Daniels v Queensland Nursing Homes Pty Ltd [1995] HREOCA 2 (24 January 1995)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975(Cth)

No. H94\009

Between:

ROSE DANIELS

Complainant

and

QUEENSLAND NURSING HOMES PTY LTD

Respondent

Reasons for Decision

of

P.M. Wolfe

Inquiry Commissioner

Hearing: Brisbane

Date: 18, 19, 26, 28 April 1994

12, 13 May 1994

Solicitors for the Complainant: June Anstee & Associates

Solicitors for the Respondent: S.R and C.B Jones

INTRODUCTION

The complainant was employed as an assistant in nursing by the respondent at a nursing home operated by it until she was dismissed in December 1991. Her complaint was lodged with the Commission on 9 January 1992. On 15 December 1993 the matter was referred for inquiry pursuant to s. 24E(1) of the Racial Discrimination Act 1975.

The complainant contends she was subject to unlawful discrimination, as she alleges:

(a) that where the employment of a staff member was to be terminated, Australian staff, unlike Asian staff, were given the option of resigning rather than being dismissed and there was no effort made to investigate the allegations made against her when she was dismissed;

(b) that the services of white staff were not terminated when there were incidents of mistakes in managing patients involving white staff;

(c) the director of nursing at the nursing home, spoke badly to Asian staff, compared with how she spoke to Australian staff.

However the respondent denied those allegations and alleged that the complainant's services were terminated for repeated violation of correct work practices and procedures relating to the care of patients, and that the complainant, prior to her services being terminated, had received warnings and had been counselled in respect thereof. The respondent relies on three incidents involving Nurse Daniels and three residents of the nursing home to whom I shall refer as Patient R, Patient G and Patient F. It was common ground that the incident relating to Patient R took place on 31 October 1991, that an incident concerning Patient G took place on 1 December 1991, and the incident with Patient F on 10 December 1991, the day upon which her services were terminated effective from 16 December.

Soon after she was dismissed the Queensland Nurses Union approached the Marooma Nursing Home requesting the complainant be given the opportunity to resign, but this was refused. The respondent denied that race was a contributing factor in the complainant's dismissal, and contended that as a result of those three incidents, as the respondent's staff described them as occurring, dismissal was warranted.

The complaint concerns the following provisions of the Racial Discrimination Act 1975:

9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

and

15. (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) .....

(b) .....

(c) to dismiss a second person from his employment;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

and

18. Where:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

and

18A. (1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

Background

The complainant was born in Burma, probably in about January 1936. She was an orphan, and was raised by the Good Shepherd sisters in Burma and then India where in the early 1960's she was trained as a nurse in a hospital run by those nuns. She worked in India as a registered nurse for 8 or 9 years, and then in Germany, for about 10 years. She arrived in Australia in about May 1984. She has never married. Her qualifications were not recognised in Australia and she obtained work as an assistant nurse at the Marooma Nursing Home operated by the respondent in July 1985.

The respondent operates a number of nursing homes, including the Marooma Nursing Home, where it employs various categories of nursing staff, such as assistant nurses, or as that category is sometimes described, assistants-in-nursing. They are not required to have formal training in clinical nursing skills, but care for the patients or residents, by washing them, making their beds, feeding them, toileting them and providing other assistance in daily care. The respondent also employs enrolled nurses, who have one year's formal training in nursing care and clinical skills, and registered nurses who have three years of clinical training. In charge of them all is the matron, now known as the Director of Nursing. In about February 1990 Deanne Atkinson became Director of Nursing and was responsible for staffing matters and all matters relating to the day to day operation of Marooma. She is a registered general and psychiatric nurse, and holds a graduate diploma in health science and a Bachelor of Nursing. A director and the chief executive officer of the respondent, Erroll Hawkins ('the chief executive officer') is responsible for the financial planning and overall administration of the nursing homes conducted by the respondent. The chief executive officer was usually not involved in the day to day control of staff at the nursing home during the complainant's period of employment.

Marooma Nursing Home provides a 61 bed facility. Most of its residents are aged and very frail. Many of them are immobile, being bedfast or chairfast.

Following the publication of a Senate Select Committee Report in relation to nursing homes in about 1984, there were considerable changes in the patient or resident care in private hospitals and nursing homes. The requirements for the implementation of prescribed standards, and the auditing of those standards provides a convenient framework to explain a change, not only in policy, but in the direction of responsibilities for those involved in nursing home care. In November 1987 an Outcome Standards was gazetted. Between 1987 to about 1991 these standards required a staged implementation of the resident classification instrument, the clinical assessment of the individual care needs of each resident, to which regard was had in arriving at a notional nursing staff mix and funding level for each resident, and these were audited. Prior to February 1990, 15 residents were reviewed and 6 re-classified. Further changes took place following the formal audit process of those standards and bi-annual assessment of care levels and standard testings. Marooma underwent two such inspections, one in February 1991 where 31 standards were tested, and only 5 found to have required action. In February 1993, 30 of those standards were found to have been met, and only one requiring action. In about October 1991, a charter of resident's rights and responsibility in nursing homes was published.

THE EVIDENCE

Ms Atkinson (the Director of Nursing) was expected to bring Marooma to the level of the Outcome Standards, to provide an optimum standard of healthcare for the residents, and to measure the outcomes achieved and bridge any gaps. After the first few months she said she realised that the standards that should have been reached by 1990 had not been attained. Accordingly she identified a need for great change in areas such as standards, work practices, staff attitude and staff behaviour. She was concerned to ensure that the staff put resident care in priority to any other work and to look upon each resident as a whole person, not simply giving physical care to the residents but also "the social care, the psychological care, spiritual care all those other sorts of things that make us all what we are". She faced a considerable task ensuring that staff at Marooma implemented those standards, and achieved her goal of improving Marooma's standards. In a recent audit none of the residents audited was required to be reclassified. In the opinion of the chief executive officer she is also very compassionate when it comes to the interaction and counselling of residents and relatives.

Not only is physically hard work involved in care of the residents at Marooma, but this work is also extremely mentally draining. Because the environment is stressful for staff, there is a high percentage of staff burnout. As Ms Atkinson explained the residents are unpredictable, the whole environment is very unpredictable, and this takes its toll upon the staff. It is important to stress that Marooma is not a retirement village for people who are simply too elderly to care for themselves. It is a psycho-geriatric unit specialising in the care of people who have severe dementia, for the elderly suffering from disease processes causing confusion and for the elderly suffering psychiatric illnesses such as schizophrenia. Most of the patients are in their late 70's or early 80's.

Staff disciplinary procedures

Prior to 1990 there were no standards for disciplinary procedures for staff members at Marooma. The conduct, reprimanding and dismissal of staff was left to the discretion of the then matron, Matron Ganiban. In about 1991 the respondent implemented a new disciplinary procedure, whereby the Director of Nursing would give warnings and direction to staff who were not working satisfactorily, or who were in breach of work performance standards, with notes of those breaches to be kept on their files. Other than for serious misconduct, she was expected to give a staff member a warning and the opportunity to rectify any deficiency in work performance, or in other words, a second chance. Otherwise if there was serious or wilful misconduct, she had the discretion to terminate the employment of that staff member immediately. The chief executive officer was to have no part in discipline, but expected to be kept informed. Thus the Director of Nursing was to have sole responsibility for discipline. In her view, severe abuse of residents' rights involving an injury sustained by the resident or other physical or verbal abuse of residents, might warrant instant dismissal depending on the surrounding circumstances.

The reprimand book

A Reprimand Book was kept at Marooma from about 1988 until about early 1992, in which warnings, complaints about staff or terminations were sometimes noted. It is an ordinary exercise book with some loose papers inserted. Three incidents relating to the complainant were written up in the Reprimand Book by the Director of Nursing, they concern Patient R, Patient G and Patient F, and are the last entries written into the exercise book apart from a few loose pieces of paper.

The Reprimand Book was not a contemporaneous record of those three incidents, each of those who reported or discussed the incidents with the Director of Nursing did not agree in some important respects with what was written in the Reprimand Book, and the evidence of the Director of Nursing in relation to these three incidents was unsatisfactory. The respondent contended that all three incidents had brought about her being given notice of her termination on 10 December 1991.

Essentially, the complainant gave evidence that she believed that she did not ill treat any of those patients, or if there was any procedure that she did not adopt or incorrectly adopted, they were not procedures a breach of which would have required her dismissal. The complainant also suggested that incidents involving those three patients did not occur as the respondent alleged.

Racist comments

Carol Greer, an assistant in nursing, who was employed at Marooma from about 1989 to about July 1992 said she had heard an enrolled nurse Max Dempster, say, about a month before the complainant left, "the black bitch" but she did not know to whom he was referring. She had also heard him say "bloody Malaysians" a number of times, and that he had said that Malaysians "shouldn't be in the country and things like that". She never reported him for making those comments. She described the complainant's nursing care as excellent, "she loves the residents. She did not hurry or rush them. She took particular care in their health and wellbeing. She just did everything perfect. She was good for them".

Nurse Dempster is an enrolled nurse who was employed at Marooma between March 1991 and September 1992 when he resigned. He was superior to the assistant nurses, he said. He conceded he would make racist jokes or comments to people he regarded as friends among the staff who would take a joke for "the value of a joke" and "not said as bias". These included a number of the staff, including an assistant nurse David Hawke and the Director of Nursing (neither of whom are of Asian origin). He denied having been "cautious" as to what joke he would tell the Director of Nursing, and admitted he had told racist or blue jokes to about six other staff at the nursing home.

In her oral evidence the Director of Nursing described the complainant as a competent assistant in nursing, she described a Filipino assistant in nursing, Pol Ganiban as competent. Mr Ganiban has worked at Marooma for many years, his wife was matron of the nursing home between 1987 and 1990, and at the time of the hearing he was still employed there. She described David Hawke as a good assistant in nursing and competent, and Mr Dempster, with whom she said she had a good rapport, as having good clinical expertise and as being of "a very, very high standard enrolled nurse". The Director of Nursing said she had not heard Nurse Dempster make a racist joke "in the workplace", and although she did not socialise with him she probably would have heard him tell racist jokes as "an occasional thing". She had known Nurse Dempster since working at a public hospital in about 1983, but she thought he did not tell more racist jokes than most other people would tell, which she said was probably a couple of times a year on average. She had never told him not to tell those types of jokes.

Pol Ganiban gave evidence of racist comments being made in the smoking area where staff who were smokers apparently congregated:

"Most of the smokers, they crack jokes about Asians, like wogs and things like that. But you don't take it seriously because its a common term, something like that."

Mr Ganiban thought Nurse Dempster made such comments, but was not offended immediately as he said Nurse Dempster had a good sense of humour, but when he thought about it later, it hurt. He suggested Nurse Dempster made racist comments, which sounded like "they are trying to degrade the Filipino woman", had used words like "wog" and that he had once heard him say "black bitch" to Ms Daniels, a few months before her employment was terminated. Although she did not testify that she heard this, the complainant said that Max Dempster had criticised the way she spoke or had passed remarks about the way she spoke on one or two occasions. Mr Dempster denied making racist comments or ever having any conflict or confrontation with the complainant, "she was just another nurse". He may have spoken to her, he said about the way she talked. He denied racist abuse in particular and in general or ever saying anything directly to any staff member, Asian or white in the staff room, but if he had it would have been in the context of a joke and "I'm usually pretty particular about not bringing up racial comments to anyone who I though might take offence at it". He denied there had been any animosity between himself and the complainant.

Colleen Richter is employed at Marooma as a diversional therapist, and testified that she had heard the complainant say "I'll get that bitch. I will sue her. I'll even get her house.", on the day that the complainant's employment was terminated. She said Max Dempster had never done anything to indicate that he was racially prejudiced and that she had never heard him make racial comments nor would he joke with her. She was a friend of the Director of Nursing and they had worked in another hospital together, but for a number of reasons canvassed with her, Ms Richter's evidence was unreliable. An assistant nurse who remained at Marooma after the complainant left, Marie Osa, a Samoan, said the Director of Nursing treated white Australians the same as the Asian staff members and that she found the complainant really hard to work with, and thought the complainant was rough with the residents but had never reported her for that. She did not hear Max Dempster make any racial comments.

Patient R

On 31 October 1991 Nurse Daniels was required to care for Patient R, who was unable to stand or walk unaided. Patient R, who had difficulty speaking, but screamed frequently if she were wet or uncomfortable, had been screaming the whole day, the complainant said. It was a hot day, and while Nurse Daniels attended to her for some time, Patient R continued to scream. When it was almost afternoon tea time, Nurse Daniels placed her chair near other residents. But as she turned away, Patient R began screaming again. Finally, the complainant, frustrated and exasperated, decided to move her, swinging the chair around with all her strength. Sister Gail Heseltine who was on duty, intervened and said she would take Patient R, and that the complainant could go and have a cigarette. Nurse Daniels burst into tears and ran away. Later Sister Heseltine told her because there were relatives of residents in the vicinity she would have to report the complainant to the Director of Nursing but the complainant said she would tell her herself, which she did. According to the complainant the Director of Nursing told her not to worry, saying "It takes a lot of courage for you to come and tell me what you did. Don't worry. Those upstairs have been complaining about her for ages." There was other evidence that those who worked in the upstairs office had complained about the noise.

The first entry in the Reprimand Book concerning the complainant is dated 4 November 1991, and is signed by the Director of Nursing. The Director of Nursing did not write this entry in the Reprimand Book on 4 November 1991, but some weeks later. She notes that the complainant had approached her telling her of the incident on 31 October concerning Patient R and that "in a fit of frustration she swung [Patient R's] chair around quite harshly", that registered Nurse Heseltine who had also spoken to her confirming those events had "described the incident as quite unprofessional". The Director of Nursing then notes that on speaking to the complainant again, "I reinforced to her that this is not acceptable". On this entry, the Director of Nursing wrote "warning one" in red. This appears in the Reprimand Book on the pages following a note of a formal warning given to four other staff, which is dated 29 November 1991. The Director of Nursing testified she had given a warning after the Patient R incident, but there is no mention of a warning in the text of this incident as it is written up in the Reprimand Book. The complainant denied that the Director of Nursing had warned her or had told her it was unacceptable behaviour or that it would be going on her record.

The registered nurse, Gail Heseltine, who worked at Marooma until about March 1992 testified that the complainant was very stressed at the time and in her opinion Patient R's screaming was enough for that incident to occur. As far as she was concerned the patient had not called out because of anything the complainant had done and the complainant had not done anything wrong at all. Ms Heseltine confirmed that she had gone to see the Director of Nursing about the incident, but from what she had seen there was nothing that made her think it should have been entered in the Reprimand Book.

Patient G

On about 1 December 1991 Nurse Daniels was working with David Hawke, another assistant in nursing. They were doing the afternoon rounds, which involved washing the residents, changing their positions, and making them comfortable in bed. They reached Patient G. The complainant's evidence was that she thought Patient G was lying on her side, and the complainant told David Hawke that she would lift the patient's legs so they could clean her properly. The complainant said David Hawke was standing on the other side of the bed with a washer in his hand, and that she lifted the lower part of Patient G's leg, about 18 inches, and heard a snap. However Mr Hawke testified that when they pulled back the sheets from Patient G, he went outside the curtain to get washers and water, and while he was outside he heard a pop and Patient G yelled. The complainant called the registered nurse on duty who examined the leg and found the leg was fractured. Other evidence suggested that the complainant may not have moved the patient's leg in the correct manner, and may have been in breach of procedures laid down for frail patients. Patient G was sent to Royal Brisbane Hospital. Although Patient G had severe osteoporosis, neither the complainant nor it seems, other assistant nurses, knew of this.

The next day the Director of Nursing spoke to Nurse Hawke. Mr Hawke was still employed at Marooma as an assistant in nursing at the time of the hearing. He testified that he had never seen the complainant lift a resident without assistance.

The second entry in the Reprimand Book concerning the complainant relates to the incident with Patient G on 1 December 1991. The Director of Nursing wrote "warning two" on this entry, which notes that the Director of Nursing interviewed Nurse David Hawke and that he stated that incident should never have happened, that he was tucking in the draw sheet when he saw the complainant raise Patient G's leg, that the complainant did not wait until Nurse Hawke was ready to assist, and that she had just lifted Patient G's leg but that he did not actually witness the force with which the leg was raised. Mr Hawke also testified that he was undecided whether anything was wrongly done, that he did not actually witness the incident, and that he did not see the complainant raise Patient G's leg and he did not tell the Director of Nursing that he had seen the complainant lift Patient G's leg and she was incorrect in writing that in the report.

On the morning following this incident the complainant was told that the Royal Brisbane Hospital had reported Patient G had severe osteoporosis. The complainant then waited for the Director of Nursing to return to work after the weekend, and on the morning of her return the complainant told her that she was the person involved with Patient G, but the Director of Nursing said she would see her later. However that day, 2 December 1991, the Director of Nursing was to give evidence at a special meeting of the Nurses Registration Board of Queensland which was holding an inquiry into the conduct of a registered nurse, of Malaysian origin, who had been dismissed from Marooma by the Director of Nursing for dispensing medication that had not been prescribed. The Board dismissed the charge against the Malaysian born nurse. In the course of its hearing the Board considered the events surrounding the dispensing of unprescribed medication by this registered nurse, including evidence of a communications book which contains instructions for residents' medication. The Director of Nursing had mistakenly written the name of one drug which was dispensed by the registered nurse in this book. The Director of Nursing did not tell the chief executive officer of this mistake until about two years later. Although she admitted her mistake to the Board, she then maintained it was the registered nurse's obligation to have picked up her mistake as the Director of Nursing was not the person dispensing the medication. The complainant told other staff that the Malaysian registered nurse had won the case and the complainant believed that that was one reason why the Director of Nursing had later dismissed her.

On about 3 December the complainant was told to go to the office, and David Hawke was already there. The complainant said that the Director of Nursing had pointed her finger at Ms Daniels and accused her of rushing around and doing her work in order to get off in time. She accused her of "doing" Patient G alone, and the complainant denied that. She said the Director of Nursing had told her "This is your last warning", but she had replied that she had never had any warnings before. The entry concerning the Patient G incident in the Reprimand Book, notes the Director of Nursing told the complainant that this was her second warning and any further incident would result in termination.

Patient F - 10 December 1991

The third incident concerning the complainant arose because Nurse Max Dempster reported it. The third and last entry in the Reprimand Book was also made by the Director of Nursing and relates to the Patient F incident on 10 December 1991. She notes that Nurse Dempster had approached her when she arrived for duty at 8:00 am with his concerns about resident safety and comfort.

Earlier, within a few days of Patient G's leg being broken, the nurses at Marooma were required to attend lifting training and demonstrations. Nurse Dempster said he did not recall why the lifting program was being undertaken, but "everyone at that stage knew" that a patient's leg had been fractured. Nurse Dempster claimed he was not aware of the incident involving Patient G until after the Patient F incident. Mr Dempster testified he would have sacked the complainant on the spot for the Patient G incident if he had been Matron. He said the complainant was often impatient, more verbal and rougher in handling her patients than he thought necessary. He thought it his duty to report any uncalled-for behaviour but he had never reported an incident concerning the complainant before. However he said as other staff had told him she was rough and stirred up the residents but had declined to make a written report, on that basis, "I was aware of her record [of the staff making complaints to him] and tried to keep my eye on the situation". He said his report was accurate. The report relates to what Mr Dempster claims to have seen while the complainant was lifting Patient F.

On 10 December 1991 the complainant was working with another assistant in nursing, Pol Ganiban, caring for the bedfast residents. They were tending to Patient F, returning her to bed from a shower chair. Nurse Ganiban said Nurse Dempster had been making the bed of another patient when the curtains were drawn around Patient F, it being the policy of the nursing home to give privacy to the residents. Nurse Ganiban was sure that the curtains were drawn around the patient's bed so that the two curtains met together. According to Nurse Ganiban, even if they had not met, Mr Dempster could not have seen what was happening as he would have seen only the bottom end of the bed, whereas they were at the top end of the bed with the patient. Although Patient F was severely contracted and in the foetal position, he did not recall her being distressed when they lifted her. Ms Daniels had cautioned him to be extra careful because of what had happened to Patient G, so he said they were extra careful in what they were doing that particular day. He denied Ms Daniels had tried to lift Patient F by the ball of one foot, and the effect of his evidence was that Patient F's legs would have been moved out slowly from under the chair one by one and then an arm placed under the two legs behind the knee. He said he had to watch what the complainant was doing because he had to be ready to lift when she was ready.

The Director of Nursing gave oral evidence that Nurse Dempster told her that he was making someone's bed in the room, that Pol Ganiban and the complainant were lifting someone from a shower chair back into bed and Nurse Ganiban lifted the top half of the patient's body, and the complainant had lifted patient F by the sole of the foot. She said he told her that the curtains were not fully around the bed so he could see. She asked him to put it in writing and he then brought her a written report. There is nothing in the Reprimand Book which suggests Nurse Dempster had told her the complainant had lifted the patient by the sole of the foot. Nurse Dempster's report is attached to the 10 December entry in the Reprimand Book and alleges that about 7:30am that day, Patient F was being transferred from a chair to a bed "in a manner which was not the prescribed lift", it suggests that Nurse Ganiban lifted the upper torso correctly, but the complaint "had one hand under the foot lifted her weight from one foot" and that this caused distress to the resident and she had cried out.

Nurse Dempster in testifying that he was heading out of the room when he saw the incident through a gap in the curtains, did not say he saw Patient F being lifted by the sole of the foot.

In terminating the complainant's services, the Director of Nursing said she had relied upon the information provided by Nurse Dempster as well as the previous incident with Patient G. The Director of Nursing testified that she did not think the complainant should have been given an opportunity to explain this incident, because of the Patient G episode. She decided, following Nurse Dempster's allegation, that no matter what the complainant said, it would not change her mind. She knew that Nurse Ganiban was present, but did not bother speaking to him. She said she was aware that the complainant liked working at Marooma, but whether the job was her life, was no concern of hers. The Director of Nursing told the chief executive officer that she was about to terminate the complainant's services, before her services were terminated. The chief executive officer thought Ms Daniels was a good nurse and that she had had quite good annual assessments. He read Nurse Dempster's statement about the Patient F incident shortly after it occurred, he was aware that Nurse Ganiban was present at the time and made no attempt to find out what he had to say about it. He was then aware of the Patient G incident. He conceded it would have been preferable had Mr Ganiban been asked to give his account of the events.

Although it was her practice when investigating an incident, usually to speak to the person against whom the allegation was made to find out that person's side of the story, in this case the Director of Nursing had a dismissal notice typed out and handed it to the complainant that afternoon. When the complainant was called to the office, she said the Director of Nursing told her that in spite of her warning, the complainant had lifted Patient F's leg causing her much distress. She said she denied that and was handed her her termination letter. The Director of Nursing noted in the Reprimand Book that at an interview with the complainant, the complainant had stated "she didn't realise she had done this", that the Director of Nursing had explained this was the third incident, it would result in her services being terminated, and that she gave the complainant the letter specifying her termination.

That was the last day that Nurse Daniels worked there and she was not given any opportunity to resign, nor would the respondent agree to her resigning when the union made a request on her behalf.

Decision to terminate or permit resignation

The chief executive officer said the complainant was not permitted to resign, he thought he was involved in that decision, because the complainant was involved in a particular breach of policy in relation to very frail chairfast residents, that this was regarded as very dangerous and as there had been a repeat so quickly, and she had been through a lifting program between the two events, they did not think it was appropriate to simply allow a person to resign and condone the action. Nurse Ganiban was not asked by the Director of Nursing or the chief executive officer about what had really happened, until two years after the event, a short while before the public hearing. He said he had not approached Ms Atkinson to speak about the incident because she was very hard to approach and that there had been two incidents when Ms Atkinson had raised her voice in front of other staff and residents and he had felt degraded.

The complainant contends that the summary dismissal of the complainant, without giving her the opportunity to resign on 10 December 1991 constituted a contravention of the Act as there were circumstances from which the inference could be drawn that race was a contributing factor to the decision to dismiss her, and that the fact of not being given an opportunity to resign constituted an unlawful act involving a distinction, exclusion or restriction based on the complainant's race, colour or national or ethnic origin. Where an employee is dismissed in circumstances where the employer may lawfully exercise the power to summarily dismiss the employee, it is necessary to consider whether there were other less drastic options open to the employer, such as a reprimand or providing an opportunity to resign. Depending upon the circumstances, the exercise of the power of dismissal might be seen as an act of unlawful discrimination based on race or ethnic origin when it is contrasted with other decisions made in "similar" cases but relating to people of other ethnic backgrounds. If in those other cases the employer exercises the power of dismissal differently, then the issue arises where, for example, no explanation is sought or no other opportunity is given to an employee who is a qualified, competent and diligent worker: Laher v. Barry James Mobile Cranes Pty Limited [1994] EOC 92-585. It is necessary then to consider the evidence of others who resigned or were dismissed during the period that the complainant was employed.

During this period the number of staff who left Marooma, some who had been given an opportunity to resign, and others who had been dismissed summarily, must be seen in the context of the change in policy and there having been a high turnover of staff even prior to the Director of Nursing's appointment.

Those who resigned for personal reasons, where there had been no disciplinary action and no disciplinary interview or warning, must be disregarded. Other staff whose employment ceased after the Director of Nursing was appointed included those who resigned shortly after disciplinary action or a warning had been given or after an interview involving a disciplinary matter, or while awaiting an interview or disciplinary action that would have led to termination. Few were of Asian origin. There were also those who resigned during or after an interview which would have resulted in termination, but resigned prior to being handed a termination notice. Again there were few, if any of Asian origin. There was a pattern of Australian staff, as opposed to those of Asian origin, being treated more favourably in this regard. A couple of examples will suffice. One registered nurse had the opportunity to resign, though she had given double medication to patients, and she was an Australian. The Malaysian registered nurse was not offered this opportunity, after her services were terminated and the Queensland Nurses Registration Board had dismissed the charge against her, although the respondent's evidence was that she had not sought the opportunity. Another nurse, again an Australian, was dismissed. She was said to have been guilty of improper practices, but she was permitted to resign after the union intervened and a letter of resignation was placed on her file.

Director of Nursing's attitude to non-Australian staff

The complainant contended that the proportion of those of Asian origin working at the nursing home had dropped to a significant extent since the Director of Nursing had taken over, and that the Director of Nursing had not permitted experienced assistant nurses of Asian origin to show new nurses around the nursing home. I was not persuaded that this was the case or that any significant change in the proportion of Asian staff came about for a reason involving race or ethnic origin.

Prior to Ms Atkinson's appointment as Director of Nursing, the assistant nurses were unsupervised, but if there were problems they could go to the registered nurse on duty. Matron Ganiban, the Director of Nursing's predecessor, had appreciated the complainant's keeping her wards spotless. The complainant liked things to be neat and orderly and tidy, but the Director of Nursing did not expect the wards to be as tidy as Ms Daniels would have liked. The Director of Nursing instructed the complainant to concentrate on looking after the patients first, rather than worrying about the ward looking tidy. It seems the Director of Nursing's approach was also different to that of Matron Ganiban in terms of the respectful behaviour expected to be shown by the staff to Matron Ganiban, and in the hands-on assistance given by Matron Ganiban in the nursing care of the residents. However when Ms Atkinson became Director of Nursing she was required to undertake greater responsibility in administration.

A competent employee

Nurse Daniels said she enjoyed her work at Marooma and the evidence showed she almost invariably arrived early for work. Mr Ganiban described Ms Daniels work as follows:

"Rose is very fussy about her job. She likes everything to be in order and if Rose finds out that something, you are not doing it the proper way, she'll tell you off....... I mean when Rose find other staff - not Max - that they're not doing their job properly, Rose has to tell the staff straight away that's wrong and Max heard all those remarks from Rose so probably he had enough so he said 'you're a black bitch'."

In May 1991 the complainant's performance was appraised by a registered nurse who described her as an excellent nurse, astute in her observations, displaying initiative, always well groomed and tidy, and that she was always friendly and polite to visitors. However it was noted that the complainant needed to communicate first with the residents and then do the chores, that she needed to slow down and take more time to explain to residents what she was doing and sometimes needed more care in approaching residents, that she needed to show more empathy towards new staff. The Director of Nursing noted on that report that:

"Rose's years of nursing experience have given her a high standard of skills in nursing care. I cannot fault the physical care Rose gives these residents. Also her wing is always impeccable and tidy and it makes me proud when I walk through it.

Rose needs only to take care with her approach to the residents. I suggest to "slow down"! Always tell the resident who you are, what is happening etc. This will take a little extra time, but it may save you time in the long run.

I hope this is helpful to you Rose - please come and see me if you want to talk."

Effect of Dismissal

The complainant suffered after her services was terminated, she was alone, without family and does not appear to have numerous close friends. Nursing was the only job she knew, she had nursed since her training and she felt it was her whole life. With her dismissal she suffered from depression, and was deeply ashamed. Although Ms Daniels had kept contact with the nuns who had raised her and trained her, she did not tell them of her dismissal, as she was too ashamed. The complainant was unable to obtain employment as an assistant nurse, though she made numerous applications or approaches to other nursing establishments. Not long after her dismissal, she obtained part time work as a laboratory assistant, a job which requires no formal qualifications or contact with patients. At first she was on call from late December 1991, and then from July 1993 in full time employment.

FINDINGS

The respondent's submissions on credibility relied to a significant extent upon the evidence of some of the staff who were employed at the nursing home when the complainant was there and who were still employed there at the time of the hearing. About seven of these staff had been interviewed by the chief executive officer and the Director of Nursing a short time prior to the hearing, including Colleen Richter, Paul Ganiban and Marie Osa. Each of them was read a statement which set out the respondent's version of the events concerning the dismissal. They were all asked questions about issues raised by the complainant. The chief executive officer was also present in the hearing room while each of them gave evidence. Consequently, apart from Mr Hawke and Mr Ganiban, not much weight is given to the evidence of some of those staff, having regard to a number of matters, including the prepared statement of events that was read to each of them, the positions they occupy, many of them being from non-English speaking backgrounds, and that three of them were related and one of those three had been given a final warning (although not in connection with the hearing or the complainant and no adverse inference should or could be drawn in respect of that warning).

Having regard to the gravity of the matters alleged, the complainant must prove on the balance of probabilities, in accordance with the principles laid down by the High Court in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that she was a victim of unlawful racial discrimination or that her race, colour or national or ethnic origin was at least a reason for her dismissal or that there was conduct that discriminated against her in the way described in s. 15(1). I find that the complainant did not make threats concerning the Director of Nursing after her employment was terminated.

I accept that the incident involving Patient G was most serious, and I am not persuaded that there was no violation of correct procedure involved. The evidence suggested that staff were then aware of the correct lifting procedures to be used in dealing with bedfast or chairfast patients, and that nurses were not to lift patients alone, although the assistant nurses had not been told that Patient G was severely osteoporotic. The further instruction in lifting procedures given to the staff indicated the respondent's concern to ensure that such an incident did not happen again.

I am not persuaded that the turnover in staff of Asian origin was the result of a racist policy, nor am I persuaded that the percentage of non Anglo-Australian staff employed at Marooma has decreased to such a significant respect since Ms Atkinson became Director of Nursing there, that a racist attitude could be inferred from that. Until all those circumstances were known and explained, the impression might have been given that non-white non Anglo-Australian nurses were treated differently to others in this respect, and that the complainant genuinely believed that was so, as she genuinely believed that the Director of Nursing had spoken to her and other staff of Asian origin in a much less friendly manner than she did to others. However when one has regard to the stress under which all staff worked, and to the Director of Nursing's rapport with Nurse Dempster and the long period for which she had known him, I also accept that the complainant genuinely believed the Director of Nursing preferred white staff and spoke to them differently. In this respect I have taken into account that the former Matron, who was Mr Ganiban's wife, had a different approach when dealing with staff. Although it appears that there was a personality clash between the Director of Nursing and the complainant, I am not satisfied that that factor or perhaps poor communication, were the only reasons for the Director of Nursing deciding to act upon Nurse Dempster's report of the Patient F incident. She denied that race was a contributing factor to that decision. I accept that the Patient G incident was such as to cause the Director of Nursing grave concern, but I find that she did not give the complainant a warning in respect of Patient R, and that the incidents concerning Patient R were not written as they appeared in the Reprimand Book prior to the occurrence of the Patient G incident.

It remains to consider the situation of those staff who were about to be dismissed but were given the opportunity to resign either by being advised of that opportunity or because the respondent had failed to summarily dismiss that person prior to that person handing in a resignation. There were some instances where the dismissal of one employee, when compared with some of the circumstances of another who was permitted or able to resign, suggested a distinction may have been drawn based on the colour or national or ethnic origin of the one dismissed. After carefully considering the evidence surrounding the circumstances of numerous staff who resigned or were dismissed since the appointment of the Director of Nursing, I am not persuaded, on the balance of probabilities, having regard to the differing circumstances, that non-white, non Anglo-Australian staff who contravened instructions or nursing standards, were for that reason dealt with more harshly than white-Australian staff, in not being afforded the opportunity to resign.

I accept that Nurse Dempster subjected some of the staff at the nursing home to racist comments and abuse. I found Pol Ganiban a witness of truth. No direction not to engage in racist abuse or racist jokes had been given to Nurse Dempster by the Director of Nursing or by the officers of the respondent. She had condoned Nurse Dempster's behaviour. I am satisfied that Nurse Dempster made racist remarks and his verbal abuse of the complainant was grounded in race. I have taken into account that the complainant did not in giving her evidence state that she had been called a "black bitch" by Mr Dempster or by anyone else, and I find that the race or ethnic origin of the complainant was a reason for his report. Nurse Dempster's racist comments and jokes had created a hostile working environment for the complainant and others of Asian origin and in this environment he was critical of the complainant. I take into account that he was not favourably disposed towards the complainant while she was there and had been looking for an opportunity to report ill of her. I am not persuaded that Nurse Dempster could have seen what occurred when Patient F was being lifted into bed. His report was false, and I am satisfied on the balance of probabilities that the Director of Nursing knowing of his racist attitude, even as demonstrated by his racist jokes, which she did not find objectionable, and in reliance on his report, summarily dismissed the complainant without giving her or Mr Ganiban an opportunity to deny that false report.

None of those who were offended by racist remarks or jokes reported these to the Director of Nursing or to other officers of the respondent. However there was no system in place whereby non-white non Anglo-Australian staff were assured that such complaints would be taken seriously nor that a complainant would not be viewed adversely for so complaining. Neither the Director of Nursing or any other officer of the respondent, could have expected Mr Ganiban or anybody else to make such complaint to the Director of Nursing about Nurse Dempster, taking into account the regard in which she held him and the length of time she had known him.

I am satisfied on the balance of probabilities that Nurse Dempster was actuated by his dislike of Nurse Daniels this being partly grounded in race, in making the report about the Patient F incident, and that the Director of Nursing, having regard to the serious nature of the injury suffered by Patient G, and the chief executive officer's view of the seriousness of that incident, was disposed to act precipitously on that report. There is no evidence suggesting that the chief executive officer was in any way himself motivated by racist attitudes in agreeing to the termination of the complainant's employment or in refusing to give her an opportunity to resign. He acted on the advice of the Director of Nursing, and she was aware of the enrolled nurse's racist attitudes. But the respondent did not take all reasonable steps to prevent Nurse Dempster's ill-will towards the complainant, which was grounded in race, from having the adverse consequences it did. The respondent relied on his report, which was untrue and was motivated by his racist attitudes. It took its decision to terminate her employment and its refusal to give her the opportunity to resign, on the basis of that report. Further, it contended that it was entitled to rely upon the three incidents in terminating her employment in refusing to give her the opportunity to resign. Accordingly I am satisfied that the respondent's decision to terminate her employment was in part actuated by the race or ethnic origin of the complainant. It is unlawful conduct for which the respondent is liable.

Having found the complaint in respect of her termination to have been substantiated, it remains for me to consider whether I should make any of the declarations provided for in s. 25Z(1)(b) of the Racial Discrimination Act. The complainant seeks an apology from the respondent, a written reference with an undertaking to orally support that reference and a declaration that the respondent pay the complainant damages. I am not persuaded that the circumstances call for a written reference, having regard to the evidence concerning the Patient G incident. The chief executive officer inferred that an anti discrimination policy would be implemented, and having regard to the respondent's ongoing relationship with staff of a number of races or ethnic origin, I am of the view that the respondent should be given the opportunity to provide her with an apology without being ordered to do so. That leaves for consideration an award of a sum of damages by way of compensation for economic loss and the pain, suffering and humiliation surrounding her dismissal. She claims a substantial sum including an amount being the difference between what she would have been paid if she had remained at the nursing home until 65 and what she would receive if she were to remain in employment as a laboratory assistant. I am not persuaded, owing to her relationship with the Director of Nursing that the complainant would have remained at Marooma for that period. Accordingly I propose to award a global sum, which includes a modest amount for past economic loss, and having regard to like awards, an amount for the pain and humiliation which she undoubtedly suffered. I assess compensation by way of damages in the sum of $7,500.

CONCLUSION

For these reasons I find the complaint is substantiated and I make the following determination:

In accordance with s. 25Z(1)(b)(iv) I declare that the respondent should pay to the complainant damages by way of compensation for loss and damage suffered by reason of the conduct of the respondent, including injury to her feelings suffered by her, in the sum of $7,500.00.

DATED this 24th day of January 1995.

P.M. Wolfe

Inquiry Commissioner