Health Care Complaints Commission v Ziyambi

Issues

1. The issues for the Tribunal to determine are whether any of Mrs Ziyambi's alleged conduct, as particularised by the Commission, is established on the evidence and if so, whether Mrs Ziyambi is guilty of unsatisfactory professional conduct and/or professional misconduct under the National Law.
2. We have carefully considered the evidence before us and the submissions made. For the reasons set out below, Mrs Ziyambi has admitted and we are satisfied that Mrs Ziyambi performed work for her private business on two occasions while on duty at Genista. Mrs Ziyambi also admitted and we are satisfied that she failed to disclose her secondary employment. We are satisfied that each of this conduct by Mrs Ziyambi was improper and constitutes unsatisfactory professional conduct. However, we do not consider when considered separately or together, that this conduct is sufficiently serious to justify the suspension of her registration and it does not constitute professional misconduct. As for the balance of the alleged conduct as particularised by the Commission, we are unable to be satisfied on all of the evidence that this conduct occurred.

Materials before the Tribunal

1. The Commission relied on various materials including: a transcript of a hearing conducted under National Law, s 150 ("s 150 hearing") on 8 March 2023; statements from Ms Penny Pajic, the Facility Manager at Genista, dated 19 April 2023, 14 July 2023 and 20 December 2023; statements from Ms Anna Stillone, the Chief Executive Officer ("CEO") of Genista, dated 20 April 2023 and 14 July 2023; statement from Ms Loiloi Pakileata, an Assistant in Nursing ("AIN") at Genista, dated 19 April 2023, statements from Ms Jennifer Walker, an AIN at Genista, dated 19 April 2023 and 29 May 2023; a statement of Ms Roselle Dominguez, an RN at Genista, dated 19 April 2023; statements of Ms Mala L'olive, an AIN at Genista, dated 19 April 2023 and 18 July 2023; statement of Ms Sylvia Prince, a AIN at Genista employed as the administration officer, dated 19 April 2023; various policy documents; practitioner supervision reports for the period 6 June 2023 to 14 November 2023; further documents of the Commission comprising evidentiary certificates and notices under Health Care Complaints Act, s 34A; an affidavit of Ms Maryanne Rogers (solicitor for the Commission) dated 23 April 2024; the Commission's Chronology; the Commission's "Summary of Disputes" document; documents produced under subpoena by Genista being rosters for the period 15 January 2022 to 24 January 2022, 28 January 2022 to 3 February 2022 and 24 July 2022 to 4 August 2022; written submissions dated 30 April 2024 and submissions in reply dated 10 May 2024; the Amended Application; a medical certificate from Dr James Jeong regarding Ms Stillone dated 22 April 2024 ("medical certificate"); email correspondence between Ms Rogers and Ms Stillone from 21-23 April 2024; Ms Rogers' file note of a conversation with Ms Stillone on 22 April 2024.
2. Mrs Ziyambi relied on her Reply to the Application; her statement dated 15 March 2024; a statement from her husband, Mr Mambasa Ziyambi, dated 14 March 2024; a statement from her daughter, Miss Mitchelle Ziyambi dated 15 March 2024; a statement dated 14 March 2024 from Ms Rangila Sundar, a RN who was previously employed at Genista; a statement dated 14 March 2024 from Joseph Nkomo, an RN who worked with Mrs Ziyambi at Cumberland Hospital; a statement dated 15 March 2024 from Ms Kuljeet Kaur Virk, a RN who used to work at Genista; written submissions dated 9 May 2024.
3. Both parties were represented by counsel who made oral submissions during the hearing. Each of the witnesses were cross-examined except for Ms Stillone and Ms Dominguez neither of whom attended for the hearing.

The relevant law

1. The Tribunal may exercise the disciplinary powers conferred by Subdiv 6 of Div 3 of Pt 8 of the National Law if (a) it finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
2. The Commission bears the onus of proving the complaints against Mrs Ziyambi on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2 of Sch 5D. The approach to be adopted in making findings of fact in respect of matters in dispute was explained in Tsolis v Health Care Complaints Commission [2023] NSWSC 1599 at [93]: "While these proceedings are heard on a civil standard, when the Briginshaw test applies it is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue."
3. The principles relevant to disciplinary proceedings under the National Law are uncontroversial. The overarching principles are found in ss 3 and 3A of the National Law. Section 3B, a NSW provision, mandates that when determining proceedings, the Tribunal has the protection of the health and safety of the public as its paramount consideration.
4. Section 139B of the National Law provides a detailed list of behaviours that are covered by the term "unsatisfactory professional conduct" in relation to registered health practitioners in NSW. The relevant paragraph in regard to the complaint against Mrs Ziyambi is as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
5. The question of whether "other improper or unethical conduct" has occurred requires the Tribunal to make findings of fact: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [26].
6. The Tribunal considered s 139B(1)(l) in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 and stated: "[86] The words 'unethical' or 'improper' are not defined in the National Law. The Macquarie Dictionary defines 'improper' relevantly as 'not in accordance with propriety of behaviour, manners etc' or 'abnormal or irregular' and 'unethical' as 1. 'contrary to moral precept; immoral' and 2. 'in contravention of some code of professional conduct.' [87] Assistance in determining what is meant by 'improper' can also be gained from what the High Court of Australia said of the word 'impropriety' in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. [88] In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of 'improper conduct' in s 139B(1)(l) stating at [47]-[49]: 'The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is 'improper' has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.' [89] It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]."
7. The issue of providing false information (as particularised by the Commission in Complaint 1) was considered by the Tribunal in Health Care Complaints Commission v Picones [2018] NSWCATOD 56: "[103] Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional. [104] The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented. [105] A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting."
8. The question whether Mrs Ziyambi is guilty of professional misconduct is a separate question that only arises for determination after findings of fact have been made in respect of the particularised allegations.
9. Section 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
10. The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA) ("Chen"). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
11. The question for the Tribunal then is whether the conduct in question (as found) is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] (Basten JA), the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances".
12. In Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35] (Kirk JA), the Court noted that the "seriousness of the conduct" concerns not just acts or omissions but also the circumstances of their occurring.
13. Whether and to what extent the conduct of Mrs Ziyambi constitutes professional misconduct requires us to determine whether the contraventions considered as a whole are of a sufficiently serious nature to justify suspension or deregistration: Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].

Mrs Ziyambi's employment history

1. Mrs Ziyambi was trained as a nurse in Zimbabwe and was registered in Australia on 24 February 2003 as a Registered Nurse ("RN"). She was first employed at Cumberland Hospital within the Western Sydney Local Health District ("WSLHD") in 2006 and has been employed full-time as a nursing unit manager ("NUM") ever since.
2. In 2006, Mrs Ziyambi also commenced employment with Genista but resigned in January 2017. It is not clear from the evidence whether she was part-time or casual during this period but we do not consider anything of importance flows from this.
3. On 9 June 2019, Destiny Empowerment Care Services ("Destiny") was registered as a NDIS service provider business. Mrs Ziyambi and Ms Rose Maposa are both directors and shareholders of Destiny.
4. On 16 December 2019, Mrs Ziyambi recommenced casual employment with Genista as an RN but from 3 January 2020 was employed on a permanent part-time basis, working approximately 30 hours per fortnight on the Wednesday and Sunday night shifts. She remained employed with Genista until her employment was terminated on 2 February 2023. As the only RN on nightshift, it was part of Mrs Ziyambi's role to administer any prescribed medication.

Genista workplace

1. It needs to be noted that underpinning the complaints brought against Mrs Ziyambi, is a history of staff conflict and disharmony in the Genista workplace. This appeared to us to colour much of the evidence and we have recorded some of that background for context.
2. On 24 November 2021, the CEO, Ms Stillone, received an email from AIN Ms Walker at 1.28am complaining about an incident that had occurred during the night shift. The email records a conversation between Ms Walker and the RN Ms Sundar in which, among other things, there were references to other staff members being bullied by Ms Sundar. Ms Walker said in this email that she had tried to "work with Rangila and have asked her why she had a problem with me and nothing has worked."
3. On 25 November 2021, Ms Stillone received a letter addressed to Ms Jennifer Arkwright (of Genista) from Ms Sundar complaining about Ms Walker. It was also signed by various RNs and AINs including Mrs Ziyambi. The list of grievances was extensive and included things such as Ms Walker gossiping about other staff members including that because of their poor English, they are unable to work properly; her refusing to work on certain floors; and complaining about management including Ms Pajic's lack of qualifications to manage Genista. They said there was "no peace in the night shift" and were finding it difficult to work with Ms Walker.
4. On 25 November 2021, Ms Pajic and Ms Stillone interviewed Ms Sundar about the letter of complaint. On 1 December 2021, Ms Pajic and Ms Stillone interviewed Ms Walker about the complaint. Interviews were also conducted with AIN B and Ms Takalata.
5. The notes of the interview with Ms Walker (subsequently signed by her) record the following: "JW: Jennifer stated that she has been accused and confronted numerous times by Rangila for reporting the RNs sleeping during nightshift to management, and hence feels this may be a reason as to why the are proposing such allegations, as Jennifer stated, she is observed as a 'whistle-blower' or 'trouble-shooter' during night shift and the staff, therefore feel threatened… Jennifer stated that she has reported resident care issues/concerns to the RNs, however, concerns are never responded to, the RN's sleep during night shift after the first round. Further to this, other care staff on shift, don't like to wake the RN up to respond to issues, so they are often left to attend to issues, that would usually require an RNs attention. AS: Are you aware that you have a duty of care to report the above-mentioned issues to management? JW: I am aware, however I am frightened to report, as the staff will know its me. PP - Where do the RN sleep? JW - Radtizo (RN) usually makes her bed, using a geriatric chair and covers it with a bed sheet and sleeps in Lavender dining room, adjacent to the hair salon. If I am working in Lavender, the RN's Rangila/Ratidzo hide from me, and sleep in the Jacaranda Quiet room on leather lounges. The only RN's that don't sleep during shift is Sudip and Ibrahim. The RN's never ask care staff about any issues or concerns they have identified during their shift, and often have to handover to the morning RN. Ratidzo also filters a lot of staff from Genista to work for her agency, and then they come to work very tired. There are also issues of staff speaking in their own language, which is offensive and disruptive."

First unannounced visit

1. At about midnight on 2 December 2021, Ms Pajic and Ms Stillone conducted an unannounced visit at Genista.
2. During the visit, Mrs Ziyambi was found to be working on her personal laptop and also attending to personal business activities including printing Destiny timesheets on the Genista printer. A Google Chrome search history was performed on the reception desktop computer which showed that Mrs Ziyambi was accessing her personal emails and paying Destiny employees through Keypay. The search records for the period 9 November 2021 to 2 December 2021 were in evidence.
3. The records show that in addition to accessing Destiny information, Mrs Ziyambi also accessed her personal email on 11 November 2021 at 3.10am-3.14am, 3.58am-3.59am, 4.26am-4.27am; Wednesday 17 November 2021 10.51pm-11.04pm, 11.24pm-11.42pm, 11.58pm-11.59pm and 18 December 2021 at 12am-12.09am, 1.05am-1.14am, 2.11am-2.16am and 6.28am-6.30am. At 1.34am-1.35am on 2 December 2021, Mrs Ziyambi performed Google searches about "sleepover shift disability". She also accessed her personal email on 1 December 2021 at 11.26pm-11.46pm and 2 December at 12.29am-12.39am and 1.27-1.36am.
4. At 2am on 2 December 2021, an interview note was made by Ms Pajic and Ms Stillone. It records that Ms Takalata did not want to sign the complaint but that Ms Sundar allegedly had told her it needed to be signed "to get rid of Jennifer [Walker]". The word "statement" was placed at the top of the page. There are two signatures on the document: that of Ms Pajic and one other unidentified signature. Further, a handwritten file note (replaced with the word "statement") signed by AIN B records that she signed the complaint but did not accept all of it.
5. A "Please Explain" notice was emailed to Mrs Ziyambi concerning the complaints referred to at [37] above but also included: "Sitting at reception & not on the ward where you should have been to be accessible to staff … eating a meal at the reception desk …unprofessionally attired - no shoes on." In response to the notices, Mrs Ziyambi stated that she was on her break when she used her laptop and the Genista computer, when she ate her meal and took her shoes off. She responded that she was not sure why there was an issue with eating or taking off her shoes during her break.
6. On 8 December 2021, Mrs Ziyambi was interviewed by Ms Pajic and Ms Stillone. In that interview Mrs Ziyambi acknowledged she was using Genista resources for her private business and personal external interests but said she was on her breaktime and was unaware that she could not use her laptop or the Genista desktop to do this in her breaktime.
7. On 9 December 2021, Mrs Ziyambi was issued with a written warning. The warning was expressly relating to "inappropriate conduct and unethical behaviour demonstrated during your shift on the 1/12/21, in particular reference to a conflict of interest, using Genista Aged Care time and resources on external interests." It was further noted in the warning, "[f]rom our conversation I am well aware of your abilities and the fact that you recognized immediately that you had done wrong and I am confident that you will learn from this experience and ensure that nothing like this happens again."
8. Some handwritten notes concerning Mrs Ziyambi were kept by Genista as annexed to a statement of Ms Pajic. There are only four entries which record correspondence with Mrs Ziyambi on 6, 7 and 8 December 2021 and 2 February 2023. The first two entries were made by Ms Prince and the balance by Ms Pajic. There are no gaps on the pages between the entries. We note there is another alleged copy of the handwritten notes, annexed to the statement of Ms Stillone. However, this version is different in that the final sentence for the entry on 8 December 2021 is missing a word and more notably, this version includes directly after the 8 December 2021 an entry for 24 November 2022 which does not appear in the version attached to Ms Pajic's notes. Following the 24 November 2022 entry, the 2 February 2023 entry appears directly afterward on the page. Although the handwritten entries appear to be in the same handwriting and signed (at least) by Ms Pajic, the insertion of the entry of 24 November 2022 makes the two records quite different. No explanation was provided for the differences in the evidence before us nor was Ms Pajic cross-examined about this version of the notes.
9. Ms Sundar resigned from Genista in late December 2021. In a statement provided in support of Mrs Ziyambi to the Commission, Ms Sundar stated that after being interviewed by Genista management, "instead of the management addressing this as a group, they targeted me to a point where I resigned to keep my registration safe."
10. In May 2022, CCTV cameras were installed at Genista. In Ms Stillone's first statement, she said that because of the constant complaints regarding Mrs Ziyambi sleeping, the cameras were installed "to finally catch Mrs Ziyambi out, sleeping whilst on shift."

Patient A

1. Progress records for Patient A records that the 69 year old patient had multiple conditions including severe obesity (which resulted in her being bedridden), paranoid ideations that disturbed other patients and thereafter that she was verbally disruptive. Patient A demanded her needs be met before others and needed frequent attention because of pain in her legs requiring massage and she often demanded pain relief.
2. The register of drugs administered to Patient A for the period 18 December 2021 to 15 December 2022 were in evidence. Further, contemporaneous Genista progress notes for Patient A created by Mrs Ziyambi were in evidence for 18 January 2022, 15 February 2022, 1, 8, 22 and 29 March 2022, 18 July 2022, 11 August 2022 and 11, 18, 19 and 29 December 2022. Ms Pajic attached these to one of her statements but alleged that Mrs Ziyambi made these "after the time that staff had reported to me should would (sic) generally wake up at the end of her night shift". She did not explain the basis for this allegation.
3. Mrs Ziyambi made the following contemporaneous notes in respect of Patient A including the pain medication ("PRN") she administered: 18 January 2022 - "was buzzing frequently during the night … was awake all night demanding for coffee … opened her bowels 3 times during the night." 15 February 2022 - "complained of severe pain on her legs. PRN given at midnight with good effect." 1 March 2022 - "complained of severe pain on her legs. PRN medication and pain medication given as charted with good effect at 0400..." 8 March 2022 - "Constant buzzing during the night complaining of leg cramps… PRN … given at midnight as charted with no effect." 22 March 2022 - "…continuously buzzing asking for massage and other request. Requested for panamax due to her leg cramps and same given at midnight with no effect. Resident was awake most of the night." 29 March 2022 - "…constantly buzzing asking for massage due to leg cramps, assisted with needs. Awake most of the night." 18 July 2022 - "requested and given paracetamol 1gm at midnight for headache with effect." 11 August 2022 - "complained of leg cramps and requested cream to be applied 4 times this shift." 3 November 2022 - "complained of leg cramps and she requested for 1gm paracetamol, same given at 2300 hrs with effect. Constant buzzing during the night. Assisted with needs." 7 November 2022 - "complained of leg cramps and requested for panamax, same given as charted." 14 November 2022 - "…complained of leg cramps and requested for panamax, same given as charted at midnight." 24 November 2022 - " complained of severe leg cramps despite applying cream and massaging. PRN endone given with desired effect…" 28 November 2022 - "…severe leg cramps, prn paracetamol 1gm PRN given as requested with desired effect." 11 December 2022 - "complained of pain on both heels due to leg cramps, prn paracetamol 1gm PRN given at 2300 hrs awaiting effect." 18 December 2022 - "complained of pain on both heels due to leg cramps, prn paracetamol 1gm given at 2400hrs awaiting effect." 19 December 2022 - "complained of pain on both heels due to leg cramps, prn paracetamol 1gm given at 2300hrs with nil effect … Resident counselled regarding her behaviour, screaming loudly and disturbing other patients." 29 December 2022 - "… complained of pain on both heels due to leg cramps, prn paracetamol 1gm given at 0300hrs with nil effect. Resident awake all might buzzing all might constantly and screaming loudly. Staff attending to her nearly every 15 minutes."
4. Each note includes the time and date at which Mrs Ziyambi recorded the note.

Patient B

1. Patient B was an 89-year-old woman. She was prescribed regular and PRN (as needed) medications from 7 January 2023 following surgery for a hip fracture: endone twice daily (5mgs) - for increased pain; paracetamol (1g) (three times daily) - for increased pain; and coloxyl and senna (2 x tablets) (twice daily) - for constipation.
2. Regular medication for pain commenced on 25 January 2023 and Patient B was prescribed a Norspan patch (weekly). However, Patient B did not receive this slow release medication until the 27 January 2023 at approximately 8pm due to availability of the medication.
3. The medication chart shows that she was administered PRN coloxyl and senna on 27 January 2023. It also shows that endone was administered most days between 18 January and 27 January 2023 generally first thing in the morning (7am) and then in the afternoon or evening. There is no record that Patient B ever received endone during the night.
4. PRN was administered between 28 January 2023 to 31 January 2023. There are no clinical notes for 30 and 31 January 2023 or 1 February 2023.
5. Endone was administered at 7am on 1 February and again at 7am on 2 February 2023. A doctor assessed her at 9.06pm on 2 February 2023 and she was then transferred to hospital at 10.15pm.
6. She returned to Genista after which endone continued to be administered once daily from 3 February 2023 to 6 February 2023 (twice on 6 February 2023). Patient B died shortly afterwards.

Genista records

1. A document headed "Comment & Complaint Register" was included as part of Ms Stillone's evidence. On 4 January 2023 it records that Patient A voiced concern that her pain management was not always attended to during the night as she is aware that Mrs Ziyambi sleeps outside the sister's station and the AINs tell her that they will let her know when Mrs Ziyambi wakes up to give her medication. Ms Stillone records in her statement this event as Patient A having a conversation with her saying "Anna, when are you fixing this up, that Ratidzo sleeps all night. The other RNs give me my pain medications when I want them, but when Ratidzo is on, the staff are not allowed to wake her up, so I never get my medications on time."
2. Ms Stillone also stated that shortly after this she received a complaint from a resident's son when she was at the reception desk, who complained that the staff were sleeping at night because he visits his father from late evening to early morning. There was no record of this complaint on the complaint register nor did any other witness give this evidence.
3. In addition to records for Patient A and B, there are numerous staff rosters and timesheets in evidence. The Tribunal notes that the Commission provided Genista spreadsheets titled "Night Duty Shift (including the leave taken)" for the period 1 November 2022 to 1 February 2023 and which contained the dates on which staff were rostered to work certain shifts and the hours allocated for those shifts. It also included a column which indicated whether the particular staff member rostered on had taken leave for that shift. Other rosters tendered during the course of the hearing, specifically for the periods 14 January 2022 to 23 January 2022, 28 January 2022 to 2 February 2022, and 24 July 2022 to 4 August 2022 did not include that same column such that it would be impossible to determine by reference to the roster alone, whether in fact Mrs Ziyambi worked during those periods.

Written complaints about Mrs Ziyambi

1. On 25 January 2023, a letter was provided to Genista management. There are four signatures on the letter but they are illegible and the first two look almost identical to us. The letter states: "Fellow nurses have report to RN and AM RN have observed night RN Ratidzo to be asleep on multiple occasions whilst working on the floor. When AM RN comes in for the shift, noted she can be found sitting on the nurses desk with her feet up on the chair and asleep. RN had to physically wake her to get her attention. Also, noted on some occasions when staff call in sick on her night shift, she 'forgets' to replace them and states non one has called in sick last night. AM RN's have to attempt to call staff or agency to replace with nil success as it was too late to call someone in."
2. On 27 January 2023, the care manager at Genista, Ms Alana Bhurtel, signed a "Non-Compliance Incident Form" which records that after a patient had fallen (on the day prior), Mrs Ziyambi had prepared an incident report for the wrong "consumer"; had not implemented the correct manual handling practice for the patient post fall; and that CCTV footage recorded Mrs Ziyambi's failure to take vital signs despite her reporting that she had done so.

Second unannounced visit

1. At about 2am on 2 February 2023, Ms Pajic and Ms Stillone attended unannounced for a site visit at Genista and say that they found Mrs Ziyambi asleep, two other staff asleep and Patient B "screaming out in pain" as she had not been administered pain relief. What happened at the visit is the subject of contradictory evidence which we will address further below.
2. Mrs Ziyambi's employment was terminated on the same day. In the termination letter, the "findings" of Genista following their unannounced onsite audit visit are recorded as follows: - "CCTV Surveillance failed to locate you attending rounds when viewed on random dates by CEO - A Stillone and Facility Manager - P Pajic on the following dates: 01.02.23 29.01.23 25.01.23 22.01.23 - You were found asleep in Jacaranda on the lounge (Quiet Room), covered with property of Genista: sheets and blankets, and witnessed be fast asleep. - Care Staff under your supervision x 2, were also witnessed to be asleep in Camellia wing on lounge chairs, which had been colluded together with blankets to create a bed with blankets. - Consequently, Camellia had no Personal Care Assistants in attendance. Persona Care Assistant (allocated as 'floater') and Camellia allocated Personal Care Assistant both asleep. - An onsite audit was also conducted in the Lavender wing, where a Personal Care Assistant was observed to be seated at the Registered Nurse station. At this time, a resident was heard to be verbalising pain - the bedroom door was closed. Upon CEO and FM entering the room, the resident was observed to be clearly distressed and screaming in pain (recent hip replacement surgery). Consequently, this constitutes a SIRS Priority 2 incident and has been reported as per Genistas Aged Care Incident Management Policy."
3. Within a few days of the termination of her employment, Mrs Ziyambi contacted union representatives to assist her to lodge an unfair dismissal complaint with Fair Work Commission of NSW ("Fair Work"), which was subsequently lodged.
4. On 6 February 2023, AIN B provided a letter in support of Mrs Ziyambi as did Ms Virk on 4 March 2023. The former manager of Genista, Ms Zena Begg, also provided a letter in support of Mrs Ziyambi attesting to her being hardworking, a valuable team member "who is exceptionally responsive to her duties and caring to the residents".
5. On 17 February 2023, Genista first lodged a complaint to the Australian Health Practitioner Regulation Authority ("AHPRA") confined to Mrs Ziyambi sleeping during her night shift commencing on 1 February 2023. Ms Pajic conceded in cross-examination that she made the complaint only because "I needed some sort of evidence that [Mrs Ziyambi's dismissal] was not unfair." Ms Pajic also accepted that if it was not for the unfair dismissal claim, she would not have made the complaint to AHPRA about Mrs Ziyambi.
6. Ms Pajic obtained emails from Mrs Pakileata and Ms Walker in support of the complaint. We note Ms Walker was not on duty on the 1 February 2023 nightshift.
7. Mrs Pakileata's email dated 17 February 2023 states: "I would like to write this statement as close as I remembered on the 2nd February after 12AM the RN in charge came in to Jacaranda and went to the quite room next to the Nurse Station for a break. The Manager and the Owner came in after 2AM and wake her up from sleeping."
8. Mrs Walker's email of 17 February 2023 states: "Ratido Ziyambi is the RN on night duties at Genista age care Greystains. On all shifts Ratidzo would make a make shift bed set her alarm on her phone for 5 am. Sleep all night, never checking on residents, when asked to attend it would take up to an hour for her to attend even if a resident had a fall, many times you would need her help and she was asleep leaving AIN to struggle with residents with behavioral problems or wandering problems, …I have complained to management many times as this puts the nursing home and residents in danger…?
9. Following an investigation and hearing under National Law s 150, conditions were imposed on Mrs Ziyambi's registration. Two of the 11 conditions include that Mrs Ziyambi is not to work any night duty (between 10pm to 6am) and that she is not to be the nurse in charge of any shift, ward or unit. There was no dispute that Mrs Ziyambi has complied with all of the conditions since they were imposed.

Complaint 1, Particular 1

1. Complaint One alleges that Mrs Ziyambi slept on duty at the Facility during night shifts by reference to the dates particularised.

Particular 1(a), 18 January 2022

1. Ms L'olive was an AIN working under the supervision of Mrs Ziyambi. She took a photograph during the night shift commencing 18 January 2022.
2. Ms L'olive gave evidence about the circumstances in which this photograph was taken. In her written statement she said that during her shift on 18 January 2022, Mrs Ziyambi went to sleep at around 11 pm and that every time she was on nightshift with Mrs Ziyambi she noted "that she would sleep during the shift". She said she was stationed on a different floor to Mrs Ziyambi so she could not leave to go wake her up but that whenever she needed Mrs Ziyambi, she would call her mobile but she would not answer. In cross-examination she clarified that she meant facility phone not mobile phone and that she did not call Mrs Ziyambi's mobile phone.
3. In cross-examination Ms L'olive also said that she hardly ever worked with Mrs Ziyambi - it was very rare. When confronted with her statement that every time she was on nightshift Mrs Ziyambi slept, Ms L'olive she said: "A. I never say I see her. They already ask me did I see by my eye, I say, 'No'. They ask me why, because I can't leave the floor to go look for her. Q. You never saw her sleeping on the shift? A. I never see by my eye."
4. Ms L'olive later indicated that she also assumed Mrs Ziyambi was sleeping because she did not answer the facility phone when she called. She said she became frustrated that she could not reach Mrs Ziyambi by phone, so she went with Ms Walker down to the front office (not the Camellia wing). In cross-examination was the first time that Ms L'olive mentioned that Ms Walker was the other staff member that accompanied her.
5. Ms L'olive saw what is depicted in the photograph: two armchairs placed together, a white pillow and blanket or sheet and a black shape on a small section of the chairs. She assumed that it was Mrs Ziyambi on the chairs because she said she had seen everyone else during that shift. Ms L'olive said she knocked on the glass door but Mrs Ziyambi did not move. She said she could not go wake her up because she would have to change out of the personal protective equipment she was wearing to do that. Instead she took the photograph from behind the glass doors. The photograph is date and time stamped 3.10am on 19 January 2022.
6. In her written statement, Ms L'olive stated that she then gave this photograph to Ms Pajic. Curiously, Ms Pajic does not record in any of her three statements that Ms L'olive sent her this photograph and in cross-examination Ms Pajic said that the staff told her they had a photograph but that no photograph was given to her until after the second unannounced visit on 2 February 2023.
7. The Commission submitted that the "photograph appears to depict a person lying on top of a blanket which is draped on top of an armchair [and that this is consistent with] how Ms Walker described the Respondent would sleep, namely that she would push two lounge chairs in the doorway of Room 14 of Camellia Wing out of view of the cameras and use facility blankets and sheets to make a faux bed." The Commission contended that the evidence of Ms L'Olive in respect of Mrs Ziyambi sleeping was compelling as "she did not resile from the fact that she saw the Respondent sleeping, she had no animus towards the Respondent nor was any reason put as to why she would lie about this matter."
8. When the photograph was first provided as an annexure to Ms L'olive's first statement, it did not have a date on it. In a letter from Mrs Ziyambi's solicitors to the Commission after receiving this photograph, it was stated that it was assumed the undated photograph provided to Genista "was taken on around 31 July 2022" during a period Mrs Ziyambi had COVID-19. The letter further states that "when this photo was taken, [the Respondent] set [sic] herself at the front entrance, isolating herself from residents and other staff for safety of others". Mrs Ziyambi confirmed in cross-examination, that there was an occasion where she came to work and became very unwell during her shift. She had performed a COVID rapid antigen test when she arrived at work but it was negative. A few hours into her shift she became more unwell and so she situated herself at the front entrance, isolating herself from the residents and other staff for safety. She later tested positive for COVID-19 and produced a photograph of a positive rapid antigen test together with a medical certificate from 31 July 2022 which she sent via text messages to Ms Prince at that time. Mrs Ziyambi stated that if Ms L'olive's photograph was of her then it would have been taken when she was isolating herself because she was unwell and it would have been when she was on a break. Mrs Ziyambi was not sure of a particular date but her concession suggests that it was possible she would have been laying down in that position on the chairs.
9. At some point later, with the assistance of the Commission, Ms L'olive was able to obtain the properties for the photograph from her mobile phone and it was resubmitted in a subsequent statement. As it transpired from the evidence the photograph was taken on 19 January 2022 at 3.10am.
10. The Tribunal notes from a NSW Health notification sent via text message, that Mrs Ziyambi also had COVID on 13 January 2022. This was just five days prior to the shift commencing on 18 January 2022 during which Ms L'olive claims Mrs Ziyambi was sleeping.
11. Mrs Ziyambi candidly gave evidence that when she would have the break she was entitled to during her shifts, on occasion she would rest (not sleep) but on other occasions she did not even get her break. It is not in dispute that as an RN, Mrs Ziyambi was entitled to a break during her night shift as conceded by Mrs Pajic in cross-examination, and no evidence was before us that RNs are prohibited from resting or even sleeping during their breaks.
12. While it is likely, on Mrs Ziyambi's own evidence, that she did lie down to rest and isolated herself from the patients on an occasion, we are not satisfied on the evidence before us that it was during the shift commencing 18 January 2022.
13. We did not find Ms L'olive's evidence compelling or reliable. Rather, it was inconsistent and she appeared to us to want to give evidence to support a theory or narrative. First, in her statement she said that she "observed" Mrs Ziyabmi sleep every time they were on nightshift together. She also said on the nightshift of 18 January 2022, Mrs Ziyambi went to sleep at 11pm. However, in cross-examination Ms L'olive said her and Mrs Ziyambi worked on different floors and that she had never seen Mrs Ziyambi sleeping. She did not explain what if anything Ms Walker said to her or whether Ms Walker directed her to the front entrance, or whether Ms Walker said to her that it was Mrs Ziyambi behind the glass doors. Given our assessment of Ms Walker's evidence (referred to below), the animosity between Ms Walker and Mrs Ziyambi and the complete absence of evidence by Ms Walker about this incident makes it difficult to accept the cogency of the assumptions made by Ms L'olive.
14. Further, we are not satisfied that the photograph Ms L'olive took is in fact a photograph of Mrs Ziyambi sleeping. It is impossible to determine from the photograph itself whether the shape which appears on part of the chairs is a person, a bag, or something else.
15. Also contrary to her written statement, Ms L'olive conceded in cross- examination that she never gave the photograph to anyone until she gave it Ms Pajic in preparing her statement - much later than 19 January 2022.
16. Overall, we found Ms L'olive's evidence unreliable. We are not prepared to "infer from the sum of these circumstances" (as the Commission submitted) on the evidence before us that this was a photograph of Mrs Ziyambi sleeping or that she slept whilst on duty on the nightshift commencing 18 January 2022.
17. Further support for our view is the contemporaneous progress notes made by Mrs Ziyambi during the night shift on 18 January 2022 which records that Patient A was "buzzing frequently during the night, awake all night and opened her bowels 3 times". It rather suggests that Mrs Ziyambi was awake and checking on Patient A to know what to include in the progress notes and it was never suggested otherwise to Mrs Ziyambi. We are unable to accept Ms Pajic's bald allegation that Mrs Ziyambi somehow amended all of the progress notes in 2022 at a time after she had been accused of sleeping during her shifts in January 2023. There is no proper basis for this allegation and we reject it.
18. On balance, we are unable to be satisfied on the evidence that Mrs Ziyambi slept on the shift commencing 18 January 2022.

Particular 1(b), 1 February 2022

1. The basis for the second particularised date on which it is alleged Mrs Ziyambi slept at work is a statement of Ms Dominguez.
2. Ms Dominguez was employed as a RN at Genista and was the RN on the morning shift. In her written statement she noted that she could not always find Mrs Ziyambi when she started her day shift and that on the morning of 2 February 2022 when she came in for her shift, she observed Mrs Ziyambi to be asleep at the nurse's station and that she had to "wake her up that morning". Mrs Ziyambi denies she was sleeping.
3. She stated that she made a verbal complaint to Ms Pajic in mid-2021 about Mrs Ziyambi not completing tasks during the nightshift. Ms Pajic did not make any reference to this "verbal complaint" alleged to have been made in mid-2021 by Ms Dominguez, nor was there evidence of Ms Dominguez complaining until signing a group letter in January 2023.
4. In her written statement, Ms Dominguez also states that when asked by some staff in January 2023 to put in a complaint about Mrs Ziyambi - in particular, failing to undertake the required duties because she slept at night, she was happy to do so because she had "had enough".
5. Ms Dominguez failed to attend the Tribunal for cross-examination. The Commission did not summons her to attend. We were informed on the first day of the hearing that she would attend the next day - that it was difficult as the staff work in the same facility. As it transpired, the evidence of Mrs Rogers about her attempts to have Ms Dominguez attend the hearing demonstrate unresponsiveness and, it is open to infer, reluctance on Ms Dominguez's part to be cross-examined. In the context of the dispute, we give the evidence very little weight particularly as it was unable to be tested in cross-examination.
6. The Commission contends that the evidence of Ms Dominguez is supported by objective evidence and/or other circumstantial evidence and for that reason can be accepted by the Tribunal including that: "(a) the complaint is 'temporally proximate to Ms L'Olive's complaint from 19 January 2022; (b) the night shift roster shows that Mrs Ziyambi worked the night shift commencing 1 February 2022 and concluding on 2 February 2022.; (c) her evidence aligns with that Ms Prince, who as the administration officer, noted that during Mrs Ziyambi's night shifts, staff who called in absent for the day shift were not being replaced which caused strain on her to find staff in the morning; (d) it is consistent with other evidence that Mrs Ziyambi slept."
7. We reject this submission. First, we do not accept that Ms L'olive saw Mrs Ziyambi sleeping during the shift on 18 January 2022 (being temporally proximate to 1 February 2022). Second, we are unable to understand why Ms Dominguez would not have made a complaint at the time if this had occurred and her failure to attend the hearing prevents us from inquiring further. The written statement from Ms Dominguez appeared to us to be manufactured to align with the narrative already provided to Genista on 25 January 2023 by Ms Walker and which referred to an RN on morning duty who had to wake Mrs Ziyambi.
8. We also note that Ms Walker was rostered on to work that same shift with Mrs Ziyambi on 1 February 2022 (as well as 30 and 31 January 2022) but has not given any evidence about the shift on 1 February 2022.
9. Further, even though Ms Prince gave evidence that Mrs Ziyambi sometimes did not obtain replacement staff for those that had called in sick, this does not mean that on those occasions it was for the reason that Mrs Ziyambi was sleeping (as alleged and particularised by the Commission). We are not prepared to make this inference in the absence of evidence to support such an inference.
10. Overall, we are unable to be satisfied on the evidence that Mrs Ziyambi slept on her shift commencing 1 February 2022.

Particular 1(c)-(j), 6 November 2022, 11 November 2022, 13 November 2022, 25 November 2022, 27 November 2022, 4 December 2022, 12 December 2022, 1 January 2023

1. Each of the occasions listed in this particular are based on Ms Walker's evidence that Mrs Ziyambi slept on every shift they worked together.
2. The Commission contended that Ms Walker's complaint was not precipitated by a dispute between her and Ms Sundar and/or Mrs Ziyambi but rather, it was a combination of circumstances which simply could not be ignored by management that evidently led to the investigation of Mrs Ziyambi. It was contended that Ms Walker had made complaints to management about Mrs Ziyambi sleeping as early as December 2021 when she was interviewed about allegation about Ms Sundar. However, as noted above, that complaint was directed to Ms Sundar not Mrs Ziyambi: Ms Walker conceded as much in cross-examination. At that time, she was purportedly advised by management that they needed a formal complaint by her although the interview notes with Ms Walker on 1 December 2021 do not record that: it merely states "In future all incidents are to be reported to management for prompt actioning. Feedback can also be returned anonymously."
3. As the Commission contended, it appears that from December 2021 if complaints had been raised management either ignored them or turned a blind eye to them.
4. Mrs Pajic alleges that on 24 November 2022 during a staff meeting staff were advised it was not the forum to raise the issue of Mrs Ziyambi sleeping and were told to put their concerns in writing which apparently no one did until late January. Ms Pajic relied on the handwritten notes which she attached to her statement. The only entries are on 6 December 2021, 8 December 2021 and then immediately after that entry, without any gap on the page, is one for 2 February 2023. They appear to be each signed by Ms Pajic except for the first which is signed by Ms Prince. As noted above, curiously, attached to Ms Stillone's statement is a similar handwritten set of notes but with an entry placed between 8 December 2021 and 2 February 2023 for 24 November 2022: it was as though this page had been recreated to include 24 November or that the other version had been recreated to take out the 24 November entry. There was no explanation in the evidence for the differences and it is difficult to have confidence in the contemporaneity of the events that these notes are said to record in the circumstances.
5. When Ms Walker originally made a complaint to Genista in 2021 it was in the context of her dispute with Ms Sundar and she complained that RNs (generally) were sleeping. As noted above, there was a history of disharmony between Ms Walker and Ms Sundar and it was apparent from the evidence that there were "factions" in the workplace. Ms Walker's complaint was recorded in an interview she had in November 2021.
6. Ms Pajic gave evidence that complaints were made verbally to her in 2022 but she told staff to put them in writing so they could be actioned. According to Ms Pajic, they did not do so until January 2023 (this is despite the alleged complaint by Ms Walker in 2021).
7. Ultimately the Night-Duty rosters were provided to Ms Walker which we attached to her statement to confirm that on each of the particular shifts in those rosters, she saw Mrs Ziyambi sleep.
8. Mrs Ziyambi denies the allegations and says that they are false, misleading, malicious and "not made in good faith". She also says they are a "retaliation towards [her] given their strenuous relationship" where Mrs Ziyambi had previously made a complaint about Ms Walker. Further, Mrs Ziyambi points to the absence of action by management despite Ms Walker's assertion that she had been sleeping, as consistent with Ms Walker making a false complaint.

Ms Walker's evidence

1. We found Ms Walker to be an unsatisfactory witness. While Ms Walker was forceful in her evidence, like Ms L'olive, she appeared to us to be at pains to present a particular entrenched narrative. She did not appear to us to be the type of person who would be backward in coming forward with a complaint if there was one to made.
2. In cross-examination, it was put to Ms Walker that she did not originally refer to specific dates at which she saw Mrs Ziyambi sleeping. However, Ms Walker stated in her statement that it was every shift and maintained that in cross-examination. In cross-examination Ms Walker said further: "unless I got dementia I know what I saw."
3. We were unable to have confidence in her evidence because it was internally inconsistent in part but also inconsistent with documentary records before us. First, in her statement she said that in her interview with management in December 2021, she told management that Mrs Ziyambi slept on every shift between 11pm and 5am (setting her alarm for 5am) and went to the doorway in the Camellia Wing "out of view of the cameras" (that being a reference to the CCTV cameras) to sleep pushing two armchairs together to make a faux bed. However, we note that in December 2021 no cameras were yet installed. The evidence was that the CCTV cameras were installed in May 2022 to catch Mrs Ziyambi after alleged and undocumented complaints about Mrs Ziyambi sleeping.
4. Further, Ms Walker stated that in January 2023 things got so bad that she started calling in sick for her Sunday shifts. She said this was after she had been on a night shift with Ms Ziyambi where she was caring for a new resident. She stated: "I had continuously sought Ms Ziyambi's and the other care staff's assistance with a new resident who had a problem with wandering. Both Ms Ziyambi and the other PCAs, specifically [AIN B], refused to assist me in stopping the new resident from wandering. The new resident ended up smashing a trolley into the front doors and getting into the laundry where there was a key to exit the Facility. It was at this point that I realised I no longer wanted to work when Ms Ziyambi was the RN in charge."
5. Ms Walker said that in January 2023, Ms Pajic called her to determine why she was calling in sick every Sunday for her shift and that the reason she gave Ms Pajic was that she "could no longer work shifts where Ms Ziyambi was the rostered RN in charge". She purportedly asked Ms Pajic at this time to remove her from the roster on Sundays and that she did not work with Ms Ziyambi again after this conversation.
6. In her written statement, Ms Pajic said that in mid-January 2023 (having corrected her statement from mid-January 2022) she noticed Ms Walker was calling in sick continuously on Sundays so she contacted her. Ms Walker "indicated that she no longer wanted to work on Sundays as she felt she could no longer handle working with Ms Ziyambi". Ms Pajic said in cross-examination that Ms Walker was so distressed that she took unpaid leave.
7. However, the Night Shift Roster painted a very different picture. The Night Shift Roster shows that there was only one night in January when Mrs Ziyambi and Ms Walker actually worked together and that was Sunday 1 January 2023.
8. In the couple of months prior, Ms Walker and Ms Ziyambi had worked together on several occasions: Sunday 6 November, Friday 11 November, Sunday 13 November, Friday 25 November, Sunday 27 November, Sunday 4 December and Monday 12 December 2022. Their last shift together was 1 January 2023 and then they were rostered to work again together on Saturday, 21 January and Sunday 22 January 2023.
9. On Friday, 20 January 2023 the Night Duty Roster records that Ms Walker took personal carer's leave. This was not a shift she was rostered on with Ms Ziyambi. On Saturday 21 and 22 January 2023, Ms Walker took leave without pay. The Night Duty Roster did not record Ms Walker being sick "continuously" on Sundays or on any Sunday yet it otherwise recorded when staff were sick for their shift.
10. Ms Walker also said in cross-examination that at 11pm each shift, she would see Mrs Ziyambi set her alarm for 5am. Although not suggested in cross-examination, given the evidence of Ms Pajic that the RN was required to complete two rounds: one after the commencement to the shift (sometime from 10pm) and another prior to the end of the shift (to finish before 6.30am), it would not be surprising if a nurse set an alarm at 5am for that task to be undertaken.
11. Further, despite Ms Walker never resiling from the allegation that Mrs Ziyambi slept from 11pm to 5am on every shift, progress notes for Patient A show at least on one occasion, Mrs Ziyambi administered PRN to Patient A at midnight on the 13 November nightshift (as recorded at 6.15am on 14 November 2022). This is consistent with other progress notes for Patient A where Mrs Ziyambi recorded administering pain medication during the period after 11pm and before 5am. These are occasions Ms Walker was not working the same shift, such as at 12.08am on 11 December 2022, midnight on 18 December 2022, 3am on 29 December 2022, midnight on 9 March 2022, 3am on 8 March 2022, 4am on 1 March 2022, midnight on 15 February 2022. We further note that staff reports annexed to Ms Pajic's statement show that they were communicating with Mrs Ziyambi ("RN informed, continue monitoring" or "RN notified") during the nightshift on the progress of Patient A which is inconsistent with the allegation that she sleeps from 11pm to 5am. We are unable to reconcile Mrs Ziyambi's administration of PRN and her interaction with staff on shifts Ms Walker was not working, with the allegations of sleeping on shifts that Ms Walker works. We also note that during the investigation another AIN with whom Mrs Ziyambi works, Mr Hamza Ahmed, gave a reference in which he said she never slept when they worked together.
12. It is implausible that had Mrs Ziyambi been sleeping for the periods Ms Walker claims on every shift, that Ms Walker would not have protested or taken steps to make sure her complaint was actioned at Genista, particularly if she had specifically been requested to do so in the past. We do not accept that she was too afraid to complain given Ms Sundar had already ceased her employment by this time.
13. The Commission submitted: "… there were several circumstances in early 2023 that management could not merely overlook, and these appear to have precipitated their inspection of the premises on the night of 1 February 2023. Those circumstances are as follows: (1) Firstly, On 4 January 2023, [Patient A] made a complaint to Ms Stillone about not receiving her medication in a timely manner because the Respondent was sleeping. On 6 January 2023, Ms Pajic wrote to [Patient A] indicating that an investigation would be launched in relation to the matter; (2)Secondly, prior to 21 January 2023 Ms Walker reported to Ms Pajic's that Respondent was sleeping on shift and she no longer wished to work with the Respondent for that reason; (3)Thirdly, following Ms Walker's verbal complaint Ms Pajic reviewed CCTV footage and noted that the Respondent had also slept on 22 January, 25 January and 29 January 2023 and noted that she would sleep after completing her initial round waking up after completing the final round; (4)Fourthly, on 25 January 2023, management received a formal written complaint by morning staff about the Respondent sleeping; (5) Fifthly, on 27 January 2023, the Respondent made a self-report about non-compliance with management incident policy regarding falls where a patient in the facility had fallen. On that day the Respondent had failed to follow up post incident with incorrect practice and did not take vital signs taken from the patient who had the fall."
14. As to these points we make the following observations in light of the evidence before us.
15. First, in her written statement, Ms Stillone stated that on 4 January 2023, Patient A, who was bedridden, said to her that Mrs Ziyambi was sleeping all night outside the nurses station and "the AINs state they will let her know when she wakes up to give her medication". We know from the evidence that Patient A was bedridden and constantly buzzing for attention and wanting PRN. The fact of whether or not Mrs Ziyambi was sleeping could only have been communicated to her by the AINs because she could not get up herself or go to the nurses station herself. In any event, on the evidence before us, at this stage, no steps were taken at this time to investigate Mrs Ziyambi. This was despite that fact that Ms Pajic and Ms Stillone say in their statements that on 24 November 2022 staff complained at a meeting that Mrs Ziyambi was sleeping. It is unfathomable that if Ms Pajic and Ms Stillone considered these complaints genuine at the time, they would not have taken urgent steps before 5 January 2023 to investigate the complaints.
16. Ms Pajic said that after Ms Walker told her she did not want to work with Mrs Ziyambi anymore, she asked Ms Walker and the "other staff member" where Mrs Ziyambi slept and they told her she either slept outside Room 14 in Camellia Wing or along the wall opposite the sisters station in the Camellia wing or the Jacaranda Wing quiet or dining room. No other witnesses confirmed they spoke to Ms Pajic or told her this.
17. Ms Pajic stated that she reviewed CCTV footage on 22, 25, 29 January and 1 February 2023 in those areas which "confirmed that Ms Ziyambi would often go to sleep after completing an initial round and wake up before completing a final round before handing over to morning staff". She did not explain precisely what she saw to reach that conclusion or (other than on 1 February 2023) the date she actually viewed the CCTV footage. Ms Pajic stated that she did not have a copy of any of the CCTV footage from the relevant time because it had been written over. However, inconsistently, in her cross-examination she said on a few occasions she had taken some screen shots of the CCTV footage and provided them to Ms Tilly (for the Commission) but they might not have dates on them. There were no screenshots in the evidence. Further, despite Ms Pajic saying she kept records in the form of diary notes - when she was asked during the hearing to produce those records, ultimately the Tribunal was informed that she could not find any.
18. If Ms Pajic at that time (on 22 or 25 or even 29 January 2023) observed Mrs Ziyambi sleeping, it is unfathomable to the Tribunal that as the Facility Manager she and the CEO, Ms Stillone would have waited until 1 February 2023 to undertake an unannounced visit to Genista, especially if, as Ms Stillone stated the purpose of the installation of the CCTV in 2022 was to catch Mrs Ziyambi out. We agree with Mrs Ziyambi's contention that "one would expect that the evidence pertaining to serious allegations … would be saved and stored and acted upon immediately for the protection of patients." It was not.
19. Further, the absence of any evidence from Ms Walker about the photograph taken during the shift on 19 January 2022 is curious and inexplicable in the circumstances where Ms L'olive has disclosed for the first time in cross-examination that Ms Walker was the AIN that went with her to take this photograph.
20. These were all circumstances that we could not ignore in considering the evidence as a whole.
21. Overall, on the evidence before us, we are unable to be satisfied that the Commission has established that Mrs Ziyambi slept during her shift on any of the occasions contained in particulars (c ) to (j) of Complaint 1.

Complaint 1, Particular 1(k), 1 February 2023

1. This complaint is supported by the evidence of three persons, Ms Pajic, Ms Stillone and Ms Pakileata who effectively say that Mrs Ziyambi was sleeping during her nightshift commencing 1 February 2023.
2. We will set out the evidence each gave but we also refer to notes made directly after the event in question - long before these proceedings were on foot.

Ms Stillone

1. As noted above, Ms Stillone did not give evidence at the hearing.
2. The Commission submitted this was for the reason that as she was too unwell to attend. A medical certificate for the first day of the hearing was produced which simply said that Ms Stillone had multiple (unspecified) medical conditions and "did not feel well enough to attend court on 22/4/2024." We were informed that Ms Stillone had lung cancer although the medical certificate did not confirm her diagnosis or the gravity of her sickness.
3. While the medical evidence was generally inadequate, there was capacity for Ms Stillone to appear on the second day of the hearing and so we granted leave for Ms Stillone to give evidence on the second day via AVL. However on the second day she also did not appear and there was no medical evidence in support of her non-appearance.
4. The Commissioner tendered a file note of a conversation between Ms Rogers and Ms Stillone as evidence. At 1.36pm on the first day of the hearing, Ms Rogers telephoned Ms Stillone who told Ms Rogers that was not well enough to attend. She is recorded as saying: I just can't get out of bed … I am short of breath … I won't be better tomorrow … I just can't come." When Ms Rogers told her she could give her evidence via AVL, Ms Rogers said "No, I just can't do it … I can't speak properly … I am also getting very emotional thinking about it ... That patient died a few days later and that really affected me."
5. Email correspondence on 23 April 2024 between Ms Rogers with Ms Stillone was also tendered by the Commission. It records that Ms Rogers asked whether Ms Stillone would perhaps be "up to giving evidence via video link (like zoom) to which Ms Stillone responded "Sorry Maryanne I'm not able to."
6. In any event, the Commission accepted that Ms Stillone's evidence should be accorded lesser weight because she was not available for cross-examination and submitted that the Tribunal may accept her evidence only in so far it is supported or corroborated by evidence of other witnesses.
7. We had concerns that Ms Stillone would not and did not attend the hearing, even by telephone on the second day, in the circumstances where she has made serious allegations against Mrs Ziyambi. She was a primary source of some of the evidence that her and Ms Pajic (as conceded by Ms Pajic in cross-examination) prepared and worked on together, over numerous telephone calls, following notification that a complaint had been lodged by Mrs Ziyambi in the Fair Work Commission for unfair dismissal.
8. The Commission contends that Ms Stillone's statements are consistent with the evidence of Ms Pajic. However, while that may be for the reason that they recalled the same things from the night in question, it might also be for the reason that they collaborated to prepare their narratives of the events in question. In light of Ms Pajic's evidence that they worked together to record the events, we cannot conclude that they independently corroborate one another's versions of events.
9. We have given her evidence very little weight overall but the inability to test it has resulted in unanswered questions and gaps in the evidence.

Evidence of Ms Pajic

1. Ms Pajic and Ms Stillone did an unannounced visit at Genista at about 2.05am on 2 February 2023.
2. In her first statement, Ms Pajic stated: "Upon arrival, Ms Stillone and myself entered the Jacaranda Wing and saw PCA, Ms Loiloi Pakileata sitting at the nurses station. Ms Stillone said to Ms Pakileata … 'where is Ratidzo tonight'… Ms Pakileata pointed to the Quiet Room … Myself and Ms Stillone entered the Quiet Room and observed Ms Ziyambi to be asleep on the sofa covered in the Facility's blankets and pillows with her shoes removed. Ms Stillone switched the lights on which awoke Ms Ziyambi."
3. Ms Pajic records that Ms Stillone said "What is going on here, why are you asleep?" and Mrs Ziyambi responded "I am on my break." She also states that when she asked Mrs Pakaleata how long Mrs Ziyambi had been asleep, Mrs Pakaleata responded "For about two hours".
4. Ms Pajic did not mention in her statement whether the lights were switched off and they turned them on but it became the subject of extensive cross-examination. This in part was because Ms Stillone's statement recorded that she had switched the lights on which woke Mrs Ziyambi. However, Mrs Ziyambi strongly denied this occurred - that she had been asleep or that the lights were switched off. It was suggested to Ms Pajic in cross-examination that the lights were on when they arrived and she stated "no we turned them on". Further it was suggested to her that Mrs Ziyambi was not sleeping to which she responded "she was in a deep sleep, Anna had to go wake her up". Further, it was suggested to Ms Pajic that Mrs Ziyambi was on her break, and Ms Pajic said "No, she was in there for a significant period of time … she was sleeping with intent, pillow, blanket, shoes removed".
5. Ms Pajic stated that a review of the CCTV confirmed that Mrs Ziyambi had been asleep for two hours. Her statement did not explain this further and so it was the subject of cross-examination.
6. Ms Pajic said that Ms Stillone had called her at about 9.30pm to 10pm to tell her they would be doing the unannounced visit that night. Ms Pajic said she then started logging on and off the CCTV from her phone and saw Mrs Ziyambi enter the Quiet Room at about 11pm. She stated: "then, when I got into my car, I checked again and because there's sensor lighting in the rooms, you could see that the sensor light was still off, which meant that she was probably still in there, because if someone had come out, the sensor lights would've turn on… when I was driving to the facility, I had my phone on the bracket in the car and I had the cameras on. I was monitoring that area and she did not come out of that room. Q. Again, you're saying that you were monitoring her for two hours A. On and off on my mobile. Q. So you're not 100% sure, are you, whether she walked out? A. Well you would've seen if she had walked out because the sensor lights would have remained on for some period of time and when I was - it takes me about 45 to 50 minutes to get to Genista from my home. So I know for at least 45-50 minutes, she was still in that room and didn't come out. Q. You're saying the two hours that you say that she was - you assume she was sleeping - was when you were monitoring her on and off in the two hours prior to arriving at the facility? A. Yes, because I saw her go in and then when I left home about 45 minutes prior to the visit there was no movement out of that room or in that room."
7. We note that the time at which Ms Pajic said she observed on the CCTV Mrs Ziyambi enter the Quiet Room was 11pm and then she did not look at the CCTV again until she left home, 45 minutes prior to her visit. That would have been at about 1.15am.
8. Ms Pajic said that she made a note of what occurred. This is the handwritten note we have referred to at [43] above (which she confirmed in cross-examination were the only handwritten notes held by Genista except an anonymous complaint which would have been attached to Mrs Ziyambi's file with these notes). She said she prepared the 2 February note after she sent a termination letter to Mrs Ziyambi. In the handwritten note it says: "CEO and FM attended onsite audit @ 2:00am. Ratidzo found to be asleep in Jacaranda Quiet Room on lounge seat, with Genista pillows and blankets. Had to awake by CEO, where by lights had to be switched on, to awake RN. RN queried by CEO as to why she was asleep. RN stated that she attended rounds moments ago and just went into the quiet room to rest/have a break. RN had been observed on surveillance to be entering the lounge room 2 hours earlier and as not observed to come out…"
9. Ms Pajic said that after she received the Fair Work Commission complaint, she and Ms Stillone together prepared a transcript of events concerning Mrs Ziyambi and that she used notes she had taken in her diary to do so. She then provided the transcript to the Commission's lawyer for the purpose of preparing statements in April 2023. As noted above, Mrs Ziyambi's counsel called for the production of the diary records and original transcript during the course of the hearing but they were not produced.
10. Ms Pajic was forthright in her answers in cross-examination and gave further details - much more than in her statements - of events in question. She never resiled from the allegation that she saw Mrs Ziyambi asleep.
11. As noted earlier, Ms Pajic said she would never have lodged a complaint against Mrs Ziyambi if not for the fact that Mrs Ziyambi had made a claim for unfair dismissal. If the allegations made by Ms Pajic were true, we find this statement incongruous and extremely troubling.

Evidence of Mrs Pakaleata

1. Shortly after Ms Pajic received the Fair Work Commission complaint, she requested that Mrs Pakaleata provide an email confirming what had occurred that night.
2. Mrs Pakileata sent an email which stated: "…after 12am the RN in charge came in to Jacaranda and went to the quiet room next to the Nurse Station for a break. The Manager and Owner came in after 2AM and wake her up from sleeping."
3. By the time Mrs Pakileata provided a statement for these proceedings, her recount of events had altered somewhat and seemed to more align with the version of events given by Ms Stillone. She stated the following: "…I would usually work a Wednesday night shift with Mrs Ziyambi. During my shift, I observed that at around midnight, Ms Ziyambi would got to the Quiet Room in Jacaranda Wing and would sleep until around 05.00... On 2 February 2022, I started my shift at 22:00 I was allocated to work in the Jacaranda Wing. At around midnight I observed Ms Ziyambi to take some blankets from the linen cupboard next to the utilities room and attend the Quiet Room in the Jacaranda Wing next to the nurse's station. I observed her lying on the couch with blankets from where I was at the nurse's station. At around 2:00, Facility CEO Ms Anna Stillone and Facility Manager, Ms Penny Pajic arrived at the Facility. They walked straight into the Quiet Room and turned all the lights on to wake up Ms Ziyambi up. After Ms Stillone and Ms Pajic left, Ms Ziyambi stayed awake and attended to her duties."
4. In cross-examination Mrs Pakaleata was asked how often did Mrs Ziyambi sleep from 12am to 5am. She said: "When I was - when she stay with me on the night, when I work on Wednesdays, because some of the night, she stay with me, like Wednesdays and some of the night she stay on the floor, there's other staff."
5. She then said, somewhat inconsistently with her prior statement that "Every night I work with -with her, Wednesdays, that's what she did."
6. Mrs Ziyambi submitted that Mrs Pakaleata was a disgruntled ex-employee from Destiny who had made a false complaint because she had been terminated from Destiny for taking in a client of Destiny into her home and channelling NDIS funding to herself.
7. Mrs Pakaleata confirmed in cross-examination that she had taken one of the clients of Destiny to live in her home: it was a girl with a disability. She was the main carer at Destiny for this girl. Mrs Pakaleata said she just took her because she asked her for help. Mr Ziyambi called her and told her she would get in trouble for taking the girl.
8. Mrs Pakaleata said that she contacted the co-ordinator who told her that as the girl was already 21 years old she could make her own decision about where to live. Mrs Pakaleata stated that the girl stayed with her family for a period of eight months before another place was available for her to move to. Mrs Pakaleata was apparently told by Mr Ziyambi and Mrs Ziyambi that they would have to check with Ms Maposa about whether Mrs Pakaleata could come back to work at Destiny but she was never terminated. She ultimately decided she would not work at Destiny again but she also said she needed confirmation of her termination from Destiny in order to get the Centrelink payments for the girl's care.
9. Mr Ziyambi gave evidence that he terminated Mrs Pakaleata's employment at Destiny as a result of this incident and provided a copy of a letter of termination with his statement. Mrs Pakaleata said she never received this letter but Mr Ziyambi was not cross-examined about this.
10. We agree with the Commission that whether or not Mrs Pakaleata may have harboured any resentment because her employment with Destiny had ceased was not at all apparent when she gave evidence. She was asked whether she enjoyed working with Mrs Ziyambi at Destiny or Genista, and she stated "Both". She was then asked: "even though you say she would sleep on Wednesday nights" and Mrs Pakileata responded "that's the truth".

Mrs Ziyambi's evidence

1. As noted above, Mrs Ziyambi said she was on her break when Ms Pajic and Ms Stillone attended Genista just after 2am on 2 February 2023. This is consistent with what Mrs Pakaleata said initially in her email to Genista on 17 February 2023.
2. Mrs Ziyambi also said that she was not sleeping but merely having a rest. She said that usually she has difficulty sleeping because she has suffered from insomnia for many years. She did not dispute that during this break she used Genista blankets or went to the lounge to rest, but disputes that the lights were switched off. She said in cross-examination that she had her shoes off because she has hypertension and so sometimes she takes them off for a short period when she is on a break.
3. As a general observation, Mrs Ziyambi was also forthright in her evidence. Like each of the other witnesses, she appeared to us to want to present the narrative that supported her case but also candidly accepted wrongdoing in relation to her secondary employment, working on Destiny matters while at Genista and appeared to us to genuinely not realise the answers she gave during the s 150 hearing may have been misleading.

Consideration

1. The Commission contends: "Having regard to the totality of the evidence [we] can be comfortably satisfied the Respondent was sleeping based on the evidence from five separate eye witnesses, including three witnesses who had 'caught' the Respondent sleeping. Further, the Tribunal can rely on objective evidence including a photograph, records which support the evidence that staff, namely Ms Walker, did not wish to work with the Respondent, record of patient complaint on 4 January 2023 by [Patient A], evidence of a signed complaint by staff on 25 January 2023, evidence from non-direct eye witnesses such as Ms Prince who identified that the Respondent had not undertaken duties while working nightshift, and concessions made by the Respondent that she had used facility blankets consistent with how staff described her making a bed in preparation for sleep.
2. We are not able, on the evidence before us, to be comfortably satisfied (on the balance of probabilities) that Mrs Ziyambi slept during her night shift on 1 February 2023, or if she did, that it was for longer than she is entitled to on a break. This conclusion is largely the result of unexplained inconsistencies and gaps in the evidence.
3. Ms Pajic's timeline of events does not make sense. While we accept that she presented well as a witness, that does not alleviate our concerns about inconsistencies. She says she saw Mrs Ziyambi (via the CCTV footage on her phone) go into the Quiet Room at about 11pm. Mrs Pakaleata however said she went to the room, very non-specifically "after 12am". However, her statement is much more precise and appeared to us to be deliberately consistent with Ms Pajic and Ms Stillone to indicate that Mrs Ziyambi had gone to the room at midnight and was in the room for about 2 hours.
4. Further, Ms Pajic said in cross-examination that after seeing Mrs Ziyambi go into the room at 11pm when she checked the CCTV again as she was getting in the car she did not see the sensor lights come on. We know from her evidence this must have been at about 1.15am. There may be many reasons for this: it could be equally true if no one was in the room, or if while she was driving she was focusing on the road and not on her mobile phone and so did not see a sensor light come one. Overall we consider Ms Pajic's evidence in this regard to be unreliable particularly given she said she had screenshots of the CCTV footage although none were in evidence, but then also said that the footage was all overwritten and so she did not have any footage.
5. Also the contemporaneous evidence supports Mrs Ziyambi's contention that when they came to Genista at 2am, she was taking a break and resting. We find it implausible that if Mrs Ziyambi slept every shift, that Mrs Pakaleata would not have complained at least to another staff member but also Mrs Pakaleata's own evidence confirmed that Mrs Ziyambi was not always on the same floor as her when they worked on a Wednesday shift. We do not understand at what point Mrs Pakaleata decided to say that Mrs Ziyambi slept until 5am every time they were on a shift together but notice that it aligns with Ms Walker's evidence for the Sunday night shift. There is no record of Mrs Pakaleata making this complaint at any earlier point in time or indeed even just after the incident occurred on 2 February. We are conscious that Mrs Pakaleata's departure from Destiny was controversial and while this may have had some bearing on the evidence she gave, we could not be satisfied she was acting as a disgruntled ex-employee (as Mrs Ziyambi contended) but nor could we be satisfied that she was recalling what transpired when she worked with Mrs Ziyambi without interference or influence from the evidence of others given various inconsistencies and anomalies we have referred to.
6. For completeness and as part of "all of the circumstances" we could not ignore the evidence of witnesses in support of Mrs Ziyambi. We note evidence was given by Ms Sundar and Ms Virk about their experiences at Genista and the workplace culture. They spoke highly of Mrs Ziyambi and her hard working and diligent work practices. Each were aware of the Commission's proceedings and complaints and expressed their view that this was another example of the difficult workplace culture and factions at Genista which they both said they had experienced (particularly from Ms Walker) when employed at Genista. Mr Nkomo, who worked with Mrs Ziyambi at WSLHD (but never on a nightshift) also gave a glowing recommendation of Mrs Ziyambi's character and work ethic noting the complaints that had been made against her.
7. The difficulty we had generally with the evidence given by witnesses for the Commission and those for Mrs Ziyambi was that they were all clearly in their camps and it was difficult on the evidence before us to be satisfied of any particular version of events. Not only were there inconsistencies but there were holes in the evidence for both the Commission and Mrs Ziyambi (which we have referred to). Overall, this resulted in us being unsatisfied on the evidence that the Commission had discharged its onus of proof that Mrs Ziyambi slept during the nightshift commencing 1 February 2023.
8. Even if Mrs Ziyambi had slept, we would have been unable to conclude that it was for longer than the break she is permitted to take during the shift or that in that circumstance, it constituted unsatisfactory professional conduct.

Complaint 1, Particular 3

1. This allegation is that on the same nightshift, on 1 February 2023, Mrs Ziyambi failed to administer the prescribed medication to Patient B because she was sleeping whilst on shift. Patient B had returned from hospital following a hip fracture and was on a pain management regime. Ms Stillone and Ms Pajic both stated that they found Patient B in distress and that the pain management regime had not been administered by Mrs Ziyambi.
2. In their statements, Ms Pajic and Ms Stillone, both stated that after a conversation with Mrs Ziyambi, they attended the Lavender Wing and heard Patient B screaming in pain. Ms Pajic said that she had seen Patient B in "excruciating pain" and "highly distressed". In cross-examination Ms Pajic conceded in cross-examination that Patient B was not "screaming but making noises": she was non-verbal and hearing impaired. Ms Pajic was challenged about whether she saw Patient B's distress. She said when she entered the room Patient B had "tears in her eyes" and so was obviously in pain. She described how Ms Stillone knows Auslan, and how Ms Stillone pointed to her hip and Patient B nodded.
3. We pause to note that there is no evidence before us to suggest that either of Ms Stillone or Ms Pajic are medically trained.
4. Mrs Ziyambi accepts that she did not administer endone during her shift to Patient B. She says that she only found out Patient B was in pain the following day in "the termination letter". She stated that she conducted her rounds at 2.30am, and no resident was awake and the "the other AIN staff on duty also confirmed" that no resident was awake.
5. While the Commission contends that the scope of the challenge of this particular is unclear in that Mrs Ziyambi disputes that the resident was in pain, but she does not appear to dispute that she did not administer endone, in our view it is not unclear at all.
6. As noted above, the PRN medication signing sheet shows that endone was to be dispensed "twice daily when required for severe pain". There is no record of endone being administered between 28 to 31 January 2023 nor at all during any nightshift - rather it was usually administered at the commencement of a morning shift and, when administered on a second occasion it was either in the afternoon or evening (before nightshift). Endone was administered to Patient B on 1 February 2023 at 7 am, and then again on 2 February at 7 am.
7. In the Manad Progress Notes, the RN on duty on 2 February 2023 in the morning (Ms Dominguez) recorded at 12.09pm that Patient B was alert and responsive, that she had administered endone with little effect and that Patient B called out in pain every now and then and was seen guarding her lower abdominal area. No endone was administered at 7pm. At 8.17pm the RN (Ms Jasiejko) noted that Patient B "has been settled throughout the shift and did not call out much at all." At 9.06 pm (only an hour later) Dr Kabir noted that Patient B was "unwell with abdo pain and distension" and required transfer to the hospital. Ultimately at 10.15pm on 2 February 2023, Patient B was transferred to hospital.
8. Unusually, the Commission has not put any progress notes before us for 1 February 2023 and there is no explanation for the absence of documentation for this crucial day.
9. It is not disputed that Mrs Ziyambi did not administer endone to Patient B while she was on duty. However, Mrs Ziyambi's evidence was that Patient B was settled. Consequently there would have been no need for her to administer endone.
10. While in Ms Stillone's statement she gave evidence that she told the other AIN to tell Mrs Ziyambi to attend to having Patient B's pain relief administered, there was no evidence that she or Ms Pajic had a conversation with Mrs Ziyambi about their concerns about Patient B. It is to be noted that it was only the RN that had authority to make the decision about whether or not pain relief was required and to then administer pain relief.
11. The Commission contends that the objective set of circumstances, namely that Patient B was profoundly unwell and she was in the habit of calling out is entirely supported by the objective records of Genista. Further, that Patient B was pointing to her abdomen as described by Ms Pajic in cross-examination is also consistent with the abdominal distension that had her admitted into hospital late on 2 February 2023. The Commission contends that having regard to those matters, the Tribunal can safely conclude that Patient B was indeed in distress at the time she was observed by Ms Pajic and Ms Stillone.

Ms Mitchelle Ziyambi's evidence

1. Other than Mrs Ziyambi, the only other witness who does not support the distress of Patient B is Ms Mitchelle Ziyambi, the daughter of Mrs Ziyambi and the AIN on duty when Ms Pajic and Ms Stillone attended on Patient B. Miss Ziyambi in her statement notes the following in respect of that incident "When Ms Penny Pajic and Ms Anna Stillone arrived at the Facility I was seated at the Lavender wing nurse's station attending to my paperwork, and had a conversation with them … they proceeded to walk down the hallway and checked all the rooms, everyone was sleeping. And continued to go the ground floor".
2. When questioned under cross-examination however Miss Ziyambi stated that she did follow Ms Pajic and Ms Stillone into the room. That is consistent with what Ms Stillone says in her statement, that Miss Ziyambi was in the room. However, Miss Ziyambi denies she saw Patient B in a distressed state. The Commission contends that is it remarkable that Miss Ziyambi does not mention Patient B as being in a distressed state and submits that the fact that she was giving evidence in support of her mother; that she understood that any outcome may adversely affect her mother's right to practice; and she was trying to give evidence helpful to her mother's case meant that this affected the weight we should give to her evidence.
3. We have taken those submissions into consideration. However, it may not be so remarkable that Miss Ziyambi did not confirm that Patient B was distressed if Patient B was not so distressed or if Patient B's behaviour was not out of the ordinary. Whether Patient B was in distress and to an extent that required the administration of endone was an assessment for Mrs Ziyambi as RN to make. She gave evidence that she did so at 2.30am and that all patients were asleep and quiet. Miss Ziyambi and Ms Pakaleata both gave evidence that that Mrs Ziyambi did her rounds after Ms Pajic and Ms Walker left and which is consistent with Mrs Ziyambi's evidence. In light of the allegations that had been made to Mrs Ziyambi just 15 minutes earlier by Ms Stillone and Ms Pajic - that she had been asleep - we think it would be highly improbable that Mrs Ziyambi would then fail to check her patients and attend to their needs: to the contrary she would be highly attuned to demonstrating her competency.
4. We are faced with two competing narratives of what occurred and there are difficulties on the evidence before us in accepting either version of events. Ultimately, while we accept Mrs Ziyambi did not administer pain relief to Patient B, we are not satisfied on the evidence that she was required to administer it in the circumstances. The Commission has therefore not discharged its onus of proof in respect of Particular 3.

Complaint 1, particular 4

1. This complaint also arises from the evidence of Ms Pajic and the untested evidence of Ms Stillone. They both say they walked through the facility, and through to the Camellia wing where they observed the AIN A and AIN B, sleeping on the lounge chairs pushed together to make a bed with Genista sheets and blankets. Ms Stillone spoke to both and asked why they were asleep. AIN B allegedly said "it's our break, who are you", Ms Stillone said "It's me Anna, the CEO, you should not be on break together. Does the RN know you are both on break" to which both apparently replied that Mrs Ziyambi knew they were on their break.
2. Mrs Ziyambi says that on 2 February 2023 after Ms Pajic and Ms Stillone had reprimanded her for her AINs being asleep to which she said she did not know they were asleep. Mrs Ziyambi then questioned the two staff members and they informed her they were sitting at the nurses station alert, they denied sleeping and she had no way to further dispute either of their claims.
3. Mrs Ziyambi acknowledges that she has a duty of care as an RN to supervise the AINs and said accepts that she should have paid closer attention to those AINs to ensure they were not sleeping on their shift but that she did not know they were sleeping.
4. The Commission criticises Mrs Ziyambi for failing to get evidence of AIN B for this proceeding when she obtained a reference from her for the fair work proceedings. However, as Mrs Ziyambi submitted, the same could be said of the Commission failing to provide evidence from AIN A and AIN B about the nightshift of 1 February 2023. We do not think these criticisms advances either party's case.
5. Importantly, the particularised basis for this allegation is that the reason why Mrs Ziyambi failed to properly supervise was because she was sleeping during her shift. As we have already found that we are unable to be satisfied on the evidence that Mrs Ziyambi was sleeping, this necessarily means that whether or not Mrs Ziyambi failed to properly supervise has nothing to do with her purported sleeping during the shift. In any event, we are not satisfied on the evidence that Mrs Ziyambi failed to properly supervise the AINs. They were working at a different location from Mrs Ziyambi where she cannot watch them the entire shift. There was no evidence that if those AINs were sleeping, they did so for longer than they are permitted under the Aged Care Award on a break. There was also no evidence that they did not perform their tasks on that shift or that there were any other deficiencies in their performance that night.
6. If anything Mrs Ziyambi should ensure that AINs do not take their breaks at the same time but there was no evidence before us about what Genista requires in respect of break times. Overall we not satisfied on the evidence that the Commission has demonstrated that Mrs Ziyambi failed to supervise AIN B or AIN A on the nightshift commencing 1 February 2023.

Complaint 1, particular 5

1. On 17 November 2021 and 1 December 2021, Mrs Ziyambi performed work for her private business Destiny during work hours at Genista.
2. Mrs Ziyambi admitted that she engaged in these activities but does not admit that they constitute unsatisfactory professional conduct.
3. The Tribunal is satisfied that the conduct occurred. We note that Mrs Ziyambi said at the time and in these proceedings, that she was doing these things in her break and that she did not know she was not permitted to do these things during her break. However, we are satisfied that Mrs Ziyambi was performing these activities well in excess of her break time on these dates and she should have been aware of that. Given her seniority, she should have known that performing personal tasks in excess of her break time and using Genista facilities might constitute unsatisfactory professional conduct.
4. We note that Mrs Ziyambi was reprimanded by Genista in December 2021 for her conduct and there was no evidence pointed out to us to suggest that this conduct was repeated after she was reprimanded.
5. We are satisfied that her actions, while improper in her employment situation, are objectively minor and do not of themselves in our view constitute improper conduct relating to the practice of nursing such as to constitute unsatisfactory professional conduct.

Complaint 1, particular 6

1. Mrs Ziyambi admits that she failed to disclose to WSLHD her secondary employment at Genista and that this was in breach of Clause 4.3.7 of the NSW Health Code of Conduct.
2. Mrs Ziyambi says it has already been dealt with by WSLHD and it should not be reagitated now.
3. However, whether or not certain conduct has already been addressed by WSLHD reprimanding her is different from a complaint made by the Commission under the National Law. In particular, under s 7(1) Health Care Complaints Commission Act 1993 (NSW) ("HCCC Act") a complaint can be made about the professional conduct of a practitioner and the Commission is empowered under s 80(1) of the HCCC Act to receive and deal with complaints and refer them for prosecution to the Tribunal. It may be that any previous reprimand of Mrs Ziyambi may be something she wishes to agitate in any Stage 2 hearing, noting that currently the Tribunal is dealing with Stage 1 being making findings about the conduct of Mrs Ziyambi.
4. We are satisfied on the evidence that given Mrs Ziyambi's experience, seniority and as someone who has undertaken extensive continuing professional development, she should have known that failure to disclose her secondary employment was a breach of the Code of Conduct. We also find this constitutes improper conduct in the practice of nursing and consequently Mrs Ziyambi is guilty of unsatisfactory professional conduct.

Complaint 1, particular 7

1. It is alleged that between January 2020 and January 2023, Mrs Ziyambi failed to uphold the responsibility contained in Clause 7.1.b of the Nursing and Midwifery Board of Australia's Code of Conduct ("Code of Conduct") by working at Cumberland Hospital, working part-time, and undertaking an unknown amount of work for Destiny.
2. Clause 7.1 provides: "Domain: Promote Health and Wellbeing Principle 7: Health and Wellbeing … 7.1 Your and your colleagues' health Nurses have a responsibility to maintain their physical and mental health and practise safely and effectively. To promote health for nursing practice, nurses must: … b. act to reduce the effect of fatigue and stress on their health, and on their ability to provide safe care."
3. Mrs Ziyambi denies that she was affected by fatigue and stress, such that she was required to act in a way to reduce either. She says she had two jobs and a personal business, however she states that she had never "experienced unmanageable fatigue and stress that negatively affected my ability to provide safe care". She further states that she has been able to manage her shifts and secondary employment, is supported by her family (but also largely supports her family financially) and has received numerous accolades in relation to her work in mental health.
4. The Commission submits: "Firstly, the obligation on the Respondent was to reduce 'stress' however it manifests, and not merely to reduce 'unmanageable fatigue and stress'; Secondly, the Respondent notes that 'Whilst there is no excuse for my actions, during this period I had been under great financial stress that lead me to take up many employments to alleviate my financial burden'. That is, the Respondent overtly acknowledged that she was under a form of stress that caused her to take up many employments. While it may be understandable that a person wishing to alleviate financial stress may seek to take up additional employment, that conduct is in direct contradiction to the spirit of the provision which stipulates that nurses have responsibility to practise 'safely and effectively', through the reduction of stressors and fatigue; Thirdly, the act of holding down three forms of employment was a clear failure to act in way to reduce stress and/or fatigue. The Respondent's insistence on holding down three jobs to better her financial predicament is likely to have caused her to experience fatigue which manifested in her sleeping whilst on shift at Genista. The combination of holding three forms of employment was a clear failure on her part to reduce stress and/or fatigue."
5. There was no evidence before us to the effect that at any stage Mrs Ziyambi has provided anything other than safe care for her patients. It is clear Mrs Ziyambi has numerous stressors on her (including these proceedings) but also the care and support of her family. On the evidence before us we are not satisfied that she was suffering from "fatigue which manifested in her sleeping whilst on shift at Genista" - we were unable to be satisfied that she slept. If Mrs Ziyambi slept during her break on a nightshift, that also would not have amounted to unsatisfactory professional conduct. RNs are entitled to a break and there is no prohibition on resting or sleeping during that break period: to the contrary, in practice it is recommended.
6. However, we have concerns about the practice of nursing full-time during the day in addition to two or three nights shifts during the week (which on the rosters before us demonstrate was what Mrs Ziyambi was doing). Working in this way means that at least on the nightshifts which ended during a week workday, Mrs Ziyambi would have commenced her day job with little to no sleep. This is the opposite of acting to reduce the effect of fatigue and stress on her and should be avoided. It also creates an unacceptable risk to the level of care provided to patients for patients.
7. Further, given Mrs Ziyambi's level of experience as an RN, she should have known this created an unacceptable risk to her health but also to the safety of patients in her care. It was improper for her not to act in accordance with the Code of Conduct
8. We are satisfied on the evidence that Mrs Ziyambi is in breach of cl 7.1(b) of the Code of Conduct and that it constitutes unsatisfactory professional conduct.

Complaint Two, particulars 8 and 9

1. On 8 March 2023, Mrs Ziyambi attended a s 150 hearing.
2. It is alleged by the Commission that she made the following representations about Destiny which were false and/or misleading: "(a) When asked 'Do you have a business at the moment' she responded 'I can't say I have a business as such, I just registered a business but I'm not fully functional'. (b) Currently there's only about two, three participants, it's not much and I'm not really involved. I don't spend any hours at all in that business. My partner is the one that deals with those participants at the moment'."
3. Further, in correspondence to the Commission on 14 April 2023, Mrs Ziyambi stated: "I do have 50 percent shares in a NDIS company called Destiny Empowerment Care Services. The company was registered in 2020 but it is not fully functional due to COVID-19. Currently there are a few participants for community participation. My business partner has been handling the company affairs since 2020 as I was in a highly involving Acting Nurse Manager role for the whole of 2021."
4. We note that Destiny was incorporated in June 2019. Ms Maposa is also a director of Destiny and both her and Mrs Ziyambi hold 50% of the shares each in the company. The Commission served notices to Ms Maposa requiring her to provide information and documents about Destiny. She provided various documents including the Annual GST return for the period 1 July 2019 to 30 June 2020 which showed no business activity (no sales). For the second year (the period 1 July 2020 to 30 June 2021) the Annual GST Return records total sales of $106,995. There were no returns for the 2022 or 2023 years. Ms Maposa said that Mrs Ziyambi's responsibilities were finalising payroll and roster of staff.
5. Mr Ziyambi gave evidence and said that he was the Acting Manager for Destiny. He said Mrs Ziyambi worked "ad hoc" in the Destiny business. This was not inconsistent with Mrs Ziyambi's evidence.
6. In response to the allegations, in her evidence Mrs Ziyambi stated: "I was nervous as this is the first time I have been under investigation. A such I acknowledge and accept that English is my second language and during this meeting, I felt overwhelmed, anxious and this may have impaired my understanding of the questions, use of English terminology, my responses and acknowledges that this in no way an excuse for my responses. I understand that my responses may have been incomplete and would be reasonably considered misleading and note that I had no intention of misleading the Commission."
7. Mrs Ziyambi was cross-examined about the evidence she gave at the s 150 hearing and in correspondence. She was apologetic for her responses but again reiterated she did not intend to mislead the Commission. She accepted that her answers may have been incomplete. Having seen her cross-examination we observed that her command of English while good, was limited and her accent was very thick which made her responses at time difficult to understand.
8. We have reviewed the transcript of the s 150 hearing. There is some ambiguity in her answer "I'm not fully functional." No one clarified that answer with her and it is not clear to us that whether she was suggesting the business was not fully functional or that she did not do much or perform many functions in the business. There was insufficient evidence for us to conclude that the business was fully functional and whether that was because of the effects of COVID or something else. We could not assess the 2020 and 2021 records against 2022 and 2023 because they were not in evidence before us.
9. It also seems to us that Mrs Ziyambi, while a director, had a limited physical role to play - confined to payroll and rosters.
10. As for how many participants were in the business, there was no evidence before us that in 2023 there was more than five participants. Mrs Ziyambi's response that there were a "few" is not so different from five as to cause us to conclude that she was being misleading or minimising the amount of work Destiny performs.
11. Having assessed her evidence in cross-examination and considered the evidence including the transcript of the s 150 hearing and the 14 April correspondence, we are not satisfied that the answers she gave were misleading or false. In context, she did not try to avoid or minimise her involvement. She has maintained that she did the payroll and rosters for Destiny which was the very activity she was caught at Genista doing during her breaks in 2021. We did not perceive her answers to be false or misleading or deliberately so. While she may have given incomplete answers, we accept that was a result of nervousness in the s 150 hearing and the limitations in language and explanation.
12. For these reasons, on balance we find that the Commission has failed to establish Complaint 2 particulars 8 and 9.

Complaint 3

1. Complaint 3 alleges that when considering Complaints 1 and 2, individually or together, Mrs Ziyambi is guilty of professional misconduct pursuant to s 139E of the National Law.
2. We are unable to conclude that our findings in respect of Complaint 1, particular 6 and 7 are of a sufficiently serious nature of themselves or together, to justify the suspension of Mrs Ziyambi's registration. While they are missteps and unacceptable and certainly warranted reprimand by Genista and the WSHLD, they are not on the more serious side of the scale that would justify a suspension.
3. Further we do not agree with the Commission that Mrs Ziyambi has not shown insight into her conduct. She candidly admitted her fault in these proceedings and did not deny the conduct in particulars 5, 6 and 7. As for the balance of the allegations we have not found that they were established by the Commission on the evidence and it was not inappropriate for her to deny those allegations.
4. Contrary to the Commission's submission, we do not consider that the protection of the health and safety of the public requires a finding of professional misconduct under s 139E of the National Law against Mrs Ziyambi.

Conclusion

1. We order: 1. Mrs Ziyambi is guilty of unsatisfactory professional conduct in respect of Complaint 1 particulars 6 and 7. 2. The conduct particularised in Complaint 1 particular 5 occurred but does not constitute unsatisfactory professional conduct. 3. The balance of Complaint 1 (particulars 1, 2, 3, 4 and 5) and Complaints 2 and 3 are dismissed. 4. The question of costs is to be determined as part of the Stage 2 proceeding.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 10 September 2024