Franks v Hunter New England Area Health Service

Industrial Relations Commission (NSW)|2007-07-01|Before: Harrison DP, Sams DP, Sheppard J

The Applicant's serious failings in the discharge of her duties bring this case within the category where the life (or quality of life) of terminally ill patients in the Respondent's case depends on the employee's reliability. The Respondent has a well founded basis for its doubts about the Applicant's reliability. 285 Mr Sebbens submitted that the Commission should consider the fact that the Respondent was misled during the course of its investigation when assessing the fairness of the Respondent's actions; and that failure to comply with reporting requirements and hindering the investigation provides grounds upon which the Respondent may now rely as reasons for termination of employment. 286 Mr Evans submitted that there is no impediment of impracticality to the reinstatement of Ms Franks. 287 Mr Evans relied upon the judgment of the Full Court (Wilcox CJ, Marshall and North JJ) in Perkins v Grace Worldwide (1997) 72 IR 186, and applied in Hollingsworth v Police Commissioner No 2 (1999) 88 IR 282; CCH Australia Ltd v Bowen (1998) 79 IR 206; and Oswald v New South Wales Police Service (IRC 4130 of 1997, unreported), to support his submission that mere discomfort of the employer is not sufficient to establish impracticality of reinstatement. 288 Mr Evans seeks reinstatement without loss of earnings subject to reasonable allowance for the delay in conclusion of proceedings due to his illness. In making this submission Mr Evans put that, had the employer implemented a performance management system, Ms Franks would not have been forced into the events giving rise to these proceedings. 289 Mr Evans submitted that reinstatement to the palliative care role is not sought by Ms Franks. The application is for reinstatement to Gloucester Base Hospital as a Registered Nurse. 290 Mr Evans submitted that Ms Franks was not responsible for the delay in proceedings which were occasioned by his poor health. Mr Evans emphasised that Ms Franks sought and obtained casual employment as a registered nurse in Taree, some 75 kilometres from Gloucester, requiring a 150 kilometre round trip on each engagement 291 Mr Evans submitted that in undertaking this work Ms Franks has maintained her high level of skills as a registered nurse and mitigated damages. 292 Mr Evans submitted that the application is less concerned with loss of earnings than restoration of employment, putting that this is open to discussion between the parties having regard to the delay and Ms Franks' earnings from casual work. 293 Mr Evans refuted the submission seeking to connect the filling of the position held by Ms Franks with the delay in proceedings, submitting that, had the matter been concluded in less than six months from the termination of employment, the Respondent had by then already filled the position. 294 Mr Sebbens submitted that Ms Franks could not be regarded as a witness of credit and her evidence should not be preferred. 295 Mr Sebbens submitted that Ms Franks provided inconsistent versions of events concerning Mr A and Ms B in the fact finding interview, in her written statements tendered, and in her oral evidence; altering her position to cover otherwise obvious misconduct on her part. 296 Mr Sebbens submitted that Ms Johnston accepted that she would benefit if the disciplinary action against Ms Franks and herself were cast in doubt, thus her evidence suffers from bias and should not be preferred. 297 Mr Sebbens further submitted that Ms Johnston and Ms Aird were involved in the events surrounding the allegations against Ms Franks and accordingly their evidence should be given little or no weight. 298 Mr Sebbens submitted that the statutory declarations of Ms B, Ms Meryl Blanchard and Ms Stephanie Colquhoun were not subject to cross-examination by the Respondent as none of the deponents were called by the Applicant. Mr Sebbens put that failure to call these witnesses should draw a Jones v Dunkel inference that any evidence of these witnesses under cross-examination would be unhelpful to the Applicant's case. 299 Mr Sebbens further submitted that the statutory declarations of Ms Blanchard and Ms Colquhoun concerned the preparations of Ms B's statutory declaration, submitting that they are hearsay and not relevant to any facts in issue in the proceedings and should therefore be given little or no weight. 300 Mr Sebbens refuted the assertion by Mr Evans that the inference from the principle enunciated in Jones v Dunkel be drawn from the fact that the Respondent did not call any patients as witnesses. He put that no such inference should be drawn where the Respondent has specific obligations under s 19 of the Health Services Act which requires that: …protection of a public health organisation's patients and clients … for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff. 301 It is Mr Sebbens' submission that the Commission should not draw any inference in circumstances where the Respondent had this statutory duty, the witnesses were not under the control of the Respondent and were equally available to the Applicant to be called under summons. 302 Mr Sebbens put that the onus rests on the Applicant to establish that the intervention of the Commission is warranted: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 303 Mr Sebbens noted that the Applicant was not summarily dismissed for serious and wilful misconduct. Whilst the Commission has ruled that the events surrounding the Applicant's resignation amounted to a constructive dismissal, this does not result in there having been a summary dismissal and the onus therefore does not shift to the Respondent to make out the fact of serious and wilful misconduct: Ryan and Anijes Pty Ltd t/as Anita Villa [2005] NSWIRComm 1231; Michal Kealy and Charmport Pty Ltd T/as Desktop Dining [1999] NSWIRComm 263. 304 Mr Sebbens submitted that the Applicant has not satisfied the onus showing that the resignation (which the Commission has ruled was a constructive dismissal) was, in the circumstances, harsh, unreasonable or unjust. Procedural Fairness 305 Mr Evans in reply relied on the evidence of Mr Devine and Ms Saville to demonstrate a lack of procedural fairness. 306 Mr Evans submitted that Mr Devine's evidence reveals a bias against Ms Franks which, taken with that of Ms Saville, demonstrates that the detail of allegations was not put to Ms Franks; and that she was afforded inadequate opportunity to review files and was prevented from copying any material for her defense. 307 Mr Evans relied upon Antanakopolous where the Full Bench said at p 389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 308 Mr Evans put: The Respondent could have afforded the Applicant procedural fairness. It is an organisation with immense resources. During the evidence by its witnesses, it detailed the investigation it had conducted. It never deemed it appropriate for a period of five months to discuss any of these issues with the Applicant. (Devine & Saville) It never followed up with Performance Management review; regular work audits or educational and instructional sessions in Taree during this period of time. During this period of time they vitiated any chance of the Applicant to continue her livelihood with the respondent. 309 Mr Evans submitted that Ms Franks was never given any warning of failure to adequately service clients. Mr Evans refuted the Respondent's assertion that, arising from the first investigation, Ms Franks was given a warning for "matters of a similar nature" to those subject to the second investigation. It is Mr Evans' submission that the only similarity is that the issues in both investigations arise from malicious gossip and innuendo, which were never supported by genuine or written complaints by clients or by employees of the Respondent. CONSIDERATION

310 The evidence establishes that there was an unacceptable level of discord and personality issues at Gloucester. Ms Koller's experience must be considered most unfortunate for her and the Respondent. 311 Taken together the evidence of all witnesses reveals that these circumstances had existed for some time, giving weight to the proposition advanced by Ms Koller that (Ex 45): Only with close managerial supervision and authority will the problems of Gloucester be rectified. 312 The difficulty is that the necessary level of management supervision and authority seems to have been absent. 313 The first investigation revealed a range of work practices and personality issues which required attention and correction. 314 The evidence leaves open a finding that Ms Franks, supported by Ms Johnston, was strong willed and determined to carry out her duties in the manner in which she saw fit, and had been allowed to do so for many years. 315 Even if this were the case, it is not reasonable nor appropriate to hold Ms Franks or Ms Johnston wholly responsible for those circumstances. 316 Both Ms Franks and Ms Johnston were long serving employees. If their attitudes and behaviour were inappropriate, it was a creation of the corporate history of the Gloucester medical facilities in which they had worked for some 40 years. 317 To the extent management required work practice changes or attitudinal adjustments, the process of consultation and, if necessary, application of the disputes procedure contained in the relevant industrial instrument, was available. This process is designed to actively engage the employees, their union, and the assistance of the Commission in a review of circumstances and determination of the proper and necessary outcomes. 318 This case is a prime example of the difficulties encountered when disciplinary alternatives are applied without first a pursuit of the process of change. 319 The conclusion by management to issue a warning and conduct remedial training was accepted by Ms Franks and not challenged in these proceedings. It is regrettable that the remedial training did not take place. 320 It is put that there are many reasons for this, including the availability of Ms Franks, and organisational restructure. This may be so, however, ultimately it is the responsibility of management to give effect to its own decision. 321 The second investigation is challenged in both form and substance. It is contradictory that Ms Franks was stood down from duty, albeit on full pay, on 11 April 2005 on the basis of conclusions reached by Mr Devine; and then invited to a fact finding interview on 15 June 2005. 322 The sequence of events suggests that management had formed a view, and the length of time between stand down and interview is unexplained and prejudicial to Ms Franks. 323 The evidence does not support a finding that Ms Franks failed in her duty to clients/patients. 324 The onus is upon the respondent to make out the allegations of misconduct to the civil standard of proof (see Briginshaw v Briginshaw (1938) 60 CLR 336). The Briginshaw standard of proof and its application is usefully restated by a Full Bench of the Commission in New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 wherein the Bench said (at paras 41, 42): 41. Given the seriousness of allegations such as criminal conduct and other conduct that might attract summary dismissal, a tribunal should not lightly make a finding that, on the balance of probabilities the appellant was guilty of the misconduct alleged. In this context, it is appropriate that we refer to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court observed: 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 ((1) See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). 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 ((2) Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). 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 ((6) See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276) 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 ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711): "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 ...". There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case. 42 The more complete extract from Briginshaw v Briginshaw quoted, in part, above in Neat Holdings was that: 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. 325 The evidence does not rise above clerical or record keeping practices that, on examination, are not entirely the responsibility of Ms Franks, and are an outcome of entrenched practices at Gloucester. 326 Ms Franks cannot be held accountable for the paucity of motor vehicle records as this standard of reporting had been accepted for many years. The outcome of the first investigation was intended to correct this but was never implemented. 327 Hospital records were not the responsibility of Ms Franks. If it is to be that persons other than ward staff contribute to those records, then a clear instruction should be issued. 328 There is no direct evidence from any of the patients or carers of those people Ms Franks is alleged to have failed to service. This evidence does not rise to the level of statement, statutory declaration, affidavit or even written complaint. 329 I do not accept that the provisions of s 19 of the Health Services Act prevent the Respondent from obtaining any evidence at all. This legislation did not prevent Mr Devine and Ms Saville from visiting the carers of Mr A on two occasions. 330 The conclusions of Ms Cain are translated into the allegations put against Ms Franks to justify the termination of her employment. 331 Ms Cain was not called to give evidence. Mr Devine deposed that he relied upon her conclusions as a health professional to assist him in execution of the disciplinary process. 332 Objectively analysed and without the benefit of evidence from Ms Cain, her conclusions amount to no more than an opinion that she would have done things differently. The difficulty is that this does not prove that Ms Franks has acted wrongly, simply that another registered nurse would have taken a different course of action. 333 Ms Saville accompanied Mr Devine to the residence of three clients and participated in interviews of family members. 334 It is appropriate to identify the clients as Mr A, Ms B, and Mr C. 335 It is necessary to carefully consider the evidence in respect to these clients as much weight is placed on the allegation that Ms Franks failed to attend to these clients and/or created false records. Mr A 336 The evidence of Ms Saville is that Mr A had recently passed away and the interview was with relatives who had cared for him in their home. Mr A's family confirmed that Ms Franks did not attend their residence as she claimed on the day that Mr A passed away. Mr Devine recounts the visit with the carers of Mr A in the following terms (Ex 40, attach. H): … according to the work notes of Ms Franks she attended the family on the day of the death, organised the body and spoke with the funeral director and this was booked out for around four or 6 hours of work. When speaking to the carers of Mr [A], we indicated that I was the Director of Corporate Support for the CARE Network and that I was reviewing services provided by the Community Health Centres throughout the Area Health Services. This in fact was one of my duties for the new health service. I asked the [carers] over a period of 45 minutes three specific questions. These were: 1. It must have been a relief to have a member of the Area Health Service, a Community Nurse with you, when Mr A died and you were preparing the body. The answer to that was nobody attended. We only spoke to Ms Franks on the phone.

On the day of the death when Ms Franks visited you, what services did she provide? The woman said "Mr Devine you are confused, Ms Franks did not visit us on that day."

Do you think that the Area Health Service should provide assistance to people when the person that they are caring for has died? The response by both of the people was "well it didn't matter to us, there was nobody here from the Area Health Service and we managed quite well."

337 Ms Franks offered a reply to the allegation in a statement directed at the specific circumstances of Mr A (Ex 34), which is marked confidential as it canvasses many personal and medical details, put by Ms Franks to demonstrate that she had a close rapport with Mr A, who had confided in her very personal issues, including his difficulty in coping with the circumstances of being one of the stolen generation. Ms Franks gave evidence of discussions of precise events surrounding Mr A's passing and discussions with his carers, which are put to refute the assertion that she did not attend to Mr A adequately. 338 Ms Franks deposed that on advice of Mr A's passing from his sister on the morning of 7 April 2005 she immediately went to their residence to assist them. 339 Ms Franks described in detail the clothing worn by Mr A and asked his carer whether she wanted the body dressed in anything special or an item of significant meaning sent with him with the funeral director. 340 Ms Franks deposed that discussion ensued concerning apprehensions by the carers as to whether Mr A may have given himself an overdose of medication. Ms Franks deposed that she was sensitive to the attitude of the carers that they did not want to address this matter on the day of Mr A's passing and afforded them some time to approach the general practitioner. Ms Franks deposed that she offered advice to the carers which apparently was not taken. 341 Ms Franks' evidence is that she spoke with Mr A's sister by telephone the next day to offer further assistance and repeat her advice and was informed that they were very busy with family and funeral arrangements. Ms Franks invited Mr A's sister to call at any time in the future if she required further assistance but no further contact was made. 342 Ms Franks put that on departure from Mr A's residence on 7 April 2005 she made two calls on the palliative care mobile phone, one to RN M Johnston and one to RN C Stewart to inform them that she had left the residence and enquire if they needed assistance. 343 Ms Franks deposed that she is at a loss to understand why Mr A's carers were said to have stated that she did not call to the household on the day of Mr A's passing. 344 In cross-examination from Mr Evans Ms Saville conceded that she had not checked motor vehicle records to determine whether Ms Franks had logged a trip to the residence of Mr A on the day she claimed to have attended to support the family and assist with funeral arrangements. Ms B 345 Mr Devine's evidence contains an account of the interview with Ms B on 2 May 2005 (Ex 40, attach. H). Mr Devine deposed that: The patient was clearly distressed by the fact that I was there as she had had difficulties with males during her upbringing and was frightened of any male whom she had not been introduced to and acclimatised to. The patient was asked for a brief description of services that she was provided by Community Care in the last three months and she named a number of nurses and spoke about the times that they had been there. She was cogent, the discussion followed a logical path and it was clear that she understood exactly the sorts of interventions that the Health Service was taking with her and over what time scale. When Louise first asked, and I then asked follow up questions, about the visits of Maree Franks, she said that she had not seen Ms Franks for months and months. When pressed for the exact time she indicated that it was something like six months or longer since when Ms Franks had last visited her, she could not be sure but she said it was certainly not in the last three months. 346 Exhibit 21 is a computer generated record of service contacts by Ms Franks, extracted from the MNCAHS Primary Health and Extended Care Information System, which records 41 contacts in the period 29 July 2004 to 28 March 2005. Exhibit 8 is a similar computer generated document which records seven contacts with Ms B from 5 August 2004 to 19 May 2005. Exhibit 44 is progress notes made by Ms Blanchard which record a home visit to Ms B on 5 August 2004 undertaken at the request of Ms Franks. 347 Handwritten clinical notes (Ex 9 and 21) detail the service contacts with Ms B by Ms Franks, Ms Sutcliffe, Ms Blanchard, Ms Stewart and Ms Fleming. These records detail the contact with Ms B and the subject matter of concern. These records show 12 contacts by Ms Franks; 11 contacts by Ms Sutcliffe, 6 contacts by Ms Blanchard, and various attendances by other health care professionals. The records further reveal that on 2 May 2005, the occasion of interview by Mr Devine, Ms B was apprehending a hospital visit and was counselled by Ms Blanchard on 3, 6, 11, 16, 17 and 19 May. 348 Criticism is made of Ms Franks concerning the lack of information provided in her reports, in particular that her visit to Ms B on 14 March 2005 was in company with Ms Blanchard, however, there is no reference to Ms Blanchard in the report. 349 Exhibit 39 is a statement in response deposed by Ms Franks which details her service to Ms B, setting out a level of patient knowledge which it is put could only be gleaned from frequent and regular contact. 350 Exhibit 48 is a statutory declaration sworn by Ms B on 6 July 2006 in which Ms B declares that: …I remember Maree as visiting me regularly at least once or twice a week. She helped and supported me when I was despondent & was like a counsellor & when went out of her way & did things for me that she didn't have to do, she went way beyond. I remember when I wasn't eating & I didn't have groceries that she organised the Welfare Worker to come & sort it out. … She has reassured me about a lot of difficult aspects of my life & has been a constant, ongoing support. Mr C 351 Mr Devine and Ms Sutcliffe were unable to arrange a meeting with the client identified as Mr C. 352 Ms Franks was criticised for not servicing Mr C in accordance with the palliative care protocol which requires clients to be designated as stable; unstable; deteriorating; or terminal, with corresponding visit frequency of 2-4 weekly; weekly; 2 - 3 times per week; and daily. 353 The evidence of Ms Franks is that Mr C had undertaken a trip to Europe with his wife and grandchildren from 1 September 2004. Ms Franks deposed that Mr C could not have been considered unstable in August, prior to his trip. Ms Franks' evidence is that Mr C returned from Europe in late 2004, she saw him on 14 December 2004, then she was on leave during January and February 2005. 354 Ms Franks deposed that Mr C would have been attended to by other staff whilst she was on leave. 355 It is appropriate to consider each of the ten specific allegations made against Ms Franks: 1 Not seeing the following patients as per instructions and guidelines for the frequency of visits and care for palliative patients: s [Mr C] s IA 356 There is no evidence of an instruction that Ms Franks attend to either of these clients on any particular occasion. 357 Ms Sutcliffe may have made appointments, but she was in no position of authority to instruct Ms Franks. An examination of the appointments made by Ms Sutcliffe give rise to the same concern. 358 Ms Sutcliffe's evidence is that she made appointments for Ms Franks to make home visits to Mr A, Mr C, and Mr D; and to see Mr G in hospital on 20 January 2005. 359 The appointments made by Ms Sutcliffe for Ms Franks to attend to on 21 January 2005 were home visits to Mr FP, Ms D, Ms Mc, Ms DR, Ms W, Ms J and Mr A. A home visit to Mr A involved a 150 kilometre round trip. A genuine concern arises that the arrangements made put Ms Franks in a position where she could not possibly attend upon the clients and provide any meaningful service. 360 Mr C and IA are identified by Ms Sutcliffe as clients not seen by Ms Franks for lengthy periods. 361 The Palliative Care Guidelines are, as identified, guidelines to be used in determining the necessary and appropriate attendance upon a client. The guidelines are not a protocol or procedure to be followed and applied as a strict schedule without room for discretion. 362 Mr Devine and Ms Saville were not able to contact Mr C. This is consistent with the evidence of Ms Franks that he was difficult to contact. 363 The evidence of Ms Franks that Mr C undertook a trip to Europe with family members is not refuted, nor is her evidence that he was attended to by other staff. 364 There is no evidence, or even a hint, of complaint from Mr C or family that Ms Franks or the MNCAHS had neglected him. 365 The allegation in respect to IA is not supported by the evidence, which includes reference to medically qualified relatives expressing satisfaction with Ms Franks. 2. Falsifying AHS attendance and work records regarding the visit to [Mr A] on the day of his death which we were told by the family did not happen; seven (7) visits recorded to [Ms B] which she informs us did not happen during the period of 2 March 2005 until 31 March 2005.

Falsifying medical records for the instances outlined in point 2 above. 366 The only evidence in respect to Mr A is that of Mr Devine and Ms Saville having visited the carers, as opposed to that of Ms Franks. This evidence does not include a complaint from the carers or any dissatisfaction with the assistance given by Ms Franks. The only point of difference is that Ms Franks says she attended on the day Mr A passed away, which the carers denied to Mr Devine, who concedes that the carers were not entirely sure who he was or his purpose, referring to him as a nurse. 367 The evidence of Ms Franks is more plausible, demonstrating a high level of professional knowledge of the circumstances and the anxiety of the carers over their apprehension that Mr A had subjected himself to an overdose of medication. 368 That Ms Franks afforded the carers some time to resolve their concern and come to a conclusive view that they should or should not inform the treating general practitioner (GP) is a matter of professional judgment for which she should not be criticised. 369 Ms Franks was then on leave and stood down from employment from 11 April 2005, denying her further contact with Mr A's carers or the GP. Ms Franks cannot be held responsible for taking no further action as she was directed by her employer to stand down. 370 There is no evidence of a report by the carers to the relevant GP. If they did report their suspicions they acted in accordance with the advice of Ms Franks. If they made no report it is open to conclude that, on reflection, at a time post the emotional shock of Mr A's death, they held no suspicions and had nothing to report. 371 In either event Ms Franks could not be held culpable as she was in no position to make her own independent investigation. There could be many reasons for the carers being unable to recall Ms Franks attendance on the day Mr A passed away, ranging from the trauma of the event, embarrassment at having exposed their initial suspicions, or simply the business of funeral arrangements and associated events involving a large number of people. Ms Franks deposed that she was advised by telephone not to call as the carers were busy with those matters. 372 The allegations in respect to Ms B are not supported by the evidence, the best evidence that is obtained from her is supportive of Ms Franks. 4. Pre-arranged visits for Palliative Care Clients on 20 and 21 January 2005 where the car log sheets indicate client visits between 9:00 to 15:00 hours on 20 January 2005 travelling 21 kilometres, and 9:00 to 15:30 hours travelling 31 kilometres on 21 January 2005. No evidence of client visits or contact to cancel these pre-arranged visits. 373 The motor vehicle records are supported by the evidence of Ms Sutcliffe and Ms Franks that Ms Sutcliffe made appointments for Ms Franks for 20 and 21 January 2005. The clients to be visited are identified by Ms Sutcliffe in her evidence, one of them being Mr A, which visit did not occur and would have required a much longer journey. Apart from the physical impossibility of visiting all the clients with whom Ms Sutcliffe had made appointments on the dates nominated, the absence of evidence of whom Ms Franks actually visited is not a foundation for dismissal. 5. Falsification of medical, attendance and work records for the following people whom you indicated you visited in hospital, yet no indication of the visits are in the hospital records or the work you allegedly undertook.

• EN • BH • AS 374 Analysis of exhibits 25, 26, and 27, which are the records tendered for these patients, does not support the allegation. 375 The substance of the allegation is that hospital records do not support the statistical records created by Ms Franks which record the work undertaken by her. 376 The Commission is asked to infer that because a ward nurse recorded Ms Franks attendance on one occasion, her attendance would have been recorded on every occasion she attended a client in hospital. This inference is simply not available. An examination of the hospital records reveals that they are completed by a variety of ward staff, from experienced registered nurses to student nurses. There is no evidence of a hospital guideline or protocol describing what events should be recorded, and there is absolutely no evidence from any of the hospital staff as to the practice applied. 6. Poor patient record keeping not of a standard required by a registered nurse. I note you were a Clinical Nurse Specialist in Palliative Care and dropped back at your request. (See attachment A) 377 To the extent that patient records were not completed to the satisfaction of the Respondent, this could be remedied by instruction and remedial training of the type proposed following the first investigation. 378 I note that the content and style of client records was under active disputation between Ms Koller, Ms Franks and Ms Johnston, the latter accusing Ms Koller of inappropriate subjective comment. 379 This is not a ground which could support termination of Ms Franks' employment. 7. Intentionally misleading management about your whereabouts and conduct of your duties when you were allegedly not doing your assigned duties. 380 This allegation suffers the same evidentiary flaw as those above and is drawn from those circumstances, particularly Mr A. 381 The allegation in respect to Mr A is not supported by evidence. 382 There is no evidence to support the allegation of intent in any of the circumstances in which the Respondent regards Ms Franks' record keeping inadequate. 8. Possibly behaving in a manner that has brought about adverse patient outcomes for patients involved in the palliative care process. 383 This allegation is self-defeating. The assertion that Ms Franks has "possibly" done something conveys the lack of factual base throughout these proceedings. The evidence does not support a finding that Ms Franks in any way caused or contributed to an adverse outcome for palliative care clients. 384 The evidence of Mr Devine is contradictory to this allegation. Mr Devine deposed (TR 30/5/06, pp 34, 35) A. Mr Evans, on every person that I spoke to who Ms Franks serviced appropriately, they spoke glowingly about the service that they received from Ms Franks. The [carers for Mr A] spoke, even on Friday, [the carers] again told me what a good nurse they thought Ms Franks was. So you're asking me a question and the only way I can answer it is, is it symptomatic, well, I don't know, because the difficultly I've got is that I actually accept that Ms Franks is a good nurse when she provides the service that she's supposed to. What I don't understand and what I couldn't find out and what I've never been able to get to the bottom of, why some people were serviced and others weren't. I wanted that quality of care as a representative of the Area Health Service, if I could have got that quality of care that Ms Franks clearly elicits from some people right across the board, we'd have a very very happy outcome. 385 There is no evidence of complaint by any person referred to by Mr Devine. 9. Failure to follow procedures and guidelines in relation to patient care and case management of palliative care patients. 386 This allegation is a repeat of earlier assertions. The allegation lacks substance, which was not remedied by evidence. 10. Failure to assist other nurses when you did not have work to do, or intended not to do work that you had and they were busy. Thus providing an environment destructive to team work and causing difficulties for the AHS in providing adequate and timely care to general community health patients. 387 The specific foundation of this allegation is obscure. To the extent it is founded upon the dispute with Ms Koller, it is unsustainable. To the extent it is founded upon the accusations of Ms Sutcliffe it suffers from lack of evidence. There is not one assertion, let alone evidence, of a member of the nursing staff requiring or requesting assistance and being refused by Ms Franks. The allegation is no more than a subject assessment by those framing the charge. 388 Their evidence does not support a finding that the allegation is either specified or made out. 389 The allegations are followed by reference to a final warning given about matters substantially similar raised in the previous ten matters. 390 There is no evidence of a "final" warning, nor is the assertion of substantially similar subject matter concerning when the current allegations are reviewed. 391 The evidence is that Ms Franks was given a first level warning. The Underperformance and Discipline Manual ("the Manual") of the Respondent is tendered (Ex 59, folio 59). The discipline process for less than serious misconduct provides for informal counselling, a first warning followed by a second or final warning prior to disciplinary action of transfer or dismissal. 392 Guidelines for managers are provided as assistance in the assessment and investigation process, which includes the form of a Final Warning - Serious Misconduct. 393 Section 3 of the Manual deals with Under Performance procedures which provide for informal counselling, a first Performance Management Counselling, followed by a second or final Performance Management Counselling prior to disciplinary action of transfer or dismissal. 394 It is inconsistent with the procedures to categorise a first level warning as a final warning. Whether it be a disingenuous exaggeration of the circumstances put against Ms Franks, or a simple mistake, there is an obvious failure to afford procedural fairness. 395 If it were to be accepted that the subject matter was sufficiently similar for the warning arising from the first investigation to be effective, the utility is lost by failure of management to implement the assistance deemed appropriate to Ms Franks. CONCLUSION 396 The termination of employment of a person with 36 years service on the basis of assumptions, inferences and suspicions, unsupported by evidence, is harsh, unreasonable and unjust warranting intervention by the Commission. 397 I accept the arguments advanced by Mr Evans that reinstatement is not impractical. The Respondent's argument that the position has been filled, and having regard to the time taken to conclude proceedings, is not persuasive when considered in the context of Ms Franks' years of service, and the flexibility in placement available by an order for re-employment. 398 I note the submission of Mr Sebbens that restoration of remuneration should be limited to the period from dismissal to the date upon which written submissions would have been concluded but for the illness of Mr Evans. These circumstances are not an ordinary matter of agent error, but an unfortunate situation not the fault of any party. 399 In addressing this aspect of the matter I have regard to the mitigation of damages by Ms Franks in obtaining interim employment as a registered nurse; and allow some reasonable time for conclusion of the matter post completion of written submissions. 400 I make orders for re-employment, continuity of service, and restoration of remuneration lost from dismissal to 1 October 2006 adjusted by monies earned by Ms Franks from employment in that period. Earnings from 1 October 2006 to re-employment are not included in the consideration. 401 Matter No IRC 3947 of 2005 is so concluded. ooOoo

MAREE JOY FRANKS AND HUNTER NEW ENGLAND AREA HEALTH SERVICE Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Pursuant to s 89(2) of the Industrial Relations Act 1996 the Hunter New England Area Health Service is ordered to re-employ Ms Maree Joy Franks within 14 (fourteen) days of the date of this Decision to the position of registered nurse at the Gloucester Health Facility, or in such other position as agreed between the parties.
Pursuant to s 89(3) of the Industrial Relations Act 1996 the Hunter New England Area Health Service is ordered to pay a sum equal to the wages lost from date of dismissal to 31 October 2006, less any remuneration otherwise received by Ms Franks.
Pursuant to s 89(4) of the Industrial Relations Act 1996 I order that the period of employment of Ms Franks with the Respondent is taken as not having been broken by the dismissal.
Liberty to apply within 14 (fourteen) days of the date of this Decision as to the final form of Orders 1 and 2 in the event that the parties are unable to reach agreement on any aspect thereof.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Coroner's Act 1980(NSW)

Allison v Bega Valley Council (1995) 63 IR 68 Harmer v Cornelius (1858) 5 CB(NS) 236 Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 Hill and Department of Juvenile Justice [2000] NSWIRComm 128. Standley v Electronics Boutique Australia Pty Ltd (IRC 4516 of 1998, Sams DP, 18/3/99, unreported) Thornton and Happy Hours Pre School Kindergarten (IRC 5333 of 1999, Sams DP, 29/7/99 unreported) Taggart and Bell Sports Australia (IRC5224 of 1998, Sams DP, 10/9/99, unreported) Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 George Albert Byrne & Anor v Australian Airlines Ltd (1995) 69 ALJR 797 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Wilson v Department of Education and Training (2000) 100 IR 1 Burke v McGirr (1995) 87 IR 54 Oswald v NSW Police Service (1999) 90 IR 42 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Abboud v The State of New South Wales (Department of School Education (1999) 92 IR 32 Buckman v Burdekin (1998) 85 IR 415 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Police Commissioner (No 2) (1999) 88 IR 282 Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 Mills v Central Sydney Area Health Service [2002] NSWSC 728 Bankstown City Council v Paris [1999] NSWIRComm 585 CASES CITED: Foster and Woolworths Limited [2000] NSWIRComm 208 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Concut Pty Ltd v Worrell (2000) 103 IR 160 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 John Lysaght Australia Limited and Federated Ironworkers' Association of Australia, New South Wales Division and Ors (Matter 259 of 1972, Sheppard J, 14/9/72, unreported) New South Wales Nurses' Association (on behalf of David Harding) and Western Sydney Area Health Service [2002] NSWIRComm 35 Tarello v Kemlex Pty Ltd (t/as First Impressions) (IRC 1275 of 1993, Connor CC, 27/8/93, unreported) Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) v Urban (1998) 81 IR 341 Employers' Federation of New South Wales v Greco (1993) 51 IR 451 MacLeay Valley Health Service v Jeffree (1994) 58 IR 187 Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 North v Television Corporation Ltd (1976) 11 ALR 599 CCH Australia Ltd v Bowen (1998) 79 IR 206 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Ryan and Anijes Pty Ltd t/as Anita Villa [2005] NSWIRComm 1231 Michal Kealy and Charmport Pty Ltd T/as Desktop Dining [1999] NSWIRComm 263 Jones v Dunkel (1959) 101 CLR 298 Briginshaw v Briginshaw (1938) 60 CLR 336 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Hocking v Bell (1945) 71 CLR 430 Rejfek v McElroy (1965) 112 CLR 517 Helton v Allen (1940) 63 CLR 691 Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 Jonesco v Beard (1930) AC 298 Motchall v Massoud (1926) VLR 273

[1999] NSWIRComm 585

[2005] NSWIRComm 1231

[1999] NSWIRComm 263

[1999] NSWIRComm 240

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