my experience I thought it was related to seizure activity. 86 Mr Davis also questioned Ms Mitchell in respect to discussion with Mr Ferrett on the origins of the incident: Q25 Can you tell me if Mr Ferrett discussed with you anything further as to how this incident occurred?

A Mr Ferrett was concerned that Mr X had been displaying markedly more aggression in the period leading up to the incident. He believed that changes that had been made to Mr X's anti convulsant medication had led to an increase in agitation and aggressive behaviour in the last few weeks and my observations of Mr X that night were consistent with seizure or pre seizure behaviour. I also discussed with Wil Ferret the Incident Form and Accident Plan form required following on the incident, in particular a review of his anti-convulsant medication review by a Neurologist, as a well as a referral to the Programming Team for an Incidence Response Plan for aggressive behaviour . 87 Mr Davis spoke with Ms Clay by telephone and confirmed her response to an alarm in the Seabreeze Unit. Mr Davis reported that: Ms Clay had some form of recollection of asking him how did the injury happen and perhaps asking the question 'did he have a fit or a seizure?' Ms Clay was unable to advance this investigation as she was not initially directly involved. As such, a formal statement has not been obtained from her at this point in time. 88 Mr Davis was requested to investigate allegations detailed as: 1. physically assaulted Mr X, a Resident of Seabreeze Unit, by firstly, pushing him with force into a wall, and secondly, pushing him with force down on to the floor, resulting in a bleeding wound to Mr X's head

2. physically assaulted Mr X by sitting on him while he lay bleeding on the floor

3. failed in his care of duty to Mr X by not immediately obtaining medical assessment and treatment for Mr X after he had sustained blows to the head from hard surfaces and was bleeding

4. breached the DADHC Code of Conduct and Ethics, policy and procedures in that he failed to accurately report the facts of this critical incident but instead provided an alternative version of the circumstances which concealed his own role in the injury to the resident viz: he represented the incident as an accident in which Mr X fell to the floor and hurt himself without involvement of any other person

5. breached the DADHC Code of Conduct and Ethics by putting verbal pressure on at least one witness to this event in an attempt to elicit the agreement of that person with his version of the event as recorded by him in the incident Report of 30 September 2005 viz "Whilst taking evening meal in dining room, (resident) became unsettled, jumping up from dining table, falling to floor, struck forehead on floor, sustained laceration to left eyebrow. 89 Mr Davis reported that he had formed the view that, on the balance of probability, Mr Ferrett did push Mr X to the floor, however, sustaining the allegation would present some difficulty. Mr Davis took the same view in respect to the allegation that Mr Ferrett sat on Mr X. 90 Mr Davis made no positive finding on the allegation that Mr Ferrett failed in his duty of care to obtain immediate medical assessment and treatment for Mr X once the injury was sustained, however, acknowledged and accepted that Mr Ferrett did call for assistance and Mr X was assessed and treated. 91 Mr Davis concluded that Mr Ferrett did not accurately record the facts of the incident and so was in breach of the Department's Code of Conduct. 92 In respect to allegation No 5, that Mr Ferrett put verbal pressure on Ms Merlino to support his version of events, Mr Davis concluded: I find that on the balance of probabilities this incident did occur, however similar to allegations 1 & 2, there would be difficulty in sustaining this allegation. This allegation is refuted by Mr Ferrett and is not corroborated in any other form outside the direct evidence of Ms Merlino. 93 Mr Davis then made the following recommendations: 1 . Based on the evidence disclosed during the course of this investigation, you may give due consideration as to whether disciplinary action in respect of allegations 1 & 2 & 5 should proceed on the balance of probabilities, taking into account my previous references to sustaining this allegation when conflicting evidence is provided.

2. In respect of allegation No. 4, that Mr William Ferrett breached the DADHC Code of Conduct & Ethics Policy & Procedures in that he failed to accurately report the facts of this critical incident and instead an alternative version of the events which concealed his own role in the injury to the resident, you may consider that disciplinary action should proceed against Mr Ferrett in that he failed to accurately and fully record the events and overall circumstances which led up to Mr X suffering his injury.

3. I recommend that staff be counselled in relation to the necessity to complete full incident reports to assist management in making determinations when incidents of this nature arise.

4. I recommend that management ensure that the senior nurse on duty, in events such as this, supervise the submission of relevant reports, the accuracy of same and the fact that they contain full details.

5. All matters are now forwarded for your due information and attention. 94 These recommendations are then qualified in the following terms: The opinions, comments and conclusions set forth in this report are based upon information obtained during the course of the investigation. I do not purport to advise you conclusively on liability or conduct of this matter and in all respects defer to the advice of your legal advisers. 95 On the strength of the report by Mr Davis the Department dismissed Mr Ferrett from employment SUBMISSIONS

96 Mr Rogers submitted that the case turns entirely upon whether Mr Ferrett assaulted Mr X or not, putting that any subsequent allegations of inaccurate reporting or inducement of Ms Merlino fall away entirely. 97 Mr Rogers put that, whilst not binding upon the Commission, it is significant to consider that the incident was investigated by the police and no charges laid. 98 Mr Rogers submitted that the Department had not satisfied the onus of proving that misconduct had occurred. 99 Mr Rogers referred to Waterside Workers Federation v Commonwealth Steamship Co (1967) CAR 1092 as authority for onus; Briginshaw v Briginshaw (1938) 60 CLR 336 as authority for the application of the balance of probabilities standard; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449, a judgment of the High Court of Australia in which their Honours Mason CJ, Brennan, Deane, Toohey and Gaudron JJ said at 449-450: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: "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". 100 The balance of probabilities test is found in Briginshaw at 361-362: When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. 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 references". 101 Mr Rogers submitted that the only evidence of an assault is that of Ms Merlino, which is uncorroborated. 102 Mr Rogers put that the injury to Mr X is not evidence of an assault. 103 Mr Rogers put that nothing emerged to suggest that Ms Merlino had a motive to lie to Mr Ferrett's disadvantage, and while not discounting the possibility, submitted that Ms Merlino was mistaken as to what occurred. 104 Mr Rogers submitted that support for a finding that Ms Merlino was mistaken comes from inconsistencies within her own evidence and with that of other witnesses. 105 Mr Rogers submitted that a small laceration above the eye suffered by Mr X is inconsistent with the violence of the event as described by Ms Merlino, who deposed that Mr X was "slammed up against the wall then thrown to the floor and sat on". Mr Rogers put that medical examination of Mr X on the day after the event revealed no other injury, which he submitted further contradicts Ms Merlino's description of the event, on which account it could be expected that Mr X would have suffered a broken nose and/or some bruising. 106 Mr Rogers noted that Mrs Goodbar's evidence directly contradicts that of Ms Merlino. Mr Rogers submitted that Ms Merlino's evidence that Mrs Goodbar was not in the dining room, and that of Mrs Goodbar that she was, is a matter to be resolved by the Commission on the view taken as to the reliability of the witness. 107 Mr Rogers noted that Mrs Goodbar was not cross examined on her testimony that she was in the dining room, though it had been put on notice. 108 Mr Rogers submitted that it is possible that Ms Merlino simply did not see Mrs Goodbar, putting that the "excitement" of the occasion interfered with the perception of Ms Merlino. Mr Rogers submitted that Ms Merlino is a sensitive person, severely effected by the stress of the event which resulted in her sitting in her car crying before she could drive home, and a week later was still so shaken she could not write out her statement. 109 Mr Rogers submitted that while the Department relies upon the reaction of Ms Merlino to support their version of the violence involved, it is equally open to the construction that Ms Merlino is a person who found the entire environment, the dispute over the plate of food, Mr X's throwing of the plate and his falling too much to cope with and her faculties simply closed down. 110 Mr Rogers put that the necessary comfortable satisfaction could not be drawn from Ms Merlino's evidence. 111 Mr Rogers submitted that Ms Merlino provided conflicting versions of critical events, first deposing in her statement of evidence (Exhibit 8, paras 23-24): 23. I saw that Wil Ferrett and Mr X were in Mr X's bedroom, which is diagonally opposite the dining room down the hall.

24. Nurses, Alan Martin and Sandy Mitchell, plus 2 others appeared and went to Mr X's bedroom. 112 Then in oral evidence Ms Merlino put that Mr Ferrett was sitting on Mr X when Mr Martin and others arrived and that she had informed the police of this when interviewed. 113 Mr Rogers put that if Mr Martin and others had seen Mr Ferrett sitting on Mr X they would have been called to give evidence, putting that the Commission is entitled to draw the obvious inference that her recollection is wrong (see Jones v Dunkel (195) 101 CLR 298). 114 Mr Rogers noted that an initial charge against Mr Ferrett, that he sat on Mr X, was withdrawn. 115 Mr Rogers submitted: It doesn't seem to be something she'd have a reason to make up. It just seems to be something that she has either mis-seen or in the course of the week before she reported it mulling it over in her mind has as it were reorganised. 116 Mr Rogers submitted that in contrast the evidence of Mrs Goodbar is consistent with that of Mr Ferrett, noting that Mrs Goodbar deposed that she did not see Mr X fall which, if she had, would have been helpful to Mr Ferrett. Mr Rogers submitted that the conclusion to be drawn is that Mrs Goodbar provided evidence of her observations in an honest, impartial manner and on one view could have been expected to be called by the Department. 117 Mr Rogers put that the evidence of Mrs Goodbar put Mr Ferrett and Mr X in the same position in the dining room as described by Mr Ferrett, which is a different location to that identified by Ms Merlino in her evidence. 118 In referring to a diagram showing the location of Mr Ferrett and Mr X seated at different tables, and where Mr X lay at the conclusion, Mr Rogers submitted: In my respectful submission unless the Commission is to find that Ms Goodbar simply is lying about being there at all that document is conclusive that on that point Mr Ferrett is correct and Ms Merlino is wrong and importantly has been wrong throughout because it has always been her version as one understands the evidence that Mr Ferrett was sitting at Mr X's table. Again it's hard to quite know what's occurred but one expects that what really has occurred is that Ms Merlino's evidence is a construct of things she saw, things she assumed had happened and things that in the heat of the moment she hasn't properly taken in but has filled it in her mind later on. … … In my respectful submission the Commission would be entitled to infer that the same thing occurred on this occasion and that even with the best will in the world she simply at least by the time she reported the matter had a completely wrong view as to what had occurred. 119 Mr Rogers submitted that this conclusion is further supported by the testimony of Ms Merlino that after Mr Ferrett left the dining room Mr X crawled after him across the floor bleeding profusely whilst observed by Mr Martin and others who did nothing. 120 Mr Rogers put that Mr Martin or the others could have been called to corroborate Ms Merlino's evidence, submitting that they were not because the events simply did not happen that way; and it is fanciful to expect that trained nurses would not attend to a client in the state Ms Merlino described Mr X to be. 121 Mr Rogers submitted that in her statement of 7 October 2005, and subsequent interviews by the police and Mr Davis, Ms Merlino made no mention of blood on the wall from Mr X, yet in her statement (Ex 8 para 18) she deposed that: A little later I went out into the dining room, picked up the cloth from the Trolley where the dirty dishes are put, noticed blood on the wall and floor and started to wipe the blood off the wall. 122 Mr Taylor submitted that the onus of proof had been met by the respondent. Mr Taylor put that the Department followed the guidelines prescribed by the Public Sector Act. 123 Mr Taylor acknowledged that the credibility of witnesses is very much an issue, putting that no motive to mislead had been established in respect to Ms Merlino and that she had given consistent evidence under the stress of cross-examination and police inquiry that she had seen Mr Ferrett push Mr X into the wall and onto the floor resulting in injury to Mr X. 124 Mr Taylor submitted that the food obtained by Mr Ferrett, said to be for another client and described as a "chunky stew", was inconsistent with the client's dietary restriction to "mushy or pureed consistency". 125 Mr Taylor submitted that the inference must be drawn that Mr Ferrett took the food for himself and actually had no reason to be at any particular seat and could have sat at the same table as Mr X, as Ms Merlino deposed. 126 Mr Rogers disputed this assertion on the basis of evidence from Ms Merlino that the particular client could eat the "chunky stew" if it was cut up for him. 127 Mr Taylor submitted that Mr Ferrett offered two versions of the event; the first that Mr X simply stood up and fell over; the second that Mr X took food from him, there was a tussle, the food was thrown and Mr X fell. 128 Mr Taylor submitted that the inference to be taken is that reporting is at best inaccurate and at worst possibly dishonest. 129 Mr Taylor submitted that Mrs Goodbar did not corroborate the evidence of Mr Ferrett, putting that one version, that Mr X stood up and fell, was not as described by Mrs Goodbar; and the other version, that there was a stationary tussle for the plate between Mr Ferrett and Mr X, Mrs Goodbar described as an event in motion moving between the tables. 130 Mr Taylor submitted: It could be inferred from the evidence that I've just summarised that the evidence to show that the department's action after following the required legislative processes and undertaking an independent investigation that found an assault had occurred was not harsh, unreasonable and unjust and in fact the department was duty bound to take the action that it took and to exercise its duty of care to ensure that its clients were not put in a position to be assaulted.

The department leaves this matter with the Commission to determine on the evidence that's been provided and in coming to that decision the department would ask that the Commission consider that the department considers that the employment relationship with Mr Ferrett has irretrievably broken down. 131 Mr Taylor referred to the decision of Commissioner O'Neil in Fitton v Department of Ageing, Disability and Home Care [2005] NSW IRComm 1199 as authority that where assault of a client occurs the Department is obliged to act, it must act in accordance with specific procedures, absence of police charges are irrelevant as different standards of proof apply, and that where assault is found dismissal is not harsh, unreasonable or unjust. CONSIDERATION

132 The evidence in this matter considered against the appropriate test described in Briginshaw leads to a conclusion in favour of Mr Ferrett. 133 I am satisfied that events unfolded in the manner described by Mr Ferrett and Mrs Goodbar. 134 Whilst there are some inconsistencies in the evidence as identified by Mr Taylor, they are minor and not entirely unexpected from independent recollections. Mrs Goodbar's evidence is that she dressed Mr X's wound; Mr Martin deposed that he dressed the wound; Mr Campbell deposed that he sent Mrs Goodbar to replace Mr Martin in another unit, however, it is not disputed that Mrs Goodbar participated in the phone order for sedation for Mr X, leading to the conclusion that there was an element of confusion by persons trained and experienced in the care of clients and not without some experience in this type of emotionally charged event. There is no evidence that Ms Merlino had experienced anything like this before, and for her it must have been all the more upsetting. 135 The evidence of Ms Russell, while of assistance in demonstrating that she and the Department officers acted as they should in accordance with statutory obligations, settled procedures, and good management, offers no assistance in respect to the events of 30 September 2005 as all the information held was by way of report not direct observation. 136 The investigation by Mr Davis is of assistance in resolution of the matter. The reports given to Mr Davis by the direct participants support the version of events recounted by Mr Ferrett and Mrs Goodbar compared to that of Ms Merlino. These events were after the fact of injury to Mr X, and shed no particular light on his actual fall, however, the disparity between their accounts of subsequent events and that of Ms Merlino adds weight to the submission of Mr Rogers that Ms Merlino was so distressed by events that her faculty of observation and recollection were impaired. 137 I find that Mr Ferrett did not assault Mr X but was swept up in a physical and emotional outburst by Mr X which, on the evidence, is an event occurring from time to time for reasons associated with medical condition and medication. 138 It may be that reporting of the event could have been better. I do not ascribe responsibility to Mr Ferrett for that. I am concerned that Mr Ferrett, who was also a victim of events, was required to report unaided. It seems to me that the Nurse Unit Manager, Nurse Campbell, or other senior officers not directly involved in the injury to Mr X could have and should have interviewed Mr Ferrett, Mrs Goodbar and Ms Merlino prior to the end of the shift and so soon as reasonably practical after the event to obtain a contemporaneous report and to ensure that continuation on duty is appropriate. I am concerned that Ms Merlino was allowed to drive herself home on 30 September 2005 in the emotional state she deposed overcame her. She too was a victim of the events. 139 I find the termination of Mr Ferrett's employment to be harsh, unreasonable and unjust. 140 I do not accept the proposition that there has been a breakdown in the employment relationship so as to render reinstatement impractical. Mr Ferrett has been a registered nurse for 34 years, employed in excess of six years by the Department. There is nothing in evidence to suggest Mr Ferrett's employment record is other than exemplary. 141 I determine that Mr Ferrett is to be reinstated to his former employment, all lost remuneration paid to him, and that there be no break in continuity of service. 142 The appropriate orders issue herewith. oo0oo

WILLIAM FERRETT AND DEPARTMENT OF AGEING, DISABILITY AND HOME CARE

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

1. Pursuant to section 89 (1) of the Industrial Relations Act 1996 the Department of Ageing, Disability and Home Care is ordered to reinstate Mr William Ferrett to his former position on terms not less favourable than those that would have been applicable but for dismissal.

2. Pursuant to section 89 (3) of the Industrial Relations Act 1996 the Department of Ageing, Disability and Home Care is ordered to pay to Mr William Ferrett the remuneration he would, but for being dismissed, have received before being reinstated in accordance with the order.

3. Pursuant to section 89 (3) of the Industrial Relations Act 1996 the period of employment of Mr Ferrett by the Department of Ageing, Disability and Home Care is taken not to have been broken by the dismissal. I so order.

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