Way v Department of Family and Community Services

Background

1. The appellant is 52 years old. She commenced employment with the Department in 1989 as a casual employee. For the past 25 years, the appellant has been employed as a Disability Support Worker. She has been an Acting Team Leader since 2 November 2010 and was made a permanent Team Leader in March 2016. During the appellant's 27 years with the Department she has not been the subject of any previous disciplinary action.
2. Group homes run by the Department generally cater for people with physical and intellectual disabilities and associated conditions such as physical, mental health or a special diagnosis syndrome. The Department provides 24 hours/7 days a week supported accommodation to residents with direct care provided by Disability Support Workers plus Team Leaders.

Valley View Group Home

1. The Valley View Group Home accommodates five clients with a variety of disabilities and associated medical and support needs. According to the evidence given by the appellant, at the time of the events which gave rise to the findings of misconduct against her, those clients were: 1. A 68 year old male client who is wheelchair dependent, developmentally delayed and has cerebral palsy. He is non-verbal. His health is managed by multiple specialists. He is totally dependent on staff for all essential needs and is a long-term resident of the group home. 2. SL is a 22 year old male client diagnosed with lissenecephaly-pachygyria. He also suffers from developmental delay, Lennox-Gastaut syndrome (uncontrolled epilepsy), chronic right hip displacement, asthma, severe gastro-oesophageal reflux disease with stenosis (narrowing of the oesophagus) and severe scoliosis. The greatest risk to SL's health his his severe gastro-oesophageal reflux disease. Managing this disorder is paramount for his health. SL receives all is nutrition and medication via a PEG tube in his stomach. His health is managed by multiple specialists. He is non-verbal and totally dependent on staff for all essential needs. SL commenced as a resident of the group home in May 2014. 3. A 60 year old female client who has Down syndrome and suffers from poor mobility, dementia, sleep apnoea, poor vision, osteoporosis and a number of other conditions. She is verbal but can be difficult to understand. Her health is managed by multiple specialists. She is totally dependent on staff for all essential needs and is a long-term resident of the group home. 4. SS is a 62 year old female client who is developmentally disabled and has vision impairment as well as a number of other conditions including epilepsy, ataxia, lazy bowel, depression, hypertension, osteoporosis and a spinal cord injury as a result of a fall in 2013. SS is susceptible to autonomic dysreflexia which has resulted in the need for a supra pubic catheter. Her specialist recommends that she drinks around two litres of fluid a day. She is totally dependent on staff to make and hold a drink to her mouth hourly for consumption. A Community Nurse comes to the group home monthly to change the supra pubic catheter and staff change the urine collection bag attached to the catheter weekly. SS is able to communicate verbally. Her health is managed by multiple specialists. She is totally dependent on staff for all essential needs and has been a resident of the group home since 2010. 5. A 58 year old female client who is wheelchair dependent, developmentally delayed and has a spinal cord injury sustained in early adulthood with significant left side weakness, osteoporosis and a range of other conditions. Her health needs are very complex and she can become unwell quickly. She also has a supra pubic catheter inserted due to the spinal cord injury. She is able to communicate verbally. Her health is managed by multiple specialists. She is totally dependent on staff for all essential needs and has been a resident of the group home since October 2014.
2. Along with the appellant, who was the Team Leader, there was also employed at the group home a number of Disability Support Workers, including Carol Patfield and Angela Ford. Prior to the two matters which gave rise to the decision to demote the appellant, there was a degree of dysfunction in the relationships between staff members at the group home.
3. The appellant herself had raised complaints earlier in 2016 against two Disability Support Workers, Clifton Gilmore and Ms Patfield. Ms Patfield had sought the assistance of the Public Service Association ("PSA") in relation to how those complaints were managed. The response came back from the Department's Professional Conduct, Ethics and Performance Unit ("PCEP") in August 2016, that the complaints against Mr Gilmore and Ms Patfield had been managed appropriately.
4. Other staff had complained about inequitable rostering and inadequate management of the unit by the appellant.
5. It is against this background that the matters which led to the demotion of the appellant were raised.

Incident of February 2016 involving SL

1. After returning from six weeks' leave in late January/early February 2016, the appellant became aware of a deterioration in SL's positioning at night. At that time, pillows and towels were being used to maintain SL's position as upright as possible to minimise the risk of aspiration associated with SL's severe gastro-oesophageal reflux disease. The appellant observed that this method was failing to keep SL properly positioned.
2. According to the appellant, in approximately the second week of February 2016, she asked another staff member to go and buy some foam from Clark Rubber and have it cut into wedges. The appellant demonstrated with her hands the angle that she thought would be suitable to place on either side of SL's body. In making this decision, the appellant was aware that she was not an Occupational Therapist but, given the current risks to SL (and, in particular, the need to ensure that he could breathe freely) and the success that SL's mother had previously had using wedges at home, as well as the fact that a relevant professional therapist was not available at that time to assist, the appellant considered that it was better to use the foam wedges to assist with SL's positioning rather than persisting with a system of pillows and towels which was not working. It was the appellant's understanding that, at this time, Departmental professional support was not available due to the roll out of the National Disability Insurance Scheme ("NDIS").
3. On 1 June 2016, Ms Ford raised an issue of concern relating to the safety and wellbeing of SL, arising from the use of the foam wedges, with Carlos Ybarra, Coordinator, Accommodation and Respite Cluster. On the following day, Mr Ybarra contacted the group home by telephone and instructed Jenny Hamilton, relief Team Leader, to write an entry in the communication book instructing staff members not to use the wedges.
4. Nothing further happened in relation to this matter until 14 September 2016, when Ms Ford, who no longer worked at the group home, lodged a formal grievance with Rebecca Belfield, who was, at that time, employed as the Manager, Accommodation and Respite, Hunter New England, with the Department. The matter was considered by PCEP and ultimately became Allegation 2 which was formally notified to the appellant by way of correspondence from Ms Brunner dated 27 October 2016.
5. The appellant was advised by Ms Brunner that she had decided to deal with the matter as an allegation of misconduct under section 69 of the Government Sector Employment Act 2013 ("the GSE Act"). The appellant was also advised that Ms Thane had been appointed as the independent investigator to conduct an investigation and to prepare an investigation report for Ms Brunner.

Incident of September 2016 involving SS

1. On the evening of Sunday, 4 September 2016, Ms Patfield and Ms Ford were the Disability Support Workers on duty at the Valley View Group Home. SS was observed to be unwell. The two staff members decided to contact an after-hours doctor who attended upon SS at about 7.00pm. The doctor left a prescription for five days' of antibiotics for SS. The prescription was not faxed by either Ms Patfield or Ms Ford to the pharmacy that evening to be filled.
2. The appellant became aware of the prescription when she attended for work at 6.00am on the following day, Monday, 5 September 2016. The appellant was rostered to perform administrative work on that day but, due to the unavailability of a rostered Disability Support Worker whose mother had just died suddenly, the appellant was required to perform hands-on work to assist the clients with their morning routines.
3. The prescription was not filled on that day or the on following day, Tuesday, 6 September. On Wednesday, 7 September, Ms Patfield contacted Ms Belfield about the unfilled prescription for SS. Ms Belfield spoke to Mr Ybarra and asked him to contact the group home and arrange for the prescription to be filled and a follow-up appointment made for SS to see her local doctor. The prescription was filled that day.
4. This matter was also reported to PCEP and ultimately became Allegation 1 which was referred to Ms Thane for investigation.
5. Prior to the investigation by Ms Thane, the appellant attended a meeting with Deborah Missingham, Senior Manager, Community Access Services of the Department, at which both incidents were discussed.

The investigation

1. As part of her investigation, Ms Thane reviewed a number of documents and interviewed following persons: • Deborah Missingham, Senior Manager, Community Access Services. • Rebecca Belfield, Manager, Accommodation and Respite, Hunter New England. • Carol Patfield, Disability Support Worker, Valley View Group Home. • Angela Ford, Disability Support Worker, Valley View Group Home. • Jenny Hamilton, Disability Support Worker, Valley View Group Home. • Sharon Way, Team Leader, Valley View Group Home.
2. In relation to Allegation 1, Ms Thane stated in her investigation report as follows: 6.27 The investigator is of the view that if Ms Ford and Ms Patfield could be relied upon to call a doctor without first seeking their manager's approval, one of both should have taken responsibility for ensuring that the doctor's recommendations were complied with. This is particularly when Ms Patfield claimed that she had concerns that Ms [SS] was "totally unwell," (an observation that it is noted does not appear anywhere in the shift notes and is contrary to Ms Hamilton and Ms Way's claims that Ms [SS] was in sufficient good health to attend her day programs that week). 6.28 The shift paperwork is inconsistent with both Ms Patfield and Mr (Ms) Ford's oral evidence. There is also material that supports Ms Way's claims that Ms Patfield has previously called medical assistance when not required and on other occasions not administered appropriate care. It is considered that this does not make Ms Patfield a reliable or credible witness and when teamed with the timing of Ms Ford's complaint, the investigator cannot discount the fact that there may be vexatious intent. 6.29 The investigator appreciates that Ms Missingham found Ms Way to be "smug" in her attitude and Mr Ybarra felt she lacked self-awareness and insight into what should have occurred in the circumstances. However, this was not the investigator's experience. Ms Way comes across as a confident woman, but she was not arrogant, nor did she regard her opinion as being superior to that of a qualified medical practitioner. If she didn't appreciate her obligations as team leader previously, she certainly does now and she conceded that as team leader she either should have taken steps for the script to be filled or spoken with or arranged an appointment with Ms [SS's] GP if there was doubt about whether the antibiotics were necessary. 6.30 For these reasons the investigator finds that whilst the allegation is technically made out, it does not constitute misconduct when all the circumstances are taken into consideration. Further, the investigator finds that Ms Way acted in good faith and did her best under trying conditions. Her conduct cannot be rightly categorised as neglect or ill-treatment of a client within the meaning of the Ombudsman's Act.
3. In relation to Allegation 2, Ms Thane stated: 6.43 The investigator is satisfied on the evidence that Ms Way put in place the use of foam wedges to support Mr [SL], in circumstances where the practice had not been assessed or approved by an occupational therapist (OT). 6.44 However, it is common ground that OT and physiotherapist services had been withdrawn to ADHC Maitland and Newcastle sites at this time and staff believed that the services would be provided under the NDIS. The investigator is satisfied on the balance that Ms Way acted in good faith and honestly believed that her actions were an interim measure until Mr [SL's] NDIS plan was finalised. 6.45 The evidence shows that Ms Way communicated with Mr [SL's] mother and other medical health professionals who were fully aware and supported the use of the wedges system. According to Ms Way, the practice had been used by Mr [SL's] mother in their home for many years with success. Based on Ms Wats (Way's) evidence, the staff who used the wedges, including Ms Ford, felt that it was more effective than the use of pillows and rolled up towels. 6.46 The investigator does not accept that the hygiene concerns, raised by Ms Missingham are any more significant than those experienced by using pillows or towels and accepts Ms Way's claims that by their nature and positioning, the wedges did not tend to get soiled, but in any event, they could be washed if necessary. The investigator accepts that there was a lack of documentation as to how the wedges should be properly applied, however, in a practical sense the staff applying the system really had to rely on their own observation of Mr [SL's] positioning, by feeling for the gap near his ribs and hip and raising his right arm to open his airway up. 6.47 Whilst Ms Way may not have expressed contrition when discussing the issue with Ms Missingham and Ms Way's extensive knowledge of Mr [SL's] condition and history was interpreted by Missingham as arrogance; Ms Way now appreciates that she has to take responsibility as team leader for her decision to use the wedges. 6.48 Further, whilst she now understands that she should have requested that management provide an OT, she was fully aware that none were available. She therefore was still left in the position of having to deal with the fact that the pillows and towels were no longer effective in supporting Mr [SL] properly and there were also work health and safety issues for staff in repositioning Mr [SL] at night. 6.49 As the matter was addressed in June 2016 with the use of the wedges being discontinued, the investigator questions Ms Ford's motivation in bringing her complaint at this time and does not accept that there was any genuine risk to Mr [SL], by having the wedges left on the premises. When these matters viewed in conjunction with Ms Patfield's complaint, the investigator cannot discount the fact that there may have been vexatious intent on Ms Ford's part. 6.50 At the end of the day, the allegation is technically made out, but when all the circumstances are taken into account, the investigator does not consider that Ms Way's conduct constitutes misconduct. Further, the investigator finds that Ms Way acted in good faith and did her best under the uncertain environment created with the implementation of the NDIS. Her conduct cannot be rightly categorised as neglect or ill-treatment of a client within the meaning of the Ombudsman's Act. 6.51 The matter highlights the stresses involved in making the day to day decisions as a team leader in a group home and the need for management to support them in these roles. There would also appear to possibly be some miscommunication around the NDIS, which FACS may consider addressing through better education of its staff.
4. After having canvassed the evidence presented to her during the investigation, Ms Thane made the following findings and recommendations:

7. Findings 7.1 For the reasons as outlined in this investigation report the investigator finds that Ms Way's inaction and her failure to instruct another staff member to obtain and administer the antibiotic to Ms [SS] were factors which resulted in the delay of medical treatment being administered to the client following a doctor's assessment and recommendation and on this basis the allegation is sustained on the balance of probabilities. However, the investigator is not satisfied, in all the circumstances that Ms Way's conduct constitutes misconduct. 7.2 For the reasons as outlined in this Investigation Report the investigator finds that the allegation that Ms Way put in place the use of wedges to support client Mr [SL], without a relevant assessment being completed and approved by a relevant professional is sustained on the balance of probabilities. However, the investigator is not satisfied, in all the circumstances that Ms Way's conduct constitutes misconduct. 7.3 In addition, the investigator is not satisfied that the 2 allegations are sustained for the purposes of the NSW Ombudsman's Part 3C requirements under the Ombudsman Act 1974 and in particular, the investigator does not consider that Ms Way's conduct constitutes neglect or ill-treatment of a client.

8. Recommendations 8.1 For the reasons as detailed in this investigation report, the investigator is satisfied that there is sufficient evidence to sustain the 2 allegations in a technical sense. However, the investigator does not consider, based on the evidence and in all the circumstances, that Ms Way's conduct constitutes misconduct. 8.2 It is recommended therefore that the decision maker support the investigator's findings and take no further action against Ms Way in respect of those allegations. 7.4 For the reasons as outlined, the investigator is not satisfied that 2 allegations are sustained for the purposes of the NSW Ombudsman's Part 3C requirements under the Ombudsman Act 1974 and in particular, the investigator does not consider that Ms Way's conduct constitutes neglect or ill-treatment of a client. 8.3 It is recommended that PCEP officers complete the Part B "Reportable Incident" Notification Form and file with the NSW Ombudsman without delay supporting the investigator's findings.
9. As stated above, the decision maker, Ms Brunner disagreed with the investigator's findings and recommendations and initiated a disciplinary process which ultimately resulted in the reduction of the appellant's classification and grade from Team Leader to Disability Support Worker Year 10.

The respondent's evidence

1. As is the usual procedure in public sector disciplinary appeals, the respondent presented its evidentiary case first. Pam Brunner
2. On 10 February 2017, Ms Brunner wrote to the appellant enclosing a copy of Ms Thane's investigation report and stating that she did not agree with the investigator's "recommendation" that the appellant had not engaged in misconduct. Ms Brunner stated that she had formed the opinion that the appellant had engaged in misconduct in relation to the two allegations which had been the subject of the investigation by Ms Thane. Ms Brunner further stated that she was considering imposing a penalty against the appellant, the most severe penalty that she would conceivably impose being a reduction in the appellant's classification and grade to a Disability Support Worker Year 10.
3. On 3 March 2017, Ms Brunner met with the appellant and her support person. Following that meeting, on or about 8 March 2017, Ms Brunner received a written submission from the appellant.
4. Ms Brunner's witness statement contained the following: 24. After I received the written submission I reviewed the material including the transcript of the meeting on 3 March 2017 and the investigative report and determined that misconduct had occurred and that the appropriate disciplinary action was a demotion back to a disability support worker position (DSW). 25. In relation to the failure to ensure that the doctor's prescription for Ms [SS] was filled and that she was provided with the medication, I formed the view that the appellant had failed in her role as a Team Leader. She had done this by inexplicably taking the view that she knew best in relation to the health of a resident and by placing herself in a position of exercising authority over the proper role of doctor so that a resident was placed in a position of genuine risk. 26. In the interview with her, the appellant struck me as being neither remorseful nor apologetic or genuinely recognising the failure in her duty of care to a resident as shown by her conduct. 27. Similarly, she took a position in relation to [SL] relating to the use of wedges that once again showed that she regarded herself as being in a position to make important decisions that are meant to be made by professionals-in this case an occupational therapist. 28. The appellant did not in her response, either verbal or written, provide any real response to the failure to seek proper assistance for Mr [SL] notwithstanding the very real risks to someone like him when an important therapeutic role was being taken by someone (that is, the appellant) who did not know what they were doing. There appeared to be no appreciation of the inter-relationships of the conditions and the exposures for Mr [SL]. 29. On the basis of the above I felt that it was imperative to remove the appellant from her Team Leader role. These group homes are set up so that vulnerable members of the community who have disabilities both physical and intellectual will be cared for and their families will know (as will the community) that their loved ones are in the best care and not subject to the whims of a person without relevant qualifications making arbitrary decisions that could have serious consequences for their health. 30. I also take the view that employees in the public service should serve the community on the basis that they receive good wages and conditions. 31. I took the view in this case that termination of employment was not appropriate as the appellant had been a DSW for over 20 years and the penalty may be arguably harsh in all the circumstances. 32. The penalty imposed was entirely appropriate in the circumstances where Team Leaders in group homes have significant responsibilities and it is imperative that they follow recognised rules policies and procedures and adhere to the same… Karin North
5. Ms North is the Director, Disability, for the Department for the Hunter Central Coast district. She has held this role since January 2017. Prior to holding this position she was Director, Disability Services, Hunter New England district from 2013. Ms North gave evidence about a meeting she had with the appellant on 24 March 2017, after the decision had been made to demote the appellant to the position of Disability Support Worker.
6. Ms North gave evidence about the discussion she had with the appellant concerning the appellant's placement in the event that this appeal was upheld by the Commission and the appellant was restored to the position of Team Leader. It was Ms North's position that, having regard to Work Health Safety considerations and the well-being of the appellant, she would not be returning to the Team Leader role at the Valley View Group Home. Ms North told the appellant that the Team Leader role at Valley View had been filled and concluded by saying "that if the IRC over turned the decision we would consider Team Leader options having regard to the circumstances".
7. Ms North's witness statement then continued as follows: 13. During the meeting after I had presented these options to Sharon, she said words to the effect of: 'My situation is unfair. I have been the victim here and been bullied by the staff. I care about the clients and the people who are really at fault are still at the group home.' She later said towards the end of the meeting words to the effect of: 'I care about what happens to these clients and if I was in the same situation I would do the same again as I did.' I was surprised by this last statement. In the context in which it was said, I took that to mean that Ms Way was of the view that if she was confronted with the same situations again, she would behave as she had when these incidents with Ms [SS] and Mr [SL] had occurred. Carol Patfield
8. Ms Patfield was on duty as a Disability Support Worker at the Valley View Group Home on the afternoon of 4 September 2016. Ms Patfield's witness statement contained the following: 5. I was on duty at Valley View on the afternoon of 4 September 2016. I recall that a Doctor was called because [SS] had been unwell and had very concentrated urine. She has an ongoing problem with urinary tract infections. This is due to having a Super Pubic Catheter. 6. A script was provided by the Doctor and was left in the communications book for staff to deal with the next morning being a Monday. Ordinarily they would fax it to the pharmacy or someone would run down and get it filled once the morning work of getting residents ready for outings etc. had been completed, which is around 09.00hrs. 7. I arrived at work on the afternoon of Monday 5 September and saw the script wasn't filled. I recall the afternoon shift was very busy as [SS] was extremely unwell and also other Clients had to be cared for. 8. Sharon Way arrived for the night shift about 9.30pm that evening and we had a conversation using words to the following effect: Me: 'Sharon, what is happening with the script for [SS]?' Sharon: 'The script is not being filled, she is not sick.' Me: 'This is a Doctor's recommendation.' Sharon: 'She's not having them. I don't like my guys being over medicated.' 9. I think Sharon may have mentioned calling Jenny Hamilton about it as Jenny was [SS's] key worker. 10. I rang Jenny on the Tuesday (she was at work on Tuesday morning) but Jenny told me that Sharon Way had said the script was not being filled. Jenny also stated this may come back and bite us. 11. I made this call to Jenny after I had come back to work on Tuesday for my afternoon shift and saw the script still sitting there unfilled. 12. That night Sharon Way came in about 9.30pm and we had a conversation sometime thereafter. She was very agitated. She said to me words to the effect of: 'I've spoken to Jenny Hamilton. She has complained about you calling her at home about the script. She ([SS]) is not getting the script.' 13. Sharon was very agitated and speaking to me in a most unpleasant manner. I left work early about 9.50pm because I was not going to tolerate being spoken to in that manner. 14. I then rang Rebecca Belfield as [SS] was very unwell, in a lot of discomfort and was screaming and yelling. She asked me to speak to Deborah Messingham about it. 15. I understand that ultimately Carlos Ybarra told staff to get the script filled because when I got in on the Thursday the script had been filled.
9. On 20 September 2016, Ms Patfield lodged a formal grievance form with Ms Belfield. In her covering email, Ms Patfield stated "I would like a response from you regarding my wellbeing while working in this unit to prevent further exposure to bullying and harassment". In the grievance form, Ms Patfield set out her version of events surrounding the issue of the unfilled prescription for SS and complained of the treatment that she had received from the appellant and from Ms Hamilton.
10. Ms Patfield was cross-examined at some length as to why the script was not faxed to the pharmacist on the evening of 4 September 2016, when she and Ms Ford were on duty. Ms Patfield claimed that the practice at the group home was to leave the script in the communication book for the staff to follow up the next day. Carlos Ybarra
11. Mr Ybarra no longer works for the Department. During 2016 he was employed by the Department as a Coordinator, Accommodation and Respite Cluster, and had responsibility for the Valley View Group Home. The appellant reported to Mr Ybarra.
12. Mr Ybarra gave the following evidence: Q. Can I just ask you if you recall, or do you recall who first informed you of the incident in relation to [SS] and the script, do you recall who first informed you about this? A. I recall Rebecca Belfield, who was my manager at that time, informed me that she had been informed of the script had not been filled, and she asked me to call the group home and advise them why the script hasn't been filled, and I did. Q. Did you ring the group home? A. So I rang the group home, yes, after conversation with Rebecca Belfield, and informed them was there a script there for [SS], and they said yes, and I said-- Q. Can you recall who you spoke to? A. I remember speaking to Jenny Hamilton, who was the acting team leader that day, or she was just really support worker. Q. And do you recall, as best you can recall, the conversation you had when you rang, or when you spoke to her that day? A. Yep, so basically it was "Is there a script there for [SS]", she confirmed there was and I asked her to fill that right away. Q. Did you ask her why the script hadn't been filled to that point in time? A. Yes, she reported that [SS] wasn't sick, it was reported by the team leader, Sharon Way, that the script did not need to be filled and that's why the script had not been filled at that point in time. So I asked them to fill the script, I directed them to fill the script right away. Q. Sorry, so just, she told you, did she give you an indication that Sharon Way had told her something? A. Yes, so when I asked why the script hadn't been filled, Jenny Hamilton said that team leader Sharon Way had told the team not to fill the script, due to, you know, [SS] not being sick and that's why they had not filled the script as of yet.
13. On Tuesday, 6 September 2016, Mr Ybarra filled out a Client Incident Report which contained the following:

Incident Details: On 4.09.2016, A Doctor attended at Valley View Group Home to see Resident [SS], a script for antibiotics was given and a recommendation of seeking a review from G.P for possible UTI. On 6.09.2016, Coordinator was informed charted antibiotic had not been filled, as it was felt by various group home staff members resident [SS] was not sick. ……………….

Incident Category: Category 4 Incident Type: Med. error - minor or no risk

1. Mr Ybarra subsequently, on 26 September 2016, prepared and Allegation Notification Form which went to PCEP. That document set out the following: Summary of allegation: Ms Sharon Way, Team Leader Valley View group home advised group home staff that they did not need to fill the antibiotic script for resident Ms [SS], as Ms [SS] was not 'sick', despite a doctor recommending antibiotics for [SS]. Details of incident: On Sunday 4 September 2016 at approximately 19:00 hours, Disability Support Workers (DSW), Ms Carol Patfield and Ms Angela Ford contacted the on-call doctor as they were concerned about Ms [SS's] health. The doctor attended the unit, prescribed antibiotics for a possible urinary tract infection; and recommended that Ms [SS] see her local doctor for follow-up. On 7 September 2016, DSW Ms Carol Patfield, contacted Manager Accommodation and Respite, Ms Rebecca Belfield to raise concerns that the script had not been filled. Manager A&R requested that Ms Patfield put her concerns in writing, which was received on 22 September 2016. Ms Patfield advised that DSW Ms Angela Ford wrote a note in the communication book requesting that DSW's on day shift on Monday 5 September 2016 arrange for the script to be filled. Ms Patfield reports that she was concerned that the script had not been filled when she came onto shift on 5 September 2016 at 14:00; so raised the matter with the Team Leader, Ms Sharon Way who advised that the script did not need to be filled as Ms [SS] was not sick. Script filled on 7 September 2016 following direction from Coordinator A&R and doctors appointment scheduled for 6 October 2016 for a review. On 26 September 2016, Coordinator A&R Ms Ybarra met with Ms Way to discuss the matter. Ms Way advised that Ms [SS] was not sick, so therefore did not require antibiotics; nor did she see the need to seek further advice from the doctor. Refer to attached email for summary of discussion. ………………. Coordinator A&R Mr Ybarra informed Ms Way that he is concerned that she did not arrange for the script be filled, nor arrange for Ms [SS] to be taken to the doctor for a review if she believed that she was not sick. Ms Way has not been advised of the PCEP matter. Please note: we are waiting for a report from a recent PCEP matter in which a number of staff from Valley View group home were interviewed by a private investigator. There have also been issues raised by the PSA in relation to the rostering practices and management of complaints by the Team Leader, along with two recent grievances which are currently being reviewed. PCEP advice required about informing the employee of the allegation ………………… Ms [SS] has had the recommended antibiotics and a doctor appointment is scheduled for 6 October 2016. There does not appear to have been any contraindications from the delay in filling the script. Coordinator A&R has met with Ms Way to discuss the matter and is closely monitoring her work, behaviour and actions. DSW Ms Carol Patfield has been offered EAPS and is currently temporarily working at another unit whilst the grievance is being reviewed.
2. On the same day, 26 September 2016, Mr Ybarra sent an email to Ms Belfield which contained the following: On Monday 5 September 2016, • Team Leader Ms Sharon Way, was on administration duties, - I asked Ms Way if she saw the script for Ms [SS's] antibiotics, - she stated she had seen it and seen the comment in the communication book which stated that the scripted needed to be filled. • I asked did you fill the script? Ms WAY Stated • she had not, as Ms [SS] was not sick. • Ms Way stated the question to be asked why did the DSW's call the doctor in the first place, if Ms [SS] was not sick, but reported showing behaviours. • I explained to me Way I was not going to debate if it was the appropriate response from the DSW, but I wanted to know Why as Team Leader of valley view, she did not fill the script. • Ms Way replied numerously [SS] was not sick, therefore did not need the scripts, nor was it a priority to fill the script I discussed • with Ms Way had she consider alternative methods to address her concerns that the Ms [SS] did not require the antibiotics. • I cited the example of calling local G.P to concerns of not needing the antibiotics and seeking further advice. • Ms Way stated Ms [SS] was not sick, so did not fill the script, nor did she think of seeking further advice. I expressed to Ms Way, I was deep concern about this non action and asked that did she worry the scripted was not fill until Wednesday 7 September 2016, • because of her influence of non-action, which steered her subordinates to not filled the script. • Ms Way response she was not responsible for their behaviour, nor did she think that she influence their non-action. Rebecca Belfield
3. Ms Belfield no longer works for the Department. During 2016, Ms Belfield was employed by the Department in the role of Manager, Accommodation and Respite, Hunter New England. She was responsible for the leadership and management of 18 group homes, including Valley View Group Home, and three respite services. Mr Ybarra reported to Ms Belfield. In her witness statement, Ms Belfield stated as follows: 12. I first became aware of the matter regarding Ms [SS] when I received a phone call from Disability Support Worker (DSW), Ms Carol Patfield on 7 September 2016. I was advised by Ms Patfield that the on-call doctor attended the group home on Sunday 4 September 2017 (2016) at approximately 19:00, as she and DSW Ms Angela Ford were concerned about Ms [SS's] health. Ms Patfield reported that the doctor prescribed antibiotics and recommended that Ms [SS] see her local doctor for follow-up. I was advised by Ms Patfield that the script had not been filled. She reported that Team Leader Ms Sharon Way had said to her that the script did not need to be filled as Ms [SS] was not sick. I was also advised by Ms Patfield that on 6 September 2017 (2016) when she arrived at work that the script had still not been filled. She advised that there were no notes in the communications book, so she phoned DSW Ms Jenny Hamilton at home. Ms Patfield reported that Ms Hamilton said to her that Team Leader Ms Way told her that the script did not need to be filled as Ms [SS] was not sick. 13. Ms Patfield also informed me that Team Leader, Ms Sharon Way spoke with her about contacting DSW Ms Hamilton at home. Ms Patfield indicated that she was upset about the way she was being treated at the group home, and was crying. I encouraged Ms Patfield to contact Converge, Employee Assistance Program, and asked her to put her concerns in writing. I sent Ms Patfield an email with the Respectful Workplace and Grievance Policy and Procedures… …………………… 18. On 12 October 2016, I spoke with John-Paul Brookes, Manager PCEP who advised that the District needed to consider protective measures. In consultation with Director Disability Hunter New England, Ms Karin North, alternative duties were arranged for Ms Way at the Newcastle office. On 13 October 2017 (2016), I contacted Ms Way to inform her of the alternative work arrangements. During the conversation, Ms Way requested to take approximately 5 months extended leave from 17 October 2016 and agreed to partake in the PCEP process. 19. I first became aware of the issue regarding the use of foam wedges for Mr [SL] in September 2016 when I received a 'grievance' from DSW Ms Angela Ford… Ms Deborah Missingham, Senior Manager New England was asked to review the matter. ………………… 21. From the initial information gathered by Ms Missingham, it became apparent that the matter needed to be referred to PCEP for review and assessment. On 12 October 2016, I spoke with John-Paul Brookes, Manager PCEP about Ms Way using foam wedges to support client, Mr [SL] without relevant assessments and professional recommendations. Mr Brookes requested that the District put the internal review on hold and send the information to PCEP. I am aware that Ms Missingham sent a summary of the initial findings to PCEP, as I was included in the email correspondence…

The appellant's evidence

1. In relation to Allegation 1, the appellant gave evidence that any of the staff at the group home can fax a script to the chemist. It doesn't require a Team Leader to approve it or to specifically undertake that task. The process is that a cover sheet is placed on the script and it is faxed to the chemist. The group home only used one chemist and had an arrangement where staff would ask for a script to be filled and then could pick it up the next day or ask for it to be delivered. It was not uncommon for faxes to be sent when the chemist was closed and for the medication to be collected the following day.
2. The appellant worked night shift on Saturday, 3 September 2016, from 8.00pm until 6.00am the following day. On Monday, 5 September, the appellant was rostered to work from 6.00am to 2.00pm performing administrative tasks. At the commencement of her shift on this day, the appellant read the communication book and noticed that a doctor had come to see SS the previous evening and that there was a prescription to be filled at the chemist. The appellant spoke to SS and asked her if she felt unwell to which she, according to the appellant, replied "I am not sick, I hate f…ing Carol Patfield".
3. Shortly after this, the appellant received a phone call from a Disability Support Worker, who was rostered to work at the group home that day. The appellant was advised that the mother of the worker had suddenly died and she would not be able to work that day or for the rest of the week. As a consequence, the appellant was required to work hands on that day to assist the clients with their morning routines.
4. The next priority for the appellant was to try and fill the absent worker's shifts for the rest of the week, at the same time as trying to do some of her administrative work. According to the appellant, the shift was so busy that she cannot remember even thinking about the prescription after the morning routine. When Ms Patfield arrived for the afternoon shift, the appellant was on the computer still trying to fill shifts. Other than saying hello and goodbye, they did not speak to each other. There was no discussion about the prescription for SS. When the appellant returned to the group home that evening to work the night shift, she had as short discussion with Ms Patfield about her shift and SL's enteral feeding plan. There was no discussion about the prescription for SS.
5. On Tuesday, 6 September, the appellant received a message from Ms Hamilton at approximately 1.40pm stating that Ms Patfield had phoned her at home about the prescription. The appellant arrived at the group home at approximately 9.50pm for her shift and, according to the appellant, had a conversation with Ms Patfield in words to the following effect: I said: "I have received a message from Jenny that you called her at home to ask about filling a script for [SS]." Carol Patfield said: "I only rang Jenny as there wasn't anything recorded about it" I said: "You could have phoned the pharmacy and asked them if you didn't know. Why wasn't the script faxed straight to the pharmacy on the afternoon it was written and a note or coversheet attached asking the pharmacy to fill it and staff would pick it up or request delivery as the unit was so short staffed." Carol Patfield said "I was going to do it but Angela had told me to leave it for the day shift". I said: "You know how busy it is of a morning getting everyone ready and by the time the morning routines are finished half the shift is gone. The day staff are also expected to cook, clean and attend all the appointments etc. It is not acceptable to leave things to the day shift. Also why hadn't you followed it up on Monday afternoon and make a follow up appointment with the GP as the unit was so short staffed with only 1 staff on day shift & Jenny helping with 4 hours overtime." The appellant did not recall if Ms Patfield responded with an answer. The conversation continued with words to the following effect: I said: "Everyone needs to plan ahead, work as a team and not just leave things for someone else to do which seems to happen all the time. I am glad you are not defensive or angry, this wasn't a blame game I just want everyone to know what is required in the future." The appellant and Ms Patfield continued their conversation, discussing strategies for assisting SS.
6. The appellant denied that she ever told any member of staff to not fill the prescription, nor did she make a decision not to fill it. She stated that she was just so run off her feet that it had slipped her mind. She also stated that no one reminded her that the prescription had not been filled or brought it to her attention or discussed it with her.
7. The appellant also stated that she strongly believes that, if a client is prescribed medication, she will make sure that they get it.
8. The appellant accepted that it may have only taken five minutes to fax through the prescription and that, with the benefit of hindsight, she should have gone and faxed the prescription through first thing in the morning or rung the GP and explained the situation. However, they were very short staffed on the unit.
9. In her witness statement, the appellant stated as follows: 60. There was no deliberate intention on my part that the script would not be filled. I had no ulterior motive. I hadn't formed the opinion or the intent that the script would not be filled. I would never intentionally put a client at risk. I had forgotten about it and failed to leave a message in the unit communication book & diary requesting it be faxed by the afternoon shift. There were a few things I forgot to document in the communication book that day, including that Sheridan was off for the remainder of the week and which shifts I had filled or which shifts still needed to be filled. 61. I accept that as Team Leader that responsibility ultimately lies with me in ensuring that the script was filled. …………………….. 63. On 26 September 2016 at about 1.50pm Carlos Ybarra attended the group home. At the time I was on the computer finishing up something before my shift finished at 2pm. Carlos Ybarra did not advise me beforehand that he would be visiting the unit or that his visit was a supervised visit to discuss a complaint. Neither of us took notes during the meeting. In the meeting we had a conversation with words said to the following effect: I said: "Hi Carlos - what can I do for you today?" Carlos Ybara said: "I am following up about the script for [SS] from 4th September, and why there was a delay in it being filled." I said: "I saw the message and script when I arrived for work that morning. I checked on [SS] and she told me she wasn't sick and hated Carol Patfield. [SS] didn't appear at all unwell or not herself. When I read the shift report it was difficult to understand why the staff on shift thought [SS] was unwell and why it seemed urgent to call a doctor and how this would benefit [SS], especially as they didn't even bothered faxing it to chemist so it could be administered as soon as possible. The information contained in the shift report looked consistent with [SS's] behaviour." Carlos Ybara said: "Why didn't you fill the script?" I said: "I had to work hands on for half my shift to fill in for another member of staff, and [SS] had reassured me that she wasn't sick so I didn't feel it was an urgent priority for me to do that particular task right at that moment and that it could be done a bit later." Carlos Ybara said: "If you felt [SS] wasn't sick and you weren't going to fill the script why didn't you contact her GP and talk to them about it." I said: "From my observations of [SS] that morning she didn't appear sick or unwell and that I hadn't considered contacting her GP because there was no intention that the script wasn't going to be filled, it just wasn't a priority for the (me) at the time and I forgot about it." Carlos Ybara said: "Were you aware that the script wasn't filled for several days." I said: "After I received a message from Jenny Hamilton on the Tuesday about Carol contacting her at home I spoke to Carol on the Tuesday night and thought it had been done on the Tuesday."
10. Under cross-examination, Mr Ybarra confirmed the accuracy of the appellant's account of their discussion on 26 September 2016, as set out above, apart from the last passage attributed to the appellant about her thinking that the prescription had been filled on the Tuesday, which Mr Ybarra claimed he could not recall.
11. In relation to Allegation 2, the appellant gave evidence that, when she returned from six weeks' leave in late January/early February 2016, she was made aware of a deterioration in SL's positioning at night.
12. When SL moved into the group home, his Departmental Occupational Therapist developed a positioning plan to maintain his position as upright as possible to minimise the risks of aspiration associated with his severe gastro-oesophageal reflux disease, as well as stopping him from positioning himself in a way that restricted his breathing due to his scoliosis. The plan involved a pillow being placed under his head, that he be rolled slightly to the left and a pillow placed down his right side and then rolled again to the right and a pillow placed down his left side and a pillow placed under his legs, close to, but not under, his bottom.
13. By February 2016, SL had put on weight. The appellant observed that the pillows, used to maintain his position, had moved away from his body quickly and that he needed to be repositioned more frequently. On a number of occasions when the appellant checked on SL after arriving for work, she found the pillow from the right side of his body on, or close to, his face. SL did not have the strength or ability to move objects away from his face if necessary.
14. In or around November/December 2015, SL's stoma site, where his PEG tube was inserted, started leaking formula and medication. In discussion with an Ageing, Disability and Home Care ("ADHC") Clinical Nurse Consultant, Louise Hedges, and a Gastronomy Nurse from the John Hunter Hospital, who had visited SL at the group home on several occasions, the shared consensus was that SL's scoliosis and the reduced effectiveness of the positioning system were most likely the reasons for the leakage and that a positioning review was required.
15. The appellant gave evidence that she discussed and documented her concerns and observations when she returned from leave with others, including staff, SL's Speech Pathologist, his Dietician, the Clinical Nurse Consultant, the NDIS transition support and SL's mother. SL's mother told the appellant that she had used wedges at home with success. Ms Hedges stated that wedges had to be better than nothing.
16. The appellant recalled discussing SL's positioning problems with Helen Duggan, Business Support Officer, NDIS transition team, and the need for an Occupational Therapist to review his plan. The appellant was told that, once a person has a NDIS plan, as was the case for SL, there was nothing that could be done other than wait for an NDIS funded therapist to be appointed. The appellant also claimed that she was told that, during this period, a private Occupational Therapist could not be engaged.
17. The appellant thought that the gap in services would be short. SL had his NDIS planning meeting scheduled for the first week of February 2016. There was a follow up handover meeting with SL's mother and Ms Duggan on 23 February. The appellant understood that services approved under a person's NDIS plan were planned to come into place very soon thereafter.
18. The appellant was aware that it was not possible to arrange for a review of SL's plan as he didn't have a current ADHC Occupational Therapist as he was waiting for an NDIS Occupational Therapist. The appellant had been informed by SL's therapists in October or November 2015, that neither Maitland nor Newcastle ADHC offices would have Occupational Therapists or Physiotherapists and future services would be provided under NDIS funding.
19. The appellant chose not to ask her manager to submit a service request for a therapist to be allocated to review the plan, as she was aware that there was no ADHC Occupational Therapist or Physiotherapist at the Maitland or Newcastle offices.
20. After considering all these matters, the appellant decided to trial the use of wedges to support SL rather than the pillows, until an Occupational Therapist appointed with NDIS funding could complete an assessment and positioning plan. The appellant's overriding concern was that SL's condition was such that she felt, if something wasn't put in place in the interim, he was at very high risk of a premature and avoidable death due to aspiration and/or suffocation.
21. According to the appellant, the feedback from staff regarding the wedges was that SL could be positioned more effectively and didn't require repositioning as frequently. He slept better and seemed more content. The appellant claimed that Ms Ford was especially positive in her feedback and produced a note in the communication book made by Ms Ford which stated "Foam seems to be a positive for support for [SL]. A++++".
22. Ms Ford did not complain to the appellant, or raise any issue of concern with the appellant, about the use of the wedges, before she complained to Mr Ybarra in June 2016. At that time, the appellant was off work on workers compensation. When the appellant returned to work at the end of June 2016, she was told by Ms Hamilton that Ms Ford had complained about the wedges and that Mr Ybarra had instructed staff that the wedges were not to be used.
23. In reply to paragraphs 25 to 28 of the witness statement of Ms Brunner (see paragraph 33 above), the appellant gave the following evidence: 80. … I deeply regret not immediately faxing the prescription to the pharmacy or at least placing it in a prominent position to alert me to action it as soon as the morning routine was completed, and I am grateful that [SS] did not suffer any harm due to my lack of diligence. At the time I decided to try wedges instead of the pillows that had been recommended for [SL's] positioning I felt I had consulted with the key people associated with his welfare and his transition to the National Disability Insurance Scheme (NDIS). Based on the information and advice I had been given at that time and the observations of his distress I believed he was more at risk of harm by not doing anything than doing something until his new Occupational Therapist had been allocated.
24. In reply to paragraph 13 of the witness statement of Ms North (see paragraph 36 above), the appellant gave the following evidence: 78. I refer to paragraph 13 and admit that I said the words "I care about what happens to these clients and if I was in the same situation I would do the same again." I had just been told by Karin North that my role as team leader at Valley View Group Home had been filled and that I would not be able to return to that role. This was deeply distressing. What I meant by my words is that if I had to manage a situation where a client was at risk and I was unable to access the support the person required immediately I would manage the risk as best I could until they could access the support they needed. I am terrified of becoming like so many other managers or disability support workers I have seen who just don't care, the people we support deserve so much more. The wording I used to express myself was a poor choice but at the time I was very distressed and barely able to speak clearly let alone think about the wording I used and how this could be misinterpreted.
25. In relation to the impact on her of the decision to demote her, the appellant gave the following evidence: 82. The decision to demote me has had several impacts. Firstly, there is a financial impact. As a Team Leader my salary was $92,062 pa. The salary for a Disability Support Worker Year 10 is $62,847 pa. This is a reduction of $29,179 per annum. This also reduces my superannuation, which at the age of 52 is a matter of significant concern. 83. The demotion has also had a psychological impact on my health and well-being. I have been on leave from the Department as a consequence of the decision ever since it was given to me. I have been under the care of Dr. Mansel Ismay who has given an opinion that I suffer from ongoing anxiety & depression that has been exacerbated by the bullying & harassment I have experienced over the past 12 to 14 months and resulted in my demotion… 84. I have spent more than half my life employed by ADHC, caring and supporting people with disability was not a career choice, but quickly became my passion and I have never thought about doing anything else. I have always been a conscientious worker and take pride in undertaking every aspect of my role to the best of my ability. I have worked with and supported people who require minimal support to those who require considerable support, and there has not been a day where I haven't learnt something new or been inspired. What I love and enjoy most about working with people with disability is their resilience even with all the challenges they face every day and their honesty, their appreciation for even the smallest amount of all the things we all take for granted like, choices, dignity, respect, appreciation, being valued, acknowledged, shown kindness, empathy, understanding, encouragement, listened to and much more. I highly valued my role of Team Leader especially for all the challenges and learning opportunities that are encountered on a daily basis and well above that of a disability support worker. Being a Team Leader gives me an opportunity to influence positive outcomes for the people in our care, keeps me engaged and motivated, it is the reason I go to work every day.
26. In addition, there were tendered into evidence in support of the appellant, witness statements in the nature of character references from Sheridan Uhrig, a Disability Support Worker who has worked with the appellant at the Valley View Group Home for approximately three years, Marcia Ehlefeldt, a former colleague of the appellant who worked with her at a respite unit for approximately ten years in the early 2000's, and SL's mother who stated that she had asked the appellant to use the wedges for SL and that she used them at home.

Submissions of the respondent

1. In relation to Allegation 1, the respondent submits that the evidence before the Commission establishes that the appellant had formed the view, on the morning of Monday, 5 September 2016, that SS was not sick and the prescription for antibiotics which the doctor had left the previous evening should not be sent to the pharmacy. This was a view she shared with Ms Hamilton and Ms Patfield.
2. In the alternative, the respondent submits that, even if the appellant formed the view that the filling of the prescription for SS was not an urgent matter and then, subsequently, forgot to have it sent to the pharmacy, such conduct was dangerous. The respondent put the proposition these terms: "If it was consciously done it was reckless behaviour, and if she did in fact forget, that is still grossly negligent".
3. The respondent also submits that the appellant's statement that she thought the prescription had been filled on Tuesday, 6 September 2016, should be rejected.
4. In its written submissions, the respondent put the following: 63. Dealing first with the medication issue, the appellant concedes she took no action to have the prescription for Ms [SS] filled despite being aware of the script from Monday 5th September. Any suggestion that the appellant might have gotten around to filling the script should be treated with some circumspection. 64. The script was only filled when the Area Co-ordinator intervened and directed that it be filled. There is no evidence to support that the appellant would have or intended to take any action to have the script filled. 65. The respondent submits that the better view of the evidence is that the appellant formed a view that the script should not be filled and communicated that view to Ms Hamilton and Ms Patfield. The Commission has direct evidence of the conversations that took place between Ms Patfield and the appellant on 5th and 6th September as well as the unchallenged evidence of Ms Patfield of her conversation with Ms Hamilton on 6th September. 66. When one looks at a failure to fill a script for antibiotics for a resident with a diagnosis of a possible UTI, the most logical and believable explanation for the failure to fill the script on Monday 5th September and Tuesday 6th September is that someone, being the appellant, formed a view that it should not be filled. That is far more believable than the suggestion that it was forgotten about due to the appellant being too busy. The appellant's answers during the interview with Ms Thane lend considerable support to that proposition. 67. In any event, as the senior person with leadership and supervisory responsibilities at the group home, the obligation to ensure that the respondent's duty of care to the resident in question was discharged, lay with the appellant. 68. A qualified medical professional had provided a script for antibiotics for a suspected urinary tract infection. It was not the place of the appellant to decide that she would not fill that script because she did not agree with that diagnosis. 69. As stated by Ms Brunner and Ms North, they have no issue with a Team Leader asking questions about the appropriateness of treatment that is proposed for a resident if it leads to a better outcome. That however does not allow for the Team Leader to make arbitrary decisions for which they have no qualification. The dangers for such behaviours or conduct to be allowed are so obvious as to not require further explanation. 70. The forming of a view, contrary to medical opinion, that a resident was not sick and any proposed treatment could be given a low priority, is dangerous, is contrary to the appellant's obligations as a Team Leader, and fails to meet the core requirements of carrying out the respondent's obligations to the resident's in a group home setting. The failure to act promptly to ensure the script was filled was serious misconduct for someone in a leadership position. 71. This is only amplified if the Commission accepts, as it should, that the appellant actually came to a view that the script should not be filled. The evidence supporting that finding is set out above… The proposition of the appellant that someone else could have filled the script is utterly disingenuous in light of that evidence. 72. Even if the appellant as Team Leader, had not let it be known that she didn't want the script filled, it is the antithesis of leadership to point the finger at her subordinates and say 'they should have done it.' In fact that only underlines the unsuitability of the appellant to remain in a Team Leader role. It is also grossly negligent to fail to act promptly to have the script filled and the antibiotics provided.
5. In relation to Allegation 2, the respondent submits that the approach of the appellant was potentially very dangerous for SL. The respondent relies upon the evidence of Ms Belfield and Ms North as to the availability of professional occupational therapy assistance to SL, had the appellant asked for it.
6. In its written submissions, the respondent put the following: 73. The seriousness of this issue can be seen in the personal characteristics of [SL]. He is a young man with profound and complicated medical issues which require dedicated professional attention. 74. The appellant decided, without reference to an occupational therapist, to use wedges to help offer Mr [SL] support when he was sleeping. 75. It is the appellant's case that she was 'aware' that there were no occupational therapists still employed by the respondent in the Hunter and Maitland area, and that, as at February 2016, it may be some time before the NDIS system allowed for the appointment of an occupational therapist that would assist. 76. What she failed to do was ask anyone in authority whether there might be a way to access an occupational therapist forthwith through the Department. The clear evidence of Pam Brunner, Karin North and Rebecca Belfield, is that that support was available and would have been available had the appellant asked about it. 77. Inexplicably, and notwithstanding what should have been obvious dangers to Mr [SL] (as to which see the statement of Ms Belfield), the appellant went straight ahead and used wedges without following the relevant policies or procedures. She also failed to show the most basic problem solving skills in failing to ask questions within the organisation about the availability of services. 78. The fact that the appellant might have formed a view or genuinely believed she was doing the right thing is really not relevant. From the respondent's position of upholding its obligations to the resident's and their families, proper professional assistance must be sought before utilising a new system of treatment or care like this one. 79. For a person who has been with the Department for over 25 years to behave in a manner so blithely unaware of relevant policies and procedures or even to be asking herself the right questions suggests a more substantial problem than simply ignorance. 80. Again, it is inconsistent with the obligations of the department and a Team Leader (as it would be with a DSW) to do something like this without seeking management approval or assistance.
7. In response to a question raised by the Commission, the respondent provided a supplementary written submission in which it was stated that the appellant had been on authorised accrued extended leave followed by accrued recreation leave between 17 October 2016 and 7 July 2017 inclusive. The appellant returned to work as a Disability Support Worker Year 10 on 10 July 2017.
8. The date of effect of the demotion of the appellant was 24 March 2017. Up until that date, the appellant had been paid at the rate of Team Leader and thereafter at the rate for a Disability Support Worker Year 10.
9. The respondent submitted that the question of whether, in the current circumstances, the appellant was entitled to be paid, in relation to her accrued extended and recreation leave, at the Team Leader rate from 24 March 2017 onwards, is not without difficulty. Nevertheless, the respondent has formed the view, on a without prejudice basis, that the appropriate course in the circumstances is for the appellant to be paid at the Team Leader rate whilst she was on extended leave and recreation leave taken between 24 March and 7 July 2017.
10. From the date of the appellant's return to work, 10 July 2017, the appellant has been paid at the rate for a Disability Support Worker Year 10, and that will continue, subject to the decision of this Commission.

Submissions of the appellant

1. In relation to Allegation 1, the submissions put on behalf of the appellant canvassed the competing versions of what occurred given by the appellant and by Ms Patfield. It was submitted that the Commission should accept the appellant's version of events surrounding this allegation. The following was submitted on behalf of the appellant: 49 It is out of character for Sharon Way to delay medical treatment being administered to client following a doctor's assessment and recommendation… 50 Sharon Way has never been in a situation where a disability support worker who called a doctor to attend a client had not then followed up the script to ensure that it was faxed to the chemist and any follow up appointments were made as required… This evidence was not challenged. 51 Sharon Way accepts that as Team Leader that responsibility ultimately lies with her in ensuring that the script was filled or directing that a DSW fill the script…
2. Ultimately, it was submitted as follows: 67 The Commission should accept that Sharon Way did not take any positive step to delay medical treatment being administered to [SS]. She failed to ensure the script was filled. This failing should, as Carlos Ybarra characterised it, be considered by the Commission as a minor incident with minor or no risk. 68 The circumstances of the delay in the filling of the script should be seen as an unfortunate series of events whereby the unit was unexpectedly very busy due to a staff member's mother dying suddenly; the distress to staff of that news; [SS] did not complain that she was unwell in circumstances that [SS] is able to verbally communication (communicate) and Sharon Way had a good rapport with her; and the DSWs within the unit failed to fax the script to the chemist - Jenny Hamilton acknowledges that she should have faxed it, Carol Patfield accepts that she could have sent it. Karin North stated that it was best practice that the DSW you (who) called the doctor would send the script to the chemist.
3. In relation to Allegation 2, there is no dispute about the facts of this matter. In relation to this allegation, it was submitted that the appellant fully accepts that she put in place the use of wedges to support client, SL, without a relevant assessment being completed and approved by a relevant professional. However, the submission then went on to canvass the range of factors put forward in the evidence of the appellant in mitigation.
4. Ultimately, it was submitted that the Commission should accept that the appellant was trying her best to assist a client of the Department in circumstances where there was a gap in services.
5. On the issue of penalty, the following was submitted on behalf the appellant: 73 On a fair and reasonable reading of the evidence the Commission should find that the protection of the public service and the public does not require or warrant Sharon Way being demoted from her role as a team leader. Indeed the penalty imposed by the Department is not the correct or preferable one. 74 The Commission should have regard to the following factors in upholding the appeal: (a) Sharon Way's unblemished employment record of 27 years of service; (b) Sharon Way's good character; (c) The fact that the conduct was out of character for an otherwise diligent team leader; (d) The unusual circumstances of each incident that are set out above; (e) The independent investigator found that Sharon Way acted in good faith and did her best under trying conditions. Kathy Thane did not consider that any further action should be taken against Sharon Way; (f) Sharon Way appreciates the obligations of a team leader and the Department should have confidence that she would act appropriately in the future…; (g) When PCEP received the report of Kathy Thane, PCEP prepared a briefing note that did not consider that findings of misconduct should be made against Sharon Way. (h) [SL's] mother was strongly supportive of the use of the wedges, it was her son that the system was there to protect. (i) There is no evidence that the Department ever informed [SS's] guardian that medication was delayed.
6. It was submitted that the Commission should uphold the appeal, quash the decision to reduce the appellant's classification/grade and order that the appellant be returned to the classification/grade of Team Leader.

The legislative framework

1. The relevant provisions of Chapter 2, Part 7 of the Act are set out below:

97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: ………………. (b) a decision to reduce the rank, classification, position, grade or pay of the employee, ………………

98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. ………………..

100C Decisions with respect to appeals (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. …………………….

100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.

1. The hearing of an appeal under the provisions of Chapter 2, Part 7 of the Act is a hearing de novo to be determined upon the evidence and submissions presented by the parties before the Commission (Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 at [184(9)]).
2. It should also be noted that, whilst subsection 100G(3) makes it clear that the appellant bears the onus of proving any ground on which the appellant relies, once an appellant places before the Commission evidence which calls into question the factual basis upon which the respondent based the disciplinary decision, the evidentiary burden of proving those facts may shift to the respondent (Bigg and Another v New South Wales Police Service [1998] 80 IR 434 at 455).
3. The jurisdiction which the Commission exercises in appeals such as the present one is protective, rather than punitive, in nature (Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] 74 NSWLR 523 at [20]-[21], [83]; Schoeman at [174]). In the present case it is the public and, in particular, disabled residents of group homes operated by the Department, who are to be protected in the exercise of the Commission's jurisdiction.

Disposition of the appeal

1. In relation to Allegation 1, it is the primary proposition of the respondent that the appellant, on the morning of Monday, 5 September 2016, formed the view that SS was not unwell and did not require the antibiotics which had been prescribed for her by a doctor the previous evening. It is further put that the appellant took active steps to ensure that the prescription was not filled. The evidence upon which the respondent relies in support of this proposition is set out and discussed below: (a) The evidence of Ms Patfield of her conversation with the appellant at about 9.30 pm on Monday, 5 September 2016, recorded at paragraphs 8 and 9 of Ms Patfield's witness statement (see paragraph 37 above). The appellant denies that this conversation took place. (b) The evidence of Ms Patfield that on Tuesday, 6 September 2016, she was told by Ms Hamilton that the appellant had said that the script was not being filled (Patfield witness statement, paragraph 10; see paragraph 37 above). The appellant attacks the credit of Ms Patfield on the basis that she had complained to the investigator, Ms Thane, that the appellant had put in false complaints about her in the past. Ms Thane, herself, at paragraph 6.28 of her report, expressed reservations about Ms Patfield's credibility (see paragraph 26 above). (c) Mr Ybarra's evidence that that he had rung the group home and was told by Ms Hamilton that the appellant had told the team not to fill the script due to [SS] not being sick. In its written submissions, the respondent stated that this call occurred on Wednesday, 7 September 2016. However, in the Client Incident Report form completed by Mr Ybarra, the date stated by him as to when he was informed that the "charted antibiotic had not been filled, as it was felt by various group home staff members resident [SS] was not sick" was 6 rather than 7 September (see paragraph 42 above). The respondent invites the Commission to draw a Jones v Dunkel inference against the appellant due to the failure to call Ms Hamilton as a witness. However, such an inference could just as easily be drawn against the respondent. The respondent relies upon what Mr Ybarra claimed was said to him over the phone by Ms Hamilton. However, in Ms Hamilton's interview with Ms Thane, the following exchange is recorded: KT: Did, Sharon tell you not to fill it? JH: No. No. KT: No. So it was just - did you discuss the matter with Sharon at all? JH: I did. I said to her I - you know, maybe we should try and get a doctor's appointment and whatever - - - KT: Hmm. JH: - - - but at no point did she say do not fill it. Given that Ms Hamilton was not called as a witness, it is difficult to place much weight on what she is alleged to have said to Mr Ybarra or is recorded to have said to Ms Thane. However, I do not draw an adverse inference against the appellant because Ms Hamilton was not called as a witness by the appellant. (d) Ms Patfield's evidence of the conversation she claims to have had with the appellant on the evening of Tuesday 6 September 2016 (Patfield witness statement, paragraphs 12-13; see paragraph 37 above). In its written submissions, the respondent refers to "the evening of Tuesday 5th September". However, it appears that this is intended to be a reference to Tuesday, 6 September 2016. The appellant has provided a completely different version of this conversation (see paragraph 50 above). (e) Ms Patfield's claim that, after this conversation, she felt so unhappy that she rang Ms Belfield the following day (Patfield witness statement, paragraph 14; see paragraph 37 above; Belfield witness statement, paragraphs 12-13; see paragraph 45 above). (f) An email from Mr Ybarra to Ms Belfield of 26 September 2016, to which was attached the Allegation Notification Form to PCEP which Mr Ybarra prepared that day (see paragraph 44 above), in which Mr Ybarra refers to a discussion that he had with the appellant on that day during which it is alleged that: Ms Way replied numerously [SS] was not sick, therefore did not need the scripts, nor was it a priority to fill the script ………………….. Ms Way stated Ms [SS] was not sick, so did not fill the script, nor did she think of seeking further advice. It is noted that the appellant provided a different version of this discussion (see paragraph 54 above). (g) An email from Ms Missingham of 14 October 2016, to Ms Belfield and Mr Brookes of PCEP in which Ms Missingham stated as follows: • Team Leader Sharon Way was on duty the morning after the after hours Dr had attended the unit. • She admits she knew the prescription was there but as the client looked healthy and had told her she was not sick, she told me she made no attempt to fill the script or make the appointment. • She actually said she didn't feel it was her "job" to do it. • While there is no documentation that I have seen that indicates she told staff not to fill it, there is also no evidence over the next couple of days until it was filled and the appointment made at the instruction of the Co-ordinator, that she did anything to ensure these things happened. Ms Missingham was not called as a witness and the appellant was not questioned about the contents of this email. (h) The following remarks made by the appellant during her interview with Ms Thane on 21 November 2016, which, according to the respondent, are supportive of the proposition that, notwithstanding the opinion of a medical practitioner to the contrary, the appellant had formed a view that [SS] did not require medication, and she did not think it was necessary to action the script being sent to the pharmacy: • '…after observing & talking to [SS] on Monday 5th of September 2016 she did not appear to me to be unwell…' This comment was immediately followed by 'Even though I did not feel [SS] was unwell it did not mean that the script was not going to be filled.' • 'I don't know why they called the Doctor' The actual comment, as recorded in the transcript of the interview, is 'I don't understand why they called a doctor'. This comment was made immediately after the appellant stated that, when she looked at the shift report, it said that SS had been 'a bit teary, she was verbally abusing the staff, was the full context. That's not unusual behaviour for [SS].' • 'So I truly don't understand why they called a Doctor' This comment was followed by 'Her behaviour was nothing that's not normal behaviour for [SS] when Carol … Patfield was on duty. She hates Carol, and unfortunately for [SS] she works just about every afternoon.' • '[SS] said she wasn't sick, so… I don't know why they called the Doctor' This comment was followed by 'so… did they (Ms Patfield and Ms Ford) give any indication as to why they thought it was beneficial for her to see - for a doctor, who didn't know her, to come on a Sunday afternoon?' • 'If [SS] had have been unwell, I would have faxed it straight to the pharmacy' This comment was preceded by '[SS] told me she wasn't sick, my observations of her were that she didn't appear unwell, I think I felt relieved for her and faxing the script didn't require my immediate attention and could be faxed sometime later that day.' • 'She wasn't unwell, so it wasn't a priority for me' • '… The reason is… I didn't feel she was unwell' This comment was preceded by 'And, you know, like I said, I was flat-strapped that day… and I was annoyed that they hadn't done their job when they could have done it, pure and simple, and, yep, okay, I could have but I didn't, and like I said…' • 'I did actually fax a referral for another client that day… that day or that night… but their needs were higher than those of [SS] that day... if [SS] was seriously ill I would have known because she would have either told me or she would have said she was sick or she would have looked sick, right, she didn't look sick' This comment was followed by 'And, yep, no, I didn't form the opinion that it wasn't going to be done, it just was not a priority for me that day…' • 'Carol (Patfield) does it all the time (calls doctors)… or ambulances, and the ambulances comes and assesses the client and says there's nothing wrong… It happens all the time'
2. The above comments are equally consistent with the proposition put by the appellant to the effect that, on the morning of 5 September 2016, in her observation SS was not unwell and the filling of the antibiotic prescription was not seen as a priority by the appellant, given the other demands that were placed on her at that time. I do not accept the submission that these comments necessarily support the proposition that the appellant had formed the view that SS did not need the prescribed medication and then directed the staff not to fill the prescription.
3. Of the witnesses who gave evidence in these proceedings, only Ms Patfield stated that she had been told by the appellant that the prescription for SS was not to be filled. The appellant denied that she said this and maintained that she had observed SS not to be unwell on the morning of 5 September 2016 and then simply forgot about the prescription. On the basis of this conflicting evidence, and adopting the approach of Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), I am unable to be comfortably satisfied to the requisite standard that the appellant directed Ms Patfield, or any other member of staff, that the prescription for SS was not to be filled.
4. In the Allegation Notification Form which Mr Ybarra completed on 26 September 2016, and in the email he sent on that day to Ms Belfield (see paragraph 43 and 44 above), he referred to the meeting he had on that day with the appellant. It appears from the contents of these documents that Mr Ybarra was suggesting that the appellant had told him that she had made a conscious decision that the prescription for SS would not be filled. It is inherently unlikely that the appellant would make such a statement, some three weeks after the event, to her immediate supervisor whom she understood to be investigating the incident.
5. Under cross-examination, Mr Ybarra gave the following evidence about his conversation with the appellant on 26 September 2016: Q. And you started the conversation by saying, "I'm following up about the script for [SS]"? A. I did. Q. And why there was a delay in it being filled? A. I did. Q. And she tells you that she saw the message about the script when she arrived? A. She told me she saw the script and the message, yes. Q. And that she then went to check on [SS]? A. That's correct. Q. And that [SS] had told her that she wasn't sick and hated Carol Patfield? A. That's correct, yes. Q. And that [SS] didn't appear at all unwell or not herself to Sharon Way? A. That's correct. Q. And that Sharon thought it was difficult to understand why the shift thought she was unwell enough to call a doctor? A. She expressed that, yes. Q. And then expressed a view that she didn't understand why it was urgent enough to call the doctor, but not so important enough for them to send the fax to the chemist. She said that? A. She expressed that, yes. Q. Because that would enable the medication to be administered as soon as possible? A. That's correct. Q. And you pressed on and asked about, "Why you didn't fill the script"? A. Yes, after - yes, after she expressed those view, yes. Q. And she told you that she had had to work hands-on for half a shift to fill out for another member of staff? A. She expressed that she had to work hands-on, however, she - before she - yes, she expressed that she had to work hands-on. Q. And she expressed that [SS] had reassured Sharon Way that she was not sick? A. She did express that view, yes. Q. And so it didn't feel like an urgent priority to Sharon Way to have the script filled? A. That's correct, she expressed that view. Q. And you then expressed the view that, "Well, if you felt [SS] wasn't sick, why didn't you contact her GP and talk to them"? A. That's correct. Q. And Sharon Way says that of her observations of [SS] that morning that [SS] didn't appear sick or unwell? A. That's correct, she expressed that view. Q. And she hadn't considered contacting her GP? A. She expressed, yes, that view. Q. And she told you that she did that because she didn't have the intention of not filling the script? A. Sorry, say that again? Q. And she hadn't considered contacting her GP because there was no intention on her part not to have the script filled? A. That's correct.
6. This statement, which Mr Ybarra attributed to the appellant, to the effect that "there was no intention on her part not to have the script filled", seems to be entirely inconsistent with the proposition that the appellant told Mr Ybarra, or anybody else, that she had decided that the prescription was not to be filled.
7. The respondent submitted as follows: Even if it is accepted that the appellant formed the view that it was a non-urgent matter and that the appellant 'forgot', she was on site on the Monday, Monday night and Tuesday night for three 8 hour shifts. To forget to send the script, have it filled, and then obtain and administer the medication forthwith was dangerous. If it was consciously done it was reckless behaviour, and if she did in fact forget, that is still grossly negligent.
8. I fully concur with the second part of this submission to the effect that, by failing to ensure that the prescription for antibiotics for SS was faxed to the pharmacy, filled, retrieved and the medication administered to SS on Monday, 5 September 2016, the appellant was grossly negligent.
9. In relation to Allegation 2, the appellant admits this allegation but claims that she put in place the system of foam wedges for the benefit of SL because the previous positioning system using pillows and towels was failing. The appellant maintains that she was of the belief that professional assistance was not available at that time, being the early part of 2016.
10. The respondent strongly refutes this and asserts that professional assistance would have been provided had the appellant made the appropriate request, as was her responsibility as Team Leader.
11. I fully accept that putting in place a positioning system for a client with the type of disabilities and needs which SL has, without engaging the appropriate professional therapists in that process, could have disastrous consequences for the client. However, against this consideration I note that the use of the foam wedges for SL was brought to the attention of management, in the person of Mr Ybarra, in June 2016 when, on the instruction of Mr Ybarra, the practice ceased. No disciplinary action was taken against the appellant in relation to this matter until after Ms Ford lodged a formal grievance on 14 September 2016.
12. The appellant has admitted this allegation but in terms of its disciplinary consequences for her, I find myself in agreement with the views expressed by Ms Thane at paragraph 6.50 of her report which I repeat below: 6.50 At the end of the day, the allegation is technically made out, but when all the circumstances are taken into account, the investigator does not consider that Ms Way's conduct constitutes misconduct. Further, the investigator finds that Ms Way acted in good faith and did her best under the uncertain environment created with the implementation of the NDIS. Her conduct cannot be rightly categorised as neglect or ill-treatment of a client within the meaning of the Ombudsman's Act.

Penalty

1. With respect to Allegation 1, I have formed the view that the misconduct of the appellant arises as a result of her negligence rather than by way of conscious determination that the prescribed medication would be withheld from SS. Nevertheless, the misconduct is serious and warrants a significant penalty. With respect to Allegation 2, is my opinion that no additional penalty is warranted.
2. The proven misconduct of the appellant is serious. The failure to ensure that a resident of one of the Department's group homes receives prescribed medication in a timely way is a serious omission. It warrants a significant penalty. However, against this consideration there are, in this case, significant mitigating factors which include the following: (a) On the morning of 5 September 2016, the appellant, as Team Leader, was under significant pressure due to the inability of a staff member to attend for work following the sudden death of her mother. (b) The appellant did not deliberately act in a manner which was contrary to the interests of the residents in her care. (c) The appellant has had approximately 27 years' service with the Department and has not previously been the subject of disciplinary action. (d) I have no doubt that the appellant has learned a very painful but valuable lesson from the experience she has been through following the events of last year and will, in the future, redouble her efforts to ensure that she conducts herself in accordance with her employer's policies, procedures and expectations.
3. Taking into account all of the circumstances, I have determined that the penalty of an indefinite reduction in the appellant's classification and grade to Disability Support Worker Year 10 is too harsh and not necessary for the protection of the public and, in particular, the protection of the disabled residents of group homes operated by the Department. The penalty which I believe is appropriate and which I propose to impose upon the appellant, in lieu of the penalty determined by respondent, is that she be demoted from the classification of Team Leader to the classification of Disability Support Worker Year 10, but only for a period of six months, after which the appellant is to be restored to the classification and rate of pay of Team Leader. I regard this outcome as fair to the appellant and, at the same time, consistent with the protective nature of the jurisdiction which the Commission is charged to exercise.
4. I propose to make orders to give effect to this determination.
5. Given that the respondent has proposed that the appellant be paid at the Team Leader rate for the period when she was on accrued extended or recreation leave up until 7 July 2017, the reduction in the appellant's rate of pay to that of Disability Support Worker Year 10 will only operate from when she returned to work on 10 July 2017 up until the end of the six month period of the demotion ending on 22 September 2017. I believe that this represents a significant financial penalty to the appellant which is proportionate to the seriousness of her misconduct. I also note that the appellant has used up a significant amount of accrued extended and recreation leave which, in all likelihood, she would not have taken, were it not for the events which led to her demotion and which have been the subject of this appeal. This, in itself, constitutes a significant penalty.
6. It is not intended by the orders which I propose to now make, that the appellant be returned to the Valley View Group Home. Where the Department proposes to utilise the appellant's services in her role as Team Leader is a matter for discussion between the parties and, ultimately, for determination by the Department.

Orders

1. The Commission makes the following orders:
2. The appeal of Sharon Way in this matter is allowed.
3. The decision of Pamela Brunner, as delegated decision maker for the respondent, that the appellant's classification and grade be reduced to that of Disability Support Worker Year 10 with effect from 24 March 2017 is varied to the extent that the appellant's classification and grade is to be restored to that of Team Leader with effect from 22 September 2017.
4. These orders take effect from today's date, 22 September 2017. John Murphy Commissioner

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: 22 September 2017