Franks v Hunter New England Area Health Service [2007] NSWIRComm 100 (6 July 2007)

Last Updated: 13 July 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Franks v Hunter New England Area Health Service [2007] NSWIRComm 100



FILE NUMBER(S): IRC 3947

HEARING DATE(S): 13/3/06, 7/4/06, 29/5/06, 30/5/06, 31/5/06, 11/7/06, 12/7/06, 22/2/07, 26/3/07, 30/5/07

DATE OF JUDGMENT: 6 July 2007
PARTIES:
APPLICANT
Maree Joy Franks
RESPONDENT
Hunter New England Area Health Service

CORAM: Harrison DP


CATCHWORDS: Application for relief from unfair dismissal - Employee registered nurse - accusations of misconduct, failure to document work records accurately, failure to attend to palliative care patients in accordance with guidelines for visitation, failure to complete motor vehicle usage records accurately - first investigation determined remedial program - second investigation and inquiry - further allegations - resignation effected on advice that employer intended to dismiss.
Held - Constructive dismissal - no evidence to support allegations - no factual base to misconduct - remedial program determined by first investigation not implemented - re-employment ordered - wages lost and continuity of service awarded - delay in conclusion of proceedings due to ill health of advocate - reduction in order for wages lost due to delay.

LEGAL REPRESENTATIVES

APPLICANT

Mr B Evans
Interim WRC

RESPONDENT
Solicitor

Mr T Sebbens
Blake Dawson Waldron


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

LEGISLATION CITED: Industrial Relations Act 1996
Health Services Act 1997
Coroner's Act 1980



JUDGMENT:

- 87 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 6 July 2007

Matter No IRC 3947 of 2005

MAREE JOY FRANKS AND HUNTER NEW ENGLAND AREA HEALTH SERVICE

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

DECISION

[2007] NSWIRComm 100

1 Ms Maree Joy Franks, the Applicant, was an employee of the North Coast Area Health Service (NCAHS) until a restructure of public health services which resulted in a transfer of her employment to the Hunter New England Area Health Service (HNEAHS) ("the Respondent"). Ms Franks was employed by the NCAHS as a registered nurse from 1971. For 10 years prior to termination of her employment Ms Franks was employed as a palliative care nurse at the Gloucester Community Health Centre ("Gloucester").

2 The Respondent asserts that Ms Franks resigned from her employment. Ms Franks asserts that her resignation was forced upon her, and that it was harsh, unreasonable and unjust.

3 The application was filed on 29 July 2005, beyond the period of 21 days prescribed by s 85(1) of the Industrial Relations Act 1996 ("the Act"). The Act affords the Commission discretion to accept an application out of time. Section 85(3) provides:

(3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) the conduct of the employer relating to the dismissal

4 In support of the application for exercise of discretion to admit the application out of time Ms Franks stated:

During the time of my suspension from work and prior to my forced resignation from the Health Service, my mother passed away. I required some time away after this and it was not until I sought advice from a consultant regarding my forced resignation, that he told me of this. After seeking advice, I have requested him to make an immediate application for my unfair dismissal.

5 The application to accept the matter out of time was not opposed.

6 I am satisfied that having regard to s 85(3) there are sufficient grounds to admit the application out of time.

7 The matter was first subject to proceedings for the purpose of conciliation and directions before Commissioner Stanton on 18 August 2005. These proceedings established that the matter could not be resolved in conciliation and directions were issued to prepare the matter for hearing by October 2005, subsequently extended to November 2005, then further extended by the filing of a Notice of Motion by the Respondent concerning jurisdiction.

8 The matter was reallocated to the Commission as presently constituted and subject to proceedings on 21 November 2005. As a result of those proceedings directions issued to prepare the matter for hearing on 13, 15 and 16 March 2006.

9 Arbitration proceedings commenced as scheduled on 13 March 2006. Mr B Evans appeared on behalf of Ms Franks. Mr T Sebbens, Solicitor, appeared on behalf of the Respondent.

10 During the course of Ms Franks' evidence Mr Sebbens sought a ruling on the jurisdictional question of whether Ms Franks was dismissed from her employment or had resigned.

11 Mr Evans opposed a ruling on the issue at that time.

12 A ruling was not made and the matter proceeded.

13 Mr Evans objected to the tender of particular documents as they lacked completeness, certain confidential information having been deleted on the grounds of privacy. It was established that Ms Franks would be privy to the confidential information in the ordinary course of her duties, however, could not be expected to be cross-examined on the material without the complete document being put to her. Proceedings were adjourned to 6 and 7 April 2005 to allow the necessary documents in an appropriate form to be made available.

14 On 31 March an Ex Tempore Decision in respect of the jurisdictional issue was delivered in proceedings convened for that purpose.

15 The Decision re Jurisdiction is published below:

HIS HONOUR: On the last occasion, Mr Sebbens invited me to make a decision in respect to jurisdiction on the evidence then before me which was resisted by Mr Evans and the position which I accepted at that time. Since then, I've had an opportunity to review the evidence and consider the import of it. I have come to the conclusion that Miss Franks tendered her resignation on advice from the union official representing her on the basis that the alternative to resignation was dismissal. Whether that advice was accurate advice and whether indeed it was in the mind of the Area Health Service to terminate Miss Franks' employment, I come to the conclusion that the advice and information given to Miss Franks brought her to that state of mind and that the resignation was offered in the genuine belief that the alternative was termination of employment which amounts to a constructive dismissal as described by all of the authorities. I therefore determine that there is no impediment to jurisdiction on that point. I believe it was of benefit to the parties to deliver that determination at this point in the proceedings. I've listed the matter for further conciliation on the basis that such determination may provide the parties a further opportunity to examine the matter in conciliation.

There are two issues which I believe it's appropriate that the parties be aware in the mind of the Commission that they should give serious consideration to in their further attempts at conciliation. The first is the fact that the issue has been referred to The Nurses Registration Board for determination and whether that places Miss Franks in a position of double jeopardy or not is a matter of serious consideration on her part. And that, so far as I'm concerned, emerged during the course of the proceedings on 13 March.

The second is the unchallenged evidence of Miss Franks that she was put on a warning and advised that she would be given remedial assistance and if I go to points 23, 24 and 25 of her affidavit, Exhibit 10, wherein she deposes that she had never received an invitation to attend the Taree Community Health Campus or to participate in a performance management review, and at point 25, was never advised of the results of any random audit at any time until she was suspended from work on 11 April 2005. That evidence unchallenged and unrefuted causes some difficulty for the respondent's case. I would be prepared to assist the parties in private conference if they so require.

16 The parties agreed to further pursue conciliation and the proceedings of 31 March 2006 adjourned for that purpose. The parties subsequently requested that the proceedings scheduled for 6 April 2006 be vacated and that the time allotted on 7 April 2006 be occupied with further conciliation.

17 On 7 April 2006 it was established that agreement was not possible. Mr Evans elected to continue these proceedings despite concurrent consideration by the Nurses and Midwives Registration Board. The matter was scheduled for completion of arbitration on 29, 30 and 31 May 2006, subsequently requiring further dates of 11, 12 and 13 July 2006. These dates proved inadequate and the parties sought conclusion of Hearing by written submissions. Regrettably, due to circumstances beyond the control of the parties or the Commission, Mr Evans was unable to file his submissions until 22 December 2006, resulting in completion of the matter by submissions in reply from Mr Sebbens on 26 March 2007 and final response from Mr Evans on 30 May 2007.

18 Mr Evans brought evidence from Ms Franks; Ms Diana Aird; Ms Mavis Johnston; and Ms Meryl Blanchard, all registered nurses employed by the Respondent.

19 Mr Sebbens brought evidence from Mr Peter Devine, Director Corporate Support, HNEAHS; Ms Louise Saville, Program Manager Generalist Care Services, Lower Mid North Coast Cluster; Mr Ken Hampson, General Manager Lower Mid North Coast Cluster; and Ms Lindsay Sutcliffe, a registered nurse employed by the Respondent at Gloucester.

CONSTRUCTIVE DISMISSAL

20 In the application filed on 29 July 2005 Ms Franks described the circumstances of termination of her employment in the following terms:

Ø On 11th April 2005, I was advised that, based on complaints made against me professionally, I was suspended on pay until such time as an investigation was undertaken.
Ø This investigation took some time for them to complete and during that time, I drafted a response to the allegations as they were not correct. There was no actual complaint that I was informed of simply that there were complaints.
Ø I was finally summoned to an investigative meeting with Mr Peter Devine on 24 June 2005. I was represented by Mr Michael Waites from the NSW Nurses Association in which I am a member.
Ø During the course of that meeting, it appeared to me that my explanations were never going to be accepted.
Ø I was advised by Mr Waites on the 12th July, that on the balance of probabilities, my employment was likely to be terminated and that I should get in first and resign. This advice was given after Michael Waites had spoken to Peter Devine regarding the outcome of the investigative meeting.
Ø There was no reason in my mind why I should resign as I did not believe that I had behaved unprofessionally and that this had more to do with personalities than professional ability. I asked Michael Waites if I was being hasty in resigning my position. His response was that "the only apparent options were for you to resign or be terminated".
Ø I would not have resigned my position but for this professional advice which appeared to be based on a discussion with Peter Devine, Director, Corporate Support.

21 This evidence was not shaken in cross examination, but rather reinforced by the evidence of Mr Devine. The principles of constructive dismissal found in Allison v Bega Valley Council (1995) 63 IR at 68 are applied.

ISSUES OF CONDUCT

22 In the period from February 2004 to the termination of her employment Ms Franks was subject to complaint and disciplinary action on two separate occasions, conveniently referred to here as the first and second investigations.

The First Investigation - February 2004 to September 2004

23 This series of events was initiated by complaint from Ms Franks and Ms Johnston concerning the reporting and management of then Clinical Nurse Co-ordinator (CNC) Charmaine Koller. Attempts to mediate the issues between Ms Franks, Ms Johnston and Ms Koller were unsuccessful, resulting in Ms Koller's resignation from her position at Gloucester and transfer to another position with the North Coast Area Health Service, as it then was.

24 Subsequent to her departure from Gloucester Ms Koller made written complaints concerning the conduct of Ms Franks and Ms Johnston.

25 The evidence of Ms Franks (Ex 10, pt 8) is that she believed that those complaints arose in response to a complaint she made when she found and read subjective comments about herself in monthly reports she believed were written by Ms Koller.

26 Ms Mavis Johnston has worked for the Respondent for period of approximately 31 years.

27 Ms Johnston deposed that on or about 24 February 2004 she was made aware that monthly reports carried inappropriate subjective comments which she believed had been written by Ms Koller. Ms Johnston asserted that the practice of subjective comment had commenced with Ms Koller's appointment to the CNC position and that there had been no consultation with her concerning the entries.

28 Ms Johnston deposed that on 24 February 2004 she and Ms Franks raised the matter with Ms Gerlinde Sonter, the Local Service Manager, who attended a meeting between Ms Koller, Ms Johnston and Ms Franks on 27 February 2004 to discuss the matter of subjective comment, and other issues. Ms Johnston deposed that at that meeting she expressed frustration at what she described as Ms Koller's time wasting style of management.

29 Ms Johnston deposed that the work environment was extremely unpleasant over the next two weeks.

30 A mediation session was arranged for 17 March 2004, with little effect. Ms Koller returned to work on 18 March 2006 and tendered her resignation from the position effective two weeks later.

31 Ms Johnston's evidence is that on 24 May 2004 she received a notice of complaint against her which she described as a letter of grievance which dealt with issues she considered resolved in the mediation process of 17 March 2004.

32 Ms Johnston was critical of the allegations, deposing that the identity of the complainant/s was not made known in all cases; nor was she provided with sufficient detail. Ms Johnston deposed:

The expectations of those making the allegations were never told to me and may have been unrealistic ...I was never advised of who had made all of these grievances.

33 The evidence of Ms Johnston is that she learned later that in some of the matters the persons said to be the complainant were unaware of the fact.

34 In cross examination Ms Johnston deposed that she was subject to a written warning in respect to those allegations which were found by management to be substantiated and was to be given some education in respect to her documentation, which remained of concern to the Respondent. Ms Johnston did not appeal the findings as she believed them final. Ms Johnston deposed that she believed that the disciplinary letter would ultimately be removed from her personnel file.

35 Ms Johnston accepted that if the disciplinary process was shown to be defective it would be to her advantage.

36 Ms Johnston asserted that management communication was at the heart of the problem.

37 Prior to Ms Koller's appointment, the CNC position was filled by Anne Davis from February 2001.

38 An affidavit containing the evidence of Ms Ann Davis was tendered (Ex 41). Ms Davis has relocated to the United Kingdom and was not available for cross examination.

39 Ms Davis deposed that she always found Ms Franks' work to be of a professional and caring manner to clients in her care. Ms Davis deposed that Ms Franks had extensive experience and skills, however, was prepared to take advice and seek confirmation where necessary; had an excellent working relationship with local doctors; and her documentation was up to date and concise.

40 Ms Davis asserted that Ms Franks had the difficulty of living and working in a small country town where she was known as "the palliative care nurse", resulting in community expectations which she handled in an ethical, sensitive and sensible manner.

41 Ms Davis deposed that palliative care patients cannot be over-serviced. Ms Saville, in her evidence, took issue with this proposition.

42 Ms Davis deposed that nurses working in palliative care need support from managers who understand the sensitive nature of the work and the difficulties often faced, which can challenge personal values, and the ethical dilemmas regularly encountered.

43 Ms Charmaine Koller was not called to give evidence, nor did she depose a statement or affidavit. Mr Evans tendered handwritten correspondence from Ms Koller to Ms Gerlinde Sonter dated 29 February 2004 (Ex 45). This correspondence detailed the difficulty and frustration Ms Koller experienced in the position of CNC at Gloucester. Ms Koller complained that issues were not raised directly with her by Ms Franks and Ms Johnston but raised as "complaints in team meetings". Ms Koller documented issues over available leave, noting that Ms Franks became "anxious" when informed that leave she had arranged was no longer available due to the relieving nurse taking a short term contract position elsewhere.

44 Ms Koller described tension between herself and Ms Franks and Ms Johnston, whom she complained took palliative care referrals directly rather than requiring general practitioners or clients to seek assistance through her as the CNC; and concerning an "intake" roster devised by Ms Franks and Ms Johnston without reference to her.

45 Ms Koller concluded:

I regret I've not been able to meet my expectations of objective change for the better and that my efforts to promote service excellence, support for staff and skill sharing have been in vain. As I said shortly after I commenced in this position at GCHC, the job as described was impossible to fulfil given the clinical demands and need to develop equitable team relationships as well as identify, challenge, report, and correct entrenched attitudes and unacceptable practices. Only with close managerial supervision and authority will the problems at Gloucester be rectified.

46 The subsequent investigation resulted in 19 specific allegations, detailed in exhibit 58.

47 The allegations against Ms Franks were investigated by way of interviews with staff and examination of records. The allegations fall into two broad categories. The first involves six allegations concerning interpersonal relationships between Ms Franks and her co-workers. The second involves 13 allegations concerning professional conduct and record keeping.

Allegations Concerning Interpersonal Relationships

48 The investigation report summary (Ex 58, folder 1) records that only two of the allegations were found substantiated.

49 The allegations not substantiated were:

§ It is alleged that you refer to Enrolled Nurse Pauline Hall as "that one" and that you do not allocate duties to Ms Hall.

§ It is alleged that your conduct at staff meetings is inappropriate with other staff commenting that you "attack the Community Health staff and their families"

§ EN Pauline Hall referred to Ms BH to you for assessment on 7 August 2003. It is alleged that you failed to attend the assessment.

§ It is alleged that you made the statement that Registered Nurse Jenny Willis is the "worst person in the world"

§ It is alleged that your work vehicle is often noticed at unrelated venues throughout the day including coffee shops.

§ It is alleged that on or around December 2003 you exerted pressure and pushed Ms Hall on her shoulder and made a statement "there is no fucking way that she (Tracey Hudson) is coming here"

50 The allegations held to be substantiated are expressed in the following terms:

§ It is alleged that you display aggressive behaviours such as not talking, no eye contact and inappropriate body language with other staff, including Ms Koller, Clinical Co-ordinator Gloucester Community Health. It is alleged that this behaviour followed the appointment of Ms Hudson to do Ms Koller's annual leave relief.

§ It is alleged that your inappropriate comments regarding Ms Koller Clinical Co-ordinator Gloucester Community Centre at the time of her appointment to the position. The alleged comments were that Ms Koller "would interfere with the clients and that there is a lack of clinical workload" for Ms Koller.

51 These allegations were substantiated despite a finding by the investigator that:

There is no direct evidence to support that Ms Franks made inappropriate comments such as "would interfere with the clients and that there is a lack of clinical workload" for Ms Koller.

Allegation Concerning Professional Conduct

52 The one allegation held to be substantiated in respect to professional conduct involving a failure to follow up on a palliative care client is expressed in the following terms:

It is alleged that in November 2003 you failed to follow up on a Palliative Care Client ...who you had arranged to visit. Your documentation in ... progress notes indicates that on 14 November 2003 you spoke with ... and arranged a home visit for 19 November 2003. There is no documentation of this visit nor of any follow up by yourself. Your next documentation is of a phone call to ... in March 2004 where you documented ...'s death.

[substantiated]

Allegations Concerning Record Keeping

53 Ten allegations were made concerning Ms Franks' failure to properly record client visits. These are:

§ Following an audit of your clients as well as your statistics, it is alleged that your documentation of numerous client progress notes and statistic keeping are not in line with Mid North Coast Area Health Service Policy. Examples of this are:

On 5 June 2003 your documentation in Mr FP notes state that you had a phone conversation with the client. Your statistics state that you had one (1) hour occasion of service with .6 travel time

On 6 June 2003 you documented in Mr FP notes that you attended a home visit with the client. Your statistics state that you had two (2) hours of service with .7 travel time.

On 10 June 2003 you documented in Mr FP notes that you attended a home visit with the client. Your statistics state that you had two (2) totalling two (2) hours of service with .2 travel time.

On 5 August, 8 August and 13 August 2003 your statistics state that you had one (1) hour occasion of service with Mr FP and .1 travel time per day. There is no documentation in Mr FP's history and progress notes to reflect these visits.

On 15 August 2003 you have documented a visit in Mr FP history and progress notes and your statistics do not reflect this visit.

On 7 August 2003 your statistics state that you had a one (1) hour occasion of service with Mrs MN. Your documentation in the client's notes state "House locked, unable to be heard by client/husband".

On 9 May 2003 Ms Hall documented in Mrs IA's history and progress notes that she had attended a home visit. Your last documented contact with Mrs IA was a phone conversation on 29 April 2003. Your statistics state that you had one (1) occasion of service of one hour with no travel time recorded. There is no documentation of this visit in Mrs IA's history and progress notes.

Your statistics for 16 July 2003 state that you had a one (1) hour occasion of service and .1 travel time to visit Mrs IA. Your documentation in Mrs IA's progress notes state that you had a telephone conversation with Bucketts Way Carers. There is no documentation re contact with Mrs IA.

On 19 May 2003 your statistics state that you had a one (1) hour occasion of service with .1 travel time to visit Mr FP. There is no documentation in Mr FP's history and progress notes of this visit. Previous documentation on 12 May 2004 state that Mr FP was to have further surgery in Newcastle on 19 May 2004.

Your statistics for 22 January 2004 and 23 January 2004 state that you had a three (3) hour visit with Mr FP. There is no documentation of any visit with Mr FP on 22 January 2004 and the documentation for 23 January 2004 does not reflect the clinical care or need for a three (3) hour visit.

Result of First Investigation

54 The outcome of the first investigation is set out in correspondence to Ms Franks dated 20 September 2004 in the following terms:

I refer to my letter of 27 August 2004 regarding the 19 allegations made against you, 13 of which have been substantiated.

I have considered your response and the purpose of this letter is to:

• Advise you of my final determination regarding evidence and conclusions of the investigations; and

• Advise you of the action I propose to take.

In view of the information obtained during the investigation I have determined your actions amount to misconduct and have not reached reasonable performance standards. In accordance with substantiated allegations 1, 2, 5, 7 and 10. Your actions constitute a breach of policy and procedure.

Based on the evidence of the current investigation and your previous employment record the action I propose to take is:

1 . You will receive a 1st level disciplinary warning. It is noted that you have previously attended Mid North Coast Area Health Service Inservice on Harassment and Bullying.

2. You will be provided with the Mid North Coast Area Health Service Code of Conduct as well as the Nurses Registration Board Code of Conduct for nurses in Australia.

3. You are updated on the Mid North Coast Area Health Service policy on Law and documentation for nurses.

4. You are required to participate in a performance management program.

5. Regular and random file audits are to be undertaken for a period of six (6) months.

· Primary Health Management will consider requiring you to work at Taree Community Health Campus whilst participating in the performance management program. This would provide you with supervision and mentoring on a daily basis.

It is an expectation that you will perform your duties and that your behaviour will be in accordance with MNCAHS policies and procedures. For your future reference, I enclose a copy of the MNCAHS Code of Conduct and the ANCI National Competency Standards for the Registered Nurse.

This letter constitutes a written first warning and, if such conduct or similar conduct, re-occurs then a penalty consistent with the next stage of the discipline process will be considered on that occasion.

A copy of this letter will be forwarded to your relevant line manager.

A copy of this letter will be placed on your personnel file.

55 Ms Franks accepted that she may have been remiss in documentation on occasion, but had never previously had any issue of patient care or inadequate documentation raised with her.

56 Ms Franks' evidence is that she did not contest the allegations as she was content to accept the outcome determined by MNCAHS, which she deposed was conveyed to her by Mr Hampson in the presence of Ms Johnston. Mr Hampson said:

I have told them that I am coming over to apologise to you and that if I had handled this matter it would never have got to this.

57 Ms Franks deposed that Mr Hampson suggested she contact the NSWNA. Her evidence is that neither she, nor the NSWNA, were given the detail and particulars of the allegations. Ms Franks' evidence is that Mr Hampson put to her and Ms Johnston that it was time to "draw a line in the sand and move on", which she accepted.

58 Mr Hampson deposed that Ms Franks asked that he personally supervise the remedial training in preference to Ms Saville as she thought Ms Saville was part of the "witch hunt" against her.

59 It is not disputed that the remedial training at Taree did not take place.

60 Ms Saville confirmed that Mr Hampson instructed her not to intervene or act in any way to implement the remedial plan for Ms Franks as he would undertake this personally.

61 Ms Saville deposed that she did not undertake periodic audit of Ms Franks' file notes, which she put was carried out by Anne Davis as Ms Franks' immediate supervisor in the Gloucester Area. Ms Saville acknowledged that Ms Davis had made no adverse comment of Ms Franks' notes subsequent to her initial warning.

62 It is Mr Hampson's evidence that a series of disparate circumstances prevented Ms Franks attending Taree for mentoring and remedial training, including Ms Franks falling ill, Ms Franks' mother suffering illness and Mr Hampson's transfer to the position of General Manager Lower Hunter Sector from May 2005. Mr Hampson deposed that mentoring of Ms Franks' performance and conduct continued to occur and Mr Nigel Lyons, Director Clinical Operations, continued to oversee the investigation as the senior management person.

63 Mr Hampson's evidence is that he was prepared to start afresh affording all employees a "clean slate", putting the events of the first investigation and discipline of Ms Franks and others down to experience.

64 The evidence of Ms Franks is that she heard nothing further in respect to her conduct or behaviour until 11 April 2005 when she was directed to a meeting with Mr Devine and suspended from duty effective immediately.

The Second Investigation

65 In early April 2005 further allegations of misconduct were made against Ms Franks leading to a second investigation. Having regard to the sensitive and personal nature of palliative care much of the transcript and relevant evidence is, by agreement of the parties, confidential.

66 The initiating events are set out in the evidence of Ms Sutcliffe (exhibit 57) who raised issues of concern with management.

67 Ms Lindsay Sutcliffe is a registered nurse, employed by the Respondent from September 2003 as a casual nurse, with employment as a full time Generalist Nurse from 30 January 2006.

68 Ms Sutcliffe deposed that she had undertaken palliative care work in the United Kingdom and that the only palliative care work she has undertaken in Australia was when relieving for Ms Franks at Gloucester.

69 Ms Sutcliffe deposed that she filled in for Ms Franks from 24 December 2004 to 19 January 2005 whilst Ms Franks was on annual leave, and again on 24 and 25 January 2005.

70 Ms Sutcliffe deposed that Ms Franks had 16 palliative care clients, 15 of whom Ms Sutcliffe visited in the period 24 December 2004 to 19 January 2005. Ms Sutcliffe deposed that she was unable to visit Mr C and that she made a forward booking in the work diary for Ms Franks to visit him and others on 20 January 2006.

71 Ms Sutcliffe deposed that on 20 January 2005 Ms Franks stated that she had visited Mr A. Ms Sutcliffe's evidence is that on 21 January 2005 she was in the office, having been instructed by the Acting Clinical Co-ordinator, Ms Christine Stewart, to catch up on her client paperwork as she had fallen behind. Whilst in the office Ms Sutcliffe deposed she overheard Ms Franks arranging to have another nurse take over all her other clients in order to attend to Mr A again that day. Ms Sutcliffe deposed that she became concerned when later on 21 January 2005 she heard Ms Franks on the telephone to Mr A's carers informing them that she was unable to visit that day.

72 Ms Sutcliffe deposed that in the following week she confirmed that the visit to Mr A did not take place on 21 January 2005 and then made arrangements for an enrolled nurse, Ms Brislane, to attend to some of Ms Franks' clients.

73 Ms Sutcliffe's evidence is that on 24 January 2006 she visited one of the clients for whom she had made a forward booking for Ms Franks to visit on 20 January 2005 and was told Ms Franks had not visited or made any contact to advise that the visit had been cancelled.

74 Ms Sutcliffe deposed that she visited Mr A on 24 January 2005 and was told by his carer that Ms Franks had not attended on 20 or 21 January 2005.

75 The evidence of Ms Sutcliffe is that Ms Franks refused to visit Mr C as she had arranged, but could not recall the reason given by Ms Franks.

76 Ms Sutcliffe deposed that on 7 April 2005 she overheard Ms Franks in discussion with Ms Stewart, their immediate manager, arranging to offload her work in order to attend the residence of Mr A, who had passed away that morning.

77 Ms Sutcliffe's evidence is that she approached Ms Stewart informing her that she would not take on Ms Franks' clients as in her view Ms Franks was regularly off loading clients to Generalist Nurses even when she had a quiet workload.

78 Ms Sutcliffe deposed that on 13 April 2005 she spoke with a family member of Mr A and was informed that Ms Franks had not attended the residence but had only made telephone contact.

79 Ms Sutcliffe deposed that she later consulted the clinical notes in which Ms Franks had recorded a home visit on 6 April 2005, the day prior to Mr A passing away, noting that she assisted in preparing the body for the undertaker.

80 Ms Sutcliffe deposed that while relieving Ms Franks on 14 April 2005 she visited Ms B who informed her that Ms Franks had not been to see her for months, which Ms Sutcliffe put was consistent with an exchange between herself and Ms B on 9 March 2005 when she had casually encountered her at a doctors surgery.

81 Ms Sutcliffe deposed that clinical records detailed visits by Ms Franks to this client on 8 March 2005 as one of seven visits from 2 March 2005 to 15 April 2005.

82 The evidence of Ms Sutcliffe details a number of other instances of exchanges with Ms Franks' clients whom she deposed informed her that Ms Franks had not been to see them despite clinical records showing that they were attended upon by Ms Franks.

83 The evidence of Ms Sutcliffe is:

§ On a date she cannot recall a client, Ms W, complained to her that Ms Franks had not visited her daily as promised after the commencement of chemotherapy, stating that Ms W informed her that she felt let down by Ms Franks.

§ On a date she cannot recall a client, Ms D, telephoned and asked for a palliative care call as she was expecting one. Ms Sutcliffe deposed that she checked clinical notes and that Ms Franks had noted that Ms D was not home when she called. This, Ms Sutcliffe put, is disputed by Ms D who, Ms Sutcliffe deposed, tole her Ms Franks made excuses not to attend.

§ On a date she cannot recall, Ms Sutcliffe saw a client, Mr HB, in the Gloucester township, who responded to her enquiry as to his health that: "I must be okay because the nurse never comes to see me". Ms Sutcliffe deposed that she checked clinical notes which showed that she had seen Mr HB herself on 13 January 2005 and had made a note for Ms Franks to visit him on 9 March 2005. Ms Sutcliffe's evidence is that clinical records show a visit by Ms Franks on 9 March and 23 March 2005 which she put is at odds with Mr HB's comments to her.

84 Ms Sutcliffe's evidence is that due to these complaints she reviewed files for Ms Franks' clients, noting that a Ms SM had not been visited for 6 months, Mr C for a period of 8 to 9 months and IA for over 12 months.

85 Ms Sutcliffe's evidence is that she became increasingly concerned that clients were not receiving care, ultimately reporting this to Ms Stewart, Ms Sonter, and Ms Saville, Programme Manager Generalist Care Services, who referred her to Mr Hampson. Mr Hampson requested she put her concerns in writing, resulting in a report of 10 April 2005 (Ex 57, attach. LS4) which became the trigger for the second investigation leading to the conclusion of Ms Franks' employment.

86 The second investigation was conducted by Mr Peter Devine of HNEAHS at the request of Mr Hampson who deposed that he sought a person experienced in the investigative process with no prior involvement with the Gloucester Community Health Service or staff.

87 Ms Sutcliffe was interviewed by Mr Devine on 12 May 2005, the transcript of interview is attachment LS5 to Exhibit 57.

88 Ms Sutcliffe also deposed that she was made aware of the Motor Vehicle Policy and was required to read and sign off to confirm her understanding of it and the necessity for accurate records as nurses may be responsible for any traffic infringements when in control of vehicle.

Motor Vehicle Records

89 It is alleged that Ms Franks did not complete motor vehicle usage records in accordance with policy requirements.

90 Exhibit 29 is a vehicle running sheet for the period 4 January 2005 to 31 January 2005 for the vehicle identified as Fleet No 70. Exhibit 45 consists of a vehicle running sheet for the period 19 December to 22 December 2004 for the vehicle identified as Fleet No 70; and for the period 1 March 2005 to 18 March 2005 for the vehicle identified as Fleet No 61.

91 Each document contains multiple entries by a number of staff, including Ms Franks.

92 Ms Franks' evidence is that she often obtained a vehicle from the car pool and parked it adjacent to the Community Health Centre for use as required, returning it to the car pool at the end of the day.

93 The vehicle allocated to Palliative Care is described as a station wagon with a tow bar which Ms Franks deposed was often "borrowed" for use by maintenance staff to collect supplies or take rubbish to the local tip. Ms Franks put that there were occasions when she obtained the vehicle, parked it at the health centre, but did not use it herself at all. On those occasions Ms Franks would complete the running sheet to account for kilometres driven that day by others.

The Evidence In Support of Ms Franks

94 Ms Dianne Aird has been employed in the capacity of registered nurse for approximately 40 years. Ms Aird has worked as a Palliative Care Nurse Specialist and has relieved as Clinical Nurse Consultant with the Southern Section of the then MNCAHS, which encompassed the Gloucester Area, during 2001.

95 Ms Aird deposed that she had worked with Ms Franks off and on for about 12 years and had undertaken home visits with her. Ms Aird's evidence is that she never had reason to question the ability or professionalism of Ms Franks, deposing that she found Ms Franks to be a professional, caring person who related very well with her clients and was a strong supporter of her clients' rights.

96 Ms Aird deposed that the method of working in a small community was different to a large metropolitan area as the relationships are closer and there is less structure and back-up, noting that there is not a medical member in the Gloucester Palliative Care team. (TR 13/3/06, p14)

97 Ms Aird responded to enquiry by Mr Evans in re-examination that a client's clinical file was not to leave the offices of the Gloucester Community Health Care Service. Ms Aird deposed that this caused some difficulty in that the notes are not available during consultation, or when making notes or remembering detail for later transfer to the official record. Ms Aird put that only brief notes, if any, are made while with the client, and that it can be difficult to remember all detail at the end of the day.

98 The evidence of Ms Aird is that the motor vehicle available to the Palliative Care service is a shared vehicle used by many people.

99 Ms Meryl Blanchard is employed by the Respondent as a Social Welfare Worker at Gloucester and worked with Ms Franks. Ms Blanchard provided a statutory declaration (Ex 49) and oral evidence and was subject to cross examination (TR 13/3/06 pp 18-30).

100 Ms Blanchard's evidence confirms that she was approached by Ms Franks for assistance with a client and that a joint home visit was arranged and took place on 14 March 2005. The visit was not recorded in the Respondent's Primary Health and Intended Care Information System by either Ms Franks or Ms Blanchard.

101 Ms Blanchard's evidence is that she did not record the event as it was a one-off visit and, in her judgement, it was not efficient to register the patient as a client. In cross examination Ms Blanchard deposed that this was not unusual.

102 Ms Blanchard's evidence is that she was not given any training in respect to record keeping, putting that she was shown some documents to complete which she believed were inappropriate for a person such as herself in a social welfare role as they dealt with medical issues. Ms Blanchard deposed that she spoke to her regional program manager then based in Macksville on the mid north coast, resulting in the development of ten reporting codes for statistical purposes which were more relevant to her work, which allowed her to code one-off clients without completing full computer registration. Ms Blanchard deposed that she did not record all visits in her diary.

103 Ms Blanchard deposed that she assisted the client in question on an intermittent basis, putting that there was minimal contact as the client was also assisted by the Neighbourhood Centre.

104 Ms Blanchard put that the person was subsequently registered as a client of hers at the request of the palliative care counsellor who was aware that Ms Blanchard had attended with Ms Franks. Ms Blanchard deposed that the palliative care counsellor, Ms Judith Connery, asked her to "keep an eye on the person" over a time when both Ms Franks and Ms Connery were to be on leave.

Evidence For The Respondent

105 Mr Peter Devine was employed by the HNEAHS in the position of Director, Corporate Support for the CARE Network; and Senior Human Resources Manager.

106 The evidence of Mr Devine is that he was asked to examine lower north coast sector units of the MNCAHS to be merged with the New England Area Health Service and Hunter Area Health Service to form the HNEAHS.

107 In his affidavit Mr Devine put (Ex 31 para 2):

2 I was tasked to provide assistance with disciplinary matters to the Manning Sector as they had several matters of a complex nature and the new Area Health Service wanted an assessment of any exposure to claims revolving around disciplinary actions, medical terminations and underperformance of staff in the newly acquired sector.

108 Mr Devine deposed that Mr Dennis Lawrenson, Human Resources Manager of the Manning Sector, requested he investigate issues at Gloucester.

109 Mr Devine's evidence is (Ex 31, paras 5,6, and 7):

5 I decided that before I dealt with staff morale and an overall human resources review of the centre I asked if anyone had reviewed Ms Franks and Ms Mavis Johnston

6 Management stated they had meant to but the exigencies of the restructure and amalgamations of the AHS plus sick leave of both Mr Hampson and Ms Franks had not allowed it to proceed. I was informed that there were unconfirmed rumours:

a. That Ms Franks spent all her time in the office and didn't appear to go out.

b. A person is alleged to have been discharged from hospital and died prior to our seeing them even though time from discharge to death was two or three months and our procedures stated that they are to be seen within one week of discharge.

c. People who Ms Franks liked were seen daily or several times a week whilst others ... ... hadn't been seen for eight months or more.

7 I asked management who provided the rumours and had they raised them with Ms Franks? I was concerned about malice being a motivator behind the rumours. If the Gloucester Community Health Centre was that dysfunctional and unhappy, malice could be a prime motivator for these rumours.

110 Mr Devine deposed that he was shown a copy of an investigation report prepared by Ms Louise Saville, Co-Ordinator of Nursing Services Community Health, and Ms Sue Van Doornik, Human Resource Adviser Primary and Extended Care dated 23 August 2004 (the first investigation, Ex 58 Folio 1).

111 Mr Devine deposed that this investigation was predicated by the resignation of Ms Koller, citing bullying and harassment by Ms Franks and Ms Johnston and that she could not continue to manage them (the first investigation).

112 In cross-examination Mr Devine confirmed that the disciplinary actions arising from the first investigation had not been implemented.

113 Mr Devine's evidence is that he became concerned that something was seriously wrong and formed the opinion that patients might be at risk and he had a duty of care to investigate further.

114 Mr Devine deposed that he was concerned that the unit at Gloucester was seriously dysfunctional.

115 Mr Devine pursued his own investigation, concluding on 11 April 2005 that Ms Franks be suspended whilst his investigation continued.

116 The evidence of Mr Devine is that he resolved to undertake a preliminary investigation by desktop analysis of available records and reports.

117 Mr Devine's evidence is that he asked Ms Saville to examine appropriate records and report to him.

118 The evidence of Mr Devine is that he did not inform Ms Franks or the NSWNA of the desktop audit as:

I was concerned that the unit at Gloucester was seriously dysfunctional and this type of investigation into a person recently investigated, would be almost fatally disruptive to the delivery of patient care.

119 Mr Devine deposed that:

12. In the end I decided that on balance the patients safety was to be considered paramount and unless I could see a clear and reasonable danger to procedural fairness and/or natural justice by conducting the preliminary desk-top analysis, then it should go ahead. If there were any concerns from this analysis then I resolved that Ms Franks and her union would need to be informed immediately of our actions.

13. I met with Ms Saville and tasked her to provide to me an assessment of the work statistics, car log sheets cross referenced to those statistics, any information about the past investigation that needed examination in this investigation (i.e. to check whatever was found last time and look at similar circumstances this time), any other information that may be of concern to the Area Heath Service (AHS).

120 The evidence of Mr Devine is that the initial report from Ms Saville convinced him that there were irregularities that went beyond malicious rumour, giving him reasonable cause to suspect "employee misconduct and/or malpractice and possibly professional misconduct."

121 Mr Devine resolved to secure patients' records and subsequently attended Gloucester on Saturday, 9 April 2005 when, he put, the relevant records were secured under his supervision.

122 On Monday 11 April 2005 Mr Devine attended Gloucester with Mr Hampson and informed Ms Franks verbally that she was suspended on full pay. The suspension was subsequently confirmed in writing by Mr Tim Mooney, Acting General Manager of the Manning Sector.

123 The evidence of Mr Devine is that he then directed Ms Saville to assist him with the co-ordination of an analysis of work records, statistics and medical records relevant to Ms Franks, and to arrange visits to 3 clients identified as A, B and C, which took place on 2 May 2005.

124 Mr Devine deposed that:

I interviewed various other staff to find out about Ms Frank's whereabouts and work patterns. Of this Ms Sutcliffe's evidence was compelling. It confirmed most of what we had found in the analysis and investigation up till then and provided more information regarding not seeing various patients.

125 Mr Devine's evidence is that he also sought an independent assessment of the veracity of the accusation that the medical records were inadequate. Mr Devine requested Ms Nerida Cain, CNC Palliative Care, Generalist Care Services, Taree Community Health Centre, to undertake this task. Ms Cain, provided her report, dated 5 May 2005, to Mr Devine (Ex 58, Folio 8, attach. A). Ms Cain was not called to give evidence.

126 The report from Ms Cain states:

§ Many incidents of over-servicing. Visits where phone calls may have been appropriate.
§ Very long visits where the patient had been stable for some time and remains stable.
§ Consecutive visits with several mention of symptoms but no mention of attempts to resolve these, though other staff attempts to resolve the same symptoms with one phone call.

• Continues to visit the home when patient not home instead of phoning next time to check first if someone home.

• Notes read like long counselling sessions. This is misuse of resources when counsellors are available.

• Patient visited daily and mention of husband attending to personal needs and dressings after being educated re: same. Visits continued daily with mention of nurse attending to personal care and dressings.

• Nine consecutive hospital visits to patient who has daily visits from sister. Developmentally delayed patient becoming very dependent of. Palliative Care nurse and hospital staff not given the opportunity to develop a relationship with the patient.
§ Palliative Care should act as consultants only when patient is in hospital.
§ One patient's nausea not followed up by Palliative Care nurse for seven days.
§ Suggestions made to patient many times to contact GP re: symptoms that should have been followed up by nurse contacting GP with full picture of patient's situation.

• Daily visits for one month even though notes suggest wife managing with care.

• Visited patient's home and was told patient was in hospital. Quoted oxygen saturation level and temperature in notes.

• Nurse told of patients terminal phase and did not follow up until she was told that the patient was in hospital where she visited daily. This patient may have been able to die at home if given Palliative Care support at home.

• Patient's notes reflect a total reliance on the Palliative Care nurse and no relationship established with hospital staff or GP.
§ Daily visits for massage could have been cut down with more education given to wife who was quite happy to attend to same.
§ Symptoms not dealt with promptly, causing frequent visits over longer periods.
§ Four hours spent at the bedside and with family during and after the dying process, suggests possible acopia of the nurse.
§ Patient discharged from service even though he developed many symptoms and wife became distressed.

127 Mr Devine deposed that he accepted the report from Ms Cain as correct because it was backed by other clinicians.

128 Mr Evans cross-examined Mr Devine in respect to conclusions to be drawn from the report of Nerida Cain. Mr Devine replied (TR 30/05/06 pp28-36):

A. Nerida Cain was tasked by me to examine the medical records of the client and to report to me about the quality of the medical records. So I'm not sure that I understand your question. This was specifically about Ms Franks' medical records in Gloucester.

Q. All right. The first dot point, many instances of over servicing, visits where phone calls may have been appropriate. On what basis did she make that judgment?

A. Well, I'm sorry, Mr Evans, I'm not Nerida Cain. She's the clinical nurse consultant, she's a specialist in the field, a highly regarded specialist in the field of palliative care that was sent to Taree to do that job and these are her opinions as to the medical records.

Q. But they are subjective from her point of view, aren't they?

A. I suppose any report on somebody else's work is subjective.

Q. What I mean by that is comments such as that are not open to challenge if you don't know the basis that it's made from?

A. Well, I think - well, yes, I could probably agree with that, Mr Evans, but a person in palliative care would be able to answer these types of comments about their medical records. You and I might have difficulty in understanding the basis of these statements, but a nurse who has to undergo training about their documentation and also a nurse who's recently received in the first warning a copy of the mid north coast policy on the law and medical documentation would be able to respond. And in fact Ms Franks did respond in the fact finding about many of these issues and disagreed with them.

Q. And you disagreed with them?

A. No, no, Ms Franks disagreed with them.

Q. Did you accept the valid reasons she gave?

A. Some of the reasons I accepted, and in fact, in the report to the clinical care, the question of note taking, from memory I dismissed. I dismiss it because of the - not because I don't agree with these statements or this isn't the position of the Area Health Service, but Ms Franks' defence was that Ms Davis never raised any of these types of issues with her and without contacting Ms Davis, that was the end of the inquiry. I had to accept Ms Franks' evidence on that.

Q. But you didn't, did you, because you made quite a point of that in the report to the HCCC about the level or degree of documentation based on Anne Davis' comment that the reports were bland?

A. No, what I did was I said that without going to Anne - can I get the report, Mr Evans, and read you what it says? I have it in my bag. May I proceed?

Q. Yes.

A. Point 6, which is on page 11 of 14. Now, noting this is a report to clinical governance, not a disciplinary report, even though it follows a disciplinary format. So there are two different things there. Ms Franks answered this allegation on pages 25 to 28 of the transcript of the fact-finding. "In this matter I have formed an opinion that whilst the current CNC has found her notes to be substandard and without the capacity of interviewing the previous CNC, I can form no other opinion than whilst the notes are substandard, management cannot confirm that Ms Franks was given any indication of this by her previous CNC." So I suppose I was wrong in what I was saying to you before, I did form an opinion that they were substandard.

129 Mr Evans further questioned Mr Devine in respect to the affidavit of Ms Anne Davis, the CNC preceding Ms Koller:

EVANS: Q. Can you go to point 8, Mr Devine.

A. Yes.

Q. This affidavit was done after the earlier disciplinary hearing and you say in your evidence that you believe that Ms Davis, Anne Davis was sent over to Gloucester to go through her work with Ms Franks. Now, she makes the point quite clearly, her documentation was up to date and concise. Now, do you accept then that that is the correct position?

A. No, I accept we have conflicting evidence of two senior clinicians about medical records.

Q. So it's only really the person that has the medical records that can make that determination, isn't it?

A. I don't understand that question.

Q. Well, the person reviewing them, it's in the eye of the beholder, isn't it?

A. No, it is not. There are requirements on the professional registration of nursing about how they are supposed to report, there was an Area Health Service policy that I remember seeing in the letter of warning about what is supposed to be included. So it's not just in the eye of the beholder. There are certain guidelines and certain things that we would require a registered nurse or any other nurse for that matter, but registered nurses more so to put into medical records.

Q. So where is the standard, where is the written direction that everything must be contained within this report?

A. I think it would be within the Australian nursing standards and there would be a New South Wales Department of Health circular, and I have memory that I saw a mid north coast policy document that outlined the types of things that must be put into medical records.

Q. So then it's not discretionary for what a nurse puts in the report?

A. Look, it's not discretionary to the point that you can't - I'm sorry, I'm out of my depth here, Mr Evans, I'm not a clinician and I'm not a nurse. I can only say to you that my understanding, my understanding is that you should not write a medical record that does not contain certain medical information that could be used to continue the care of the client if the person who wrote the medical record wasn't there. So to be more concise, you don't write a story, the person looked nice. You might say, has a fever, the fever is 110, et cetera, et cetera, those sorts of things. But I'm not qualified to go much further into that.

Q. But you did accept Ms Cain's recommendation that that was correct, that her recommendation was correct?

A. Yes, because it was backed up by other clinicians.

... ...

Q. And [IA's] name has appeared frequently in this. Would it surprise you that Dr L said, "Furthermore, I have seen Maree's work with a frail member of my own family. Her care was outstanding and appreciated by us all". Is that symptomatic of a person who doesn't give care?

......

A. Mr Evans, on every person that I spoke to who Ms Franks serviced appropriately, they spoke glowingly about the service that they received from Ms Franks. The [carers for Mr A] spoke, even on Friday, [the carers] again told me what a good nurse they thought Ms Franks was. So you're asking me a question and the only way I can answer it is, is it symptomatic, well, I don't know, because the difficultly I've got is that I actually accept that Ms Franks is a good nurse when she provides the service that she's supposed to. What I don't understand and what I couldn't find out and what I've never been able to get to the bottom of, why some people were serviced and others weren't. I wanted that quality of care as a representative of the Area Health Service, if I could have got that quality of care that Ms Franks clearly elicits from some people right across the board, we'd have a very very happy outcome.

Q. So you're not doubting her professionalism or competence?

A. Well, I wouldn't go that far, Mr Evans. I - because what you're asking me there is a very broad statement. I have serious reservations about somebody who can not fill out paperwork, not fill out medical records, not do a whole range of things and then not see clients that she is the case manager for when it would normally be expected of a case manager in those circumstances to see those patients on return from leave. And I also have serious concerns about what Ms Franks was doing with the 40 hours a week when she only had 12 or 14 patients. So I can't comment - I can't give Ms Franks a clean bill of health as a practitioner. What I can do is say those people who I spoke to who were serviced by Ms Franks were glowing in their comments, similar to the doctor's comments, an exceptional nurse. The others didn't hold that opinion.

Q. Did you ever think to ask Ms Saville as the manager of Ms Franks, what Ms Franks was doing, if she had any objections or she had any concerns?

A. Yes, I asked Ms Saville that.

Q. And did Ms Saville respond that she was satisfied or what did she respond with?

A. No, she said she didn't know what Ms Franks was doing either.

Q. But she was her manager.

A. That's exactly right, and as I pointed out, the way we run the palliative care service, unless you actually link the patient records or interview the patients or have another clinician complain about the service, the paperwork goes through and we assume that everything is fine.

Q. Well, who was the manager that was then supposed to be managing Ms Franks' day to day activities?

A. I suppose Ms Saville. It would be Ms Saville as the generalist care nurse.

Q. And she was based where?

A. In Taree.

Q. So would Ms Franks have had a manager in Gloucester?

A. No, there was a clinical coordinator, who would be at the same - if you're talking the bureaucracy, would be the same rank as Ms Franks, so they were another RN, I think.

Q. Would it surprise you then to know that there was no clinical coordinator in Gloucester, that there was the odd reliever from Taree?

A. No, it wouldn't surprise me to know that, because that was one of the problems that was highlighted, that they couldn't get anybody to go from Taree or anywhere else in the mid north coast sector to work at Gloucester. That was one of those symptoms that we were concerned about.

Q. Did you take that into account in all your deliberations?

A. Mr Evans, what is the - yes, I took it into account because the clinical coordinator, as far as I know, does not supervise the staff member as you would understand in a ward where the nurse unit manager would supervise the registered nurses. The clinical coordinator, my understanding, and Louise Saville or Ken Hampson would be better to answer this question, my understanding is that the clinical coordinator did just that, they coordinated the clinical service.

130 Ms Franks was then required to attend a "fact finding" interview with Mr Devine and Mr Hampson on 24 June 2005.

131 The conclusion of the investigation and associated discussions with relevant persons are recorded by Mr Devine at paragraphs 31-36 of Exhibit 31 in the following terms:

31. Some time later I then reviewed the draft fact-finding transcript. I had a conversation with Mr Hampson and I told him I had formed my opinion on the balance of probabilities and that I would be recommending dismissal, as Ms Franks' answers were unacceptable. I explained to Mr Hampson that Ms Franks answer about the Bridges made no sense and was ridiculous considering the Bridges' would clearly remember who was at their house on the day of the death (some weeks prior, see Folio 3). I also told him that in the face of first person evidence to answer like that brought into question just about every answer Ms Franks provided. He asked me what I meant and I said that if you lie once when you're caught with proof how do we know you don't lie at every occasion when there is no witness?

32. This discussion took place as part of my role was to also raise local management's understanding of the disciplinary process and the thinking that had to be done to determine if a person was to be recommended for dismissal. In this vein, during this time I trained 60 to 70 managers in the disciplinary process and the use of the manual at Folio 11. I did not see any harm in this discussion as Mr Hampson was the senior manager and any dismissal recommendation would proceed to the Chief Executive through him and he was entitled to question the actions and thinking of the investigators in his area.

33. I told Mr Hampson it would take several weeks to write the report due to my arbitral and other disciplinary appointments.

34. Prior to my completion of the report Mr Whaites of the Nurses Association rang. He asked me what the recommendations would be; I told him that without the signed transcript and any alterations that Ms Franks might make I couldn't give a definitive answer. He told me he had read the transcript and was at the fact-finding and there was nothing wrong with it. He pressed me to tell him my decision. I told him I would be recommending dismissal and referral to both the Health Care Complaints Commission HCCC and the Nurses and Midwifery Registration Board (NMRB). Mr Whaites asked me if I would let Ms Franks resign and I told Mr Whaites "we can't stop her. But there is no way I will contemplate pulling the referral to HCCC and the NMRB, what she does or what you advise her to do is not our problem. She will be dismissed and referred as soon as I write the report."

35. Mr Whaites told me he would tell Ms Franks it was in her interest to resign and I told Mr Whaites that I was not offering a deal, threatening her to resign or be dismissed or doing anything to ask for the resignation and that I "couldn't give a continental" about what Ms Franks did I wouldn't discuss the referral. Mr Whaites responded by saying he would not seek to negotiate a non-referral nor would he expect me to entertain such a request. The discussion was a typical industrial relations discussion between two practitioners who were saying things for the record so that we both could recall them at a later stage - it was clear to me both of us were going through our prearranged scripts. He, to ensure the union could never be implicated in a non-referral negotiation and me to ensure I was not going to be accused by the union of constructively dismissing Ms Franks.

36. Mr Whaites and I discussed when she might resign, as I wanted to know if I had to cancel appointments in my diary to write the report. He told me a date and I said something to like "fair enough". I then received Ms Franks' resignation with her signed copy of the transcript. This is at Folio 9.

132 In cross-examination Mr Devine deposed that Ms Sutcliffe had reviewed Ms Franks' clients and resolved all issues of service.

133 Mr Evans took Mr Devine to the Disciplinary Policy and Procedure (Exhibit 31, Folio 10) which relevantly states:

For the disciplinary process to be effective, it must be simple, practical to use and based on the principles of procedural fairness. It must be clearly and concisely communicated to all staff to ensure they have an understanding of their rights and responsibilities.

134 Mr Devine put that the "usual" disciplinary procedures were circumvented by Ms Franks' resignation.

The Evidence of Ms Louise Saville

135 Ms Saville commenced nursing in 1974 and has been a Registered Nurse from 1977. Ms Saville is the Program Manager Generalist Care Services Lower Mid North Coast Cluster and during the second investigation she was the Acting Manager Community Health Services. Ms Saville was the line management representative in the first investigation.

136 Ms Saville's evidence described the request from Mr Devine in March 2005 that she assist with a desk top audit of work records and statistics as a preliminary investigation into the rumours surrounding Ms Franks. Ms Saville sought assistance from Ms Sonter.

137 Ms Saville deposed that on briefing Mr Devine on the desk top analysis he sought access to patient records to cross reference. Ms Saville deposed that she informed Mr Devine of previous investigation problems and the stress on staff, resulting in arrangements by approval from Mr Hampson to remove the records on Saturday 9 April 2005.

138 Ms Saville deposed that on the afternoon of 9 April 2005 she, Ms Sonter and Mr Hampson examined the records and found what she described as:

serious issues confirming the non-visiting of certain clients, errors of record keeping and some client notes not being consistent with the work statistics of Ms Franks, and the poor quality of notes.

139 Ms Saville then deposed (Ex 42, paras 11, 12):

11. Mr Hampson rang Mr Devine in our presence and I overheard Mr Devine asking Mr Hampson if he had concerns regarding patient safety, Mr Hamspon asked Ms Sonter and I and we agreed we had, Mr Devine advised that Mr Hampson should attend Gloucester Community Health Centre on Monday first thing and Mr Devine and he would suspend Mr Franks on the Monday morning.

12. I was then tasked by Mr Devine to provide assistance and to coordinate the analysis of the work records, statistics and medical records regarding Ms Franks. I was specifically asked to advise in detail on the following:

a. Analysis of whether or not leave taken by Franks was a valid excuse for not seeing clients - analysis had to address two areas - time between leave and policy of case management i.e. was she professionally obliged to see patients on taking over management of them. Mr Devine was particularly concerned that this aspect of the investigation received detailed consideration.

b. Assessment by a CNC from Hunter or New England on Ms Franks' clinical notes and actions regarding patients. This was in the end provided by Nerida Cain as she was recently from the Hunter. Mr Devine insisted that someone other than a person who knew Ms Franks' be asked to assess these notes.

c. An explanation in easily understood language so he could follow the statistics, patient records and any other relevant evidence to determine if any misconduct appeared to have occurred. This part of the investigation had to walk Mr Devine through the patient records and any other records that were not available during the desktop analysis.

140 Ms Saville analysed statistics, progress notes, hospital records and motor vehicle records relevant to Ms Franks, concluding that the following concerns emerged which she collated in Folio 4 attached to her affidavit of evidence.

1. Client Service

Item 6 with Folio 4 details the Leave taken and service of Client assigned to Ms Franks for the months of January, February and March 2005.

2. Discrepancy between statistics, progress notes and hospital records.

3. Motor Vehicle Records

141 The evidence of Ms Saville details further discussions with management and continual investigation of issues. Ms Saville deposed that the allegations were put to Ms Franks who was then offered all available access to records to prepare an explanation.

142 Ms Saville put that these matters were not raised with Ms Franks in the investigation phase as the allegations were of the same nature as previously found proven but now made by persons not associated with the earlier issues.

143 The evidence of Ms Saville is that Mr Devine and Mr Hampson interviewed Ms Franks to hear her response to the allegations, and subsequently she was asked by Mr Devine to review Ms Franks' answers, which, in her analysis, were incomprehensible or non-responsive.

144 Ms Saville deposed that in early July Mr Devine informed her that he had formed the view that Ms Franks should be dismissed from employment and that some time later that Ms Franks had resigned on the advice of the NSWNA, which surprised her as the issues were currently part of an investigation process in accordance with the NSW Department of Health Policy Directive for the management of the disciplinary process (Ex 58, Vol. 1, Folio 10).

145 The evidence of Ms Saville is that in September 2005 she was instructed by Mr Devine to prepare a response to Ms Franks' reply charting each response to the relevant evidence (Ex 58, Vol. 1, Folio 4). Ms Saville deposed that Mr Devine informed her that this was to be undertaken as Ms Franks had filed an unfair dismissal claim, and that the information would be required by the Clinical Governance Unit for referral of Ms Franks to the Nurses and Midwives Registration Board and the Health Care Complaints Commission.

146 Ms Saville deposed that Christine Stewart and Lindsay Sutcliffe reported to her that medication for certain clients was not adequately managed by Ms Franks as the clients reported pain and an improvement in medication once Ms Franks had been replaced.

147 In cross-examination Ms Saville put that she had known Ms Franks for a period of some 8 years prior to the first investigation and that in the 5 years she had been her manager she had no reason to doubt Ms Franks' performance and regarded her as a happy and positive contributor to the team at Gloucester. This is supported by a formal performance appraisal undertaken by Ms Saville on 23 September 2003 (Ex 52) which is consistent with earlier appraisals by a Mr Howard Cleaver in 1998 (Ex 54), and by Ms Saville in 2000 (Ex 53).

148 The 2003 performance appraisal by Ms Saville notes Ms Franks as: Outstanding, Highly Skilled in Attendance and Punctuality, and: More Than Satisfactory/Performance Consistently Good, in all other 9 categories with: Organisational Knowledge - Customer Focus as Satisfactory/Performance Consistently Adequate, and on the customer focus aspect the comment recorded as: "Excellent Knowledge of Customer Focused Service".

149 Ms Saville qualified the appraisal in Ex 52 as being conducted by interview of Ms Franks of approximately one hour in which she held no reason to disbelieve Ms Franks.

150 Ms Saville was pressed by Mr Evans to consider the positive comments made by her in Ex 52, which Ms Saville stood by on the basis of all the information available to her at the time.

151 Ms Saville deposed that on reconsideration, having regard to her investigation of complaints, she regarded the quality of Ms Franks' work extremely poor against a volume of approximately half that of other staff, putting that she now felt misled by Ms Franks in respect to job knowledge and conduct when undertaking the 2003 assessment.

The Evidence of Mr Kenneth Hampson

152 Mr Kenneth Hampson is the General Manager for the Lower Mid North Coast Cluster of the Health Service and during the time of investigation of complaints against Ms Franks he was Manager for Community Health Services.

153 Mr Hampson deposed that in February 2005 he sought assistance in investigation of complaints by Ms Sutcliffe, Ms Saville and others at Gloucester that a culture of bullying and harassment had developed and that clients were not being seen as required.

154 Mr Hampson deposed that he had received reports from Human Resources and private psychologists he had engaged to address the problems at Gloucester including team building exercises. Mr Hampson's evidence is that from this, the efforts of Wendy Stow, a Human Resources employee of the Respondent, and his own unsuccessful efforts in late 2004, he concluded that the situation was impossible unless structural changes were made.

155 Mr Hampson deposed that he was alarmed by rumours of unsatisfactory client care by Ms Franks which he put he could not pin down. In March 2005 Mr Hampson instructed Mr Devine to conduct an investigation. Mr Hampson's evidence is that (Ex 56, paras 3, 4):

3. In March I met with Mr Devine and outlined my concerns in general with the community health centre and also my concerns about rumours surrounding Ms Franks. Mr Devine asked me if management had raised these issues with Ms Franks and I informed him we hadn't as they revolved around patient care and Ms Franks was the subject of a previous investigation that had placed her on a warning about patient care.

4. Mr Devine had some difficulty in how a person could be found to have conducted misconduct of this type and was still in health employment. He also was quite concerned about why Ms Franks had not been referred to the Nurses Midwifery Registration Board by the other Area Health Service, regarding these findings.

156 Mr Hampson deposed that he did not access any of the information or report of the first investigation in order to address the future without impediment.

157 Mr Hampson deposed that he reviewed complaints put verbally and subsequently in writing from Ms Sutcliffe. Mr Hampson deposed that some staff who had reported difficulties to him would not pursue the issues formally for fear of bullying and harassment in retribution.

158 Mr Hampson's evidence is that particular staff refused to return to work at Gloucester and the psychologists he engaged to assist refused to undertake further work there.

159 Mr Hampson described Gloucester as a difficult place to manage, particularly due to the resistance to change by Ms Franks and Ms Johnston, both of whom had over 25 years service.

160 Mr Hampson deposed that he was surprised that Ms Franks was evasive and vague in the interview with himself and Mr Devine on 15 June 2005, putting that he would expect a person undertaking the work subject to investigation would be sufficiently aware of circumstances so as to offer direct explanation.

161 In cross examination Mr Hampson conceded that he was not aware at the time that Ms Franks was severely affected by a bout of flu and that her mother had recently passed away.

162 In cross examination Mr Hampson confirmed that he had received complaints against Ms Sutcliffe which on investigation proved to be a domestic situation concerning a neighbour who was also an employee of the Respondent.

163 The preliminary conclusions of the second investigation were expressed in correspondence to Ms Franks dated 11 April 2005 in the following terms (Exhibit 58, Folio 7):

Suspension From Duty - Full Pay

This letter is to confirm Peter Devine's verbal advice that you have been suspended on full pay for the following reasons:

1. Irregularities and inconsistencies in your patient records, car log sheets, work allocation diary and workload statistics.

2. The possible falsification of both Area Health Service records and/or patient records.

I will write to you shortly to organize a meeting. Until this interview is held and management has deliberated on your circumstances you are not to go into your workplace or contact any person who may be considered a witness to events or hold relevant information on this issue without my consent. Further, you are directed not to enter the Gloucester Community Health Centre for any reason without my express approval and under direct supervision of an officer I so nominate. You are also directed not to ask for, or seek to obtain, from any staff member, any records whether they are patient or otherwise regarding your employment unless I authorise such provision.

The staff at Gloucester Community Health Centre has been advised to abide by these requirements and any breach of these directions shall initiate disciplinary action, up to, and including dismissal action, to any staff member involved and yourself.

I suggest you contact your union or legal representative.

I am available to discuss this matter or you can contact Peter Devine, Authorised Investigation Officer, Director, Corporate Support, CARE Network on 0407 666 891.

If you wish to access the Employee Assistant Program please contact Dennis Lawrenson, Acting Human Resources Manager on 6592 9417.

164 Mr Evans challenged the investigative process, which he contended was pursued unfairly and aggressively by Mr Devine; and the findings of the investigation, which he put are not supported by the evidence.

165 Mr Evans also sought to attack the credibility of Ms Sutcliffe's evidence.

166 Mr Sebbens objected to the basis of attack upon Ms Sutcliffe, putting that her conduct was irrelevant to determination of this matter.

167 The objections of Mr Sebbens were upheld. The credibility of Ms Sutcliffe is not material to these proceedings. Ms Sutcliffe reported to management on matters of concern to her. This did no more than excite further interest in the conduct of Ms Franks, which was then subject to investigation and conclusion.

168 These proceedings are to be determined on the veracity of that investigation and the substance of conclusions made by management, in which Ms Sutcliffe had a diminishing involvement and no role in the ultimate decision, which was made on the basis of clinical records; motor vehicle records; other business records and management's conclusion as to discrepancy between the explanation of Ms Franks against direct inquiry to clients and their carers.

169 The second investigation resulted in a direction to Ms Franks, in correspondence of 30 May 2005 (Ex 12) in accordance with a NSW Department of Health Circular (2001/112), to attend a "fact finding interview" to be conducted by Mr Devine and Mr Hampson in Taree on 15 June 2005. Mr Devine informed Ms Franks that (Ex 12):

I have conducted an initial investigation and have found the following initial matters that we wish to discuss with you. These matters revolve around several issues such as falsifying patient records, dereliction of duty, patient neglect, falsification of work and attendance records, misuse of an Area Health Service (AHS) car and the failure by you to see patients when required to do so as part of your duties. These initial matters are:

1. Not seeing the following patients as per instructions and guidelines for the frequency of visits and care for palliative patients.

• [Mr C] (Attachment B)

• IA (Attachment B)

2. Falsifying AHS attendance and work records regarding the visit to [Mr A] on the day of his death which we were told by the family did not happen; seven (7) visits recorded to [Ms B] which she informs us did not happen during the period of 2 March 2005 until 31 March 2005.

3. Falsifying medical records for the instances outlined in point 2 above.

4. Pre-arranged visits for Palliative Care Clients on 20 and 21 January 2005 where the car log sheets indicate client visits between 9:00 to 15:00 hours on 20 January 2005 travelling 21 kilometres, and 9:00 to 15:30 hours travelling 31 kilometres on 21 January 2005. No evidence of client visits or contact to cancel these pre-arranged visits.

5. Falsification of medical, attendance and work records for the following people whom you indicated you visited in hospital, yet no indication of the visits are in the hospital records or the work you allegedly undertook.

• EN
• BH
• AS

6. Poor patient record keeping not of a standard required by a registered nurse. I note you were a Clinical Nurse Specialist in Palliative Care and dropped back at your request. (See attachment A)

7. Intentionally misleading management about your whereabouts and conduct of your duties when you were allegedly not doing your assigned duties.

8. Possibly behaving in a manner that has brought about adverse patient outcomes for patients involved in the palliative care process.

9. Failure to follow procedures and guidelines in relation to patient care and case management of palliative care patients.

10. Failure to assist other nurses when you did not have work to do, or intended not to do work that you had and they were busy. Thus providing an environment destructive to team work and causing difficulties for the AHS in providing adequate and timely care to general community health patients.

I note that you are already the subject of a final warning about matters substantially similar to these and issued within the last ten (10) months.

You should clearly understand that if these matters are found to be substantiated as they are described in this letter and you have no acceptable mitigating circumstances the AHS will move to dismiss you and refer you to either or both the Nurses Registration Board and / or the Health Community Complaint Commission for action including deregistration to occur.

So that you can prepare your defence you may contact Louise Saville on ... ... to arrange access to records and this will be provided at Taree Community Health Centre.

170 Mr Sebbens submits that there was no confirmation from the Respondent concerning findings in respect to the allegations as Ms Franks resigned by letter dated 14 July 2005.

Clinical Records

171 Mr Sebbens put extracts from the MNCAHS Primary Health and Extended Care System, Service Contact Statistics to Ms Franks and questioned her in respect to the information relevant to her.

172 Exhibit 27 is an extract from Service Contact Statistics for the period 1 May 2004 to 23 March 2005. This document records 21 service activities for the client identified as EN, including 12 as an outpatient, six of which were home visits; and eight as an inpatient of the hospital. Exhibit 27 also includes progress notes completed by Ms Franks on 28 September 2004, 29 September 2004, and 30 September 2004; the hospital's history and progress notes, compiled by nursing staff, and its "Parenteral Drugs Regular and P.R.N" records.

173 The allegation against Ms Franks is that the hospital records do not support her attendance upon EN recorded in her work statistics, or the work she put she undertook in pain management as the patient advocate.

174 Examination of the hospital records in exhibit 27 reveals that these are completed by various ward staff, including a student nurse. The hospital records for 29 and 30 September 2004 do not record a visit by Ms Franks, however, a visit by a relative on 30 September 2004 is documented.

175 There is no direct evidence from any of the ward staff to offer any view as to whether they would or would not record a visit by a palliative care nurse.

176 The record of attendance by the relative is in association with information from the relative of sustenance provided at home, and appears on examination more a reference to the source of the information then applied to treatment, than a record of attendance only.

177 Exhibit 28 provides information in respect to a client identified as AS. The statistics show 12 service activities for AS including two hospital visits, firstly on 20 September and again on 21 September 2004. Ms Franks completed progress notes of each visit, also included in exhibit 28.

178 Hospital records contained within exhibit 28 include entries from various nursing staff. Examination of those records leads to the conclusion that reference to family visits is in the context of patient reaction and communication between staff and family of progress. No evidence is brought from hospital staff to assist with further analysis.

179 Exhibit 26 contains the records for a client identified as BH which follow a similar pattern to EN (Ex 27) and AS (Ex 28). The difference is that within the hospital's notes in exhibit 26 there is a reference to a visit by "family, friends and Pall Care nurse" on 23 September 2004. The palliative care nurse is not identified.

180 The statistics in exhibit 26 show attendance upon BH in hospital on eight occasions, commencing with two occasions on 23 September 2004. Further attendance is recorded in the statistics on 24, 27, 28, 29 and 30 September 2004 and 5 October 2004. Hospital records of 29 September 2004 show:

RN Maree Franks to be notified of "B" possibly going home on gate leave and she may be able to ensure any equipment needed is in place at the time.

181 There is also a record to a family conference on 30 September 2004 in relation to BH but no reference to Ms Franks' attendance.

182 There is no evidence of any arrangement for palliative care nurses to record their attendance in the hospital record of a patient, or any arrangement to sign into a ward when visiting.

183 Exhibit 19 includes the progress notes of IA and records Ms Franks logging 12 minutes for a telephone contact concerning client IA in which it was established that IA had been admitted to hospital. Ms Franks put that the 12 minutes logged included the time taken in the phone call and subsequent statistical and progress notes records. The statistical records put the telephone call on 4 February 2005, the clinical notes put the telephone call on 1 February 2005.

184 The Respondent asserts that the attention provided to IA by Ms Franks as her case manager was inadequate. This client had been assessed on 16 August 2004 as unstable and, in accordance with the palliative care protocol, should have been attended once every three weeks. A review of Exhibit 19 shows that the client was not visited at all by Ms Franks from 7 December 2004 to 7 February 2005. The only attention recorded by Ms Franks was attendance at the hospital on 4 February 2005, Ms Franks being unaware that IA had been discharged the previous evening.

185 It is alleged that Ms Franks was derelict in her duty in failing to visit IA at all over a period of eleven months. The Respondent argues that if the assessment had changed from unstable to stable in that time a visit every six to eight weeks would be required to maintain an ongoing check on progress to determine the most appropriate treatment to manage symptoms.

186 A review of Exhibit 19 shows that between 7 December 2004 and 7 February 2005 IA was attended to on seven occasions, other than the involvement of Ms Franks in the telephone call and hospital visit, by either Ms Sutcliffe, Ms McIntosh, Ms Stewart, Ms Brislane or Ms Hall.

187 The Respondent puts that it is no defense for Ms Franks to assert that other staff attended to the patient's needs, and that failure by Ms Franks is a breach of her duty to exercise appropriate care and skill in the performance of her duties (see Harmer v Cornelius (1858) 5 CB(NS) 236 at 246-247).

188 These assertions are refuted by the Applicant. Mr Evans submits that the Respondent accepts that Ms Franks is only responsible when on duty. It is put on behalf of Ms Franks that the case was managed appropriately, having regard to the fact that Ms Franks was on extended leave during the relevant period, and in that time was relieved by a registered nurse competent to manage the Respondent's clients.

189 Mr Evans notes that there were 31 visits to IA by the Respondent's staff, including three by Ms Franks. Mr Evans submits that the selective use of statistics by the Respondent to infer lack of service by Ms Franks to this client and others does not stand the test of scrutiny and is unfair.

190 Mr Evans further submits that IA's daughter is a registered nurse and that the treating doctor was a family member. At annexure E to exhibit 10 the treating doctor states:

I have seen Maree's work with a frail member of my own family. Her care was outstanding and appreciated by us all.

191 The doctor was not required for cross examination, nor is his statement challenged.

192 Mr Evans submits that the assertion by the Respondent that the admitting staff member becomes the permanent case manager for a client/patient is unsupportable. Mr Evans put that RN Robyn McIntosh was the admitting staff member in the case of Mr C, though it is Ms Franks who is brought to account as the case manager; and having regard to absence from work on leave and other reasons, which are sometimes lengthy, the notion of a permanent case manager is impractical.

193 Exhibit 20 includes the progress notes for Mr C together with service contact statistics. These documents record that Ms Franks did not visit this patient at all in January 2005. Ms Franks deposed that she was on annual leave for some of January 2005, then returned for a period prior to taking further leave in February 2005. Ms Franks deposed that relief staff attended to Mr C.

194 It was put to Ms Franks that Mr C had complained to relief staff that Ms Franks had not been to visit for some six months. Ms Franks deposed that this complaint had not been put to her at the time it was made, putting that the first she had heard of it was when Mr Sebbens raised it in cross examination.

195 The progress notes tendered within exhibit 20 completed by Ms Franks record 25 contacts from July 2004 to March 2005 for Mr C by Ms Franks and other staff. As noted elsewhere in evidence Mr C undertook a trip to Europe with family during this period.

SUBMISSIONS


196 Mr Evans submitted that the allegations made against Ms Franks arise from rumour, innuendo and gossip, and are not supported by the evidence.

197 Mr Evans put that the Respondent wanted to remove Ms Franks and Ms Johnston from Gloucester as they were resistant to change sought by management.

198 Mr Evans refuted the assertion that Ms Franks engaged in a practice of bullying and harassment, submitting that there is no evidence of such behaviour. Mr Evans put that in asserting that Ms Franks attended an in-service course in bullying and harassment, the Respondent failed to inform that all staff had participated in this program. Mr Evans submitted that the allegations of bullying and harassment are further diminished by the fact that the Respondent took no action to investigate in the five years it is said the behaviour occurred.

199 Mr Evans submitted that the allegations of potential neglect also fall down due to lack of evidence. Mr Evans put that there is not one patient complaint documented by the Respondent.

200 Mr Evans submitted that the so-called patient complaints came from one witness based on comments made in the township, none of which were subject to action of any type. The complaint was not put to Ms Franks, who deposed that the first she heard of it was in cross examination by Mr Sebbens in these proceedings.

201 Mr Evans submitted that the Respondent had accepted and condoned the record keeping practices employed by Ms Franks for many years without comment or correction and could not rely on assertions of discrepancy to terminate employment.

202 Mr Evans put that it was unfair of the Respondent to interrogate Ms Franks in respect to the detail of her actions on a particular day months earlier, then to penalise her for failing to recall.

203 Mr Evans relied upon the evidence of Ms Saville that there is no specific policy statement for palliative care. Ms Saville's evidence is that clinical notes for palliative care should comply with the Nurses' Registration Board's requirements.

204 Mr Evans noted in his submission that Ms Franks was never cautioned, counselled or subject to remedial action in respect to her clinical notes. Mr Evans submitted that if there be a criticism it went no further than a comment that Ms Franks' notes were "bland". Mr Evans submitted that this is in contrast to the statutory declaration of Ms Davis, Ms Franks' previous supervisor, that Ms Franks' documentation was up to date and precise.

205 Mr Evans was critical of management, submitting that to the extent that Gloucester was dysfunctional, it arose from management inaction.

206 Mr Evans noted that Ms Franks' annual employee appraisals contained nothing adverse to her, the reports stating that she was an excellent employee and a skilled and experienced practitioner.

207 Mr Evans submitted that the criticism of Ms Franks arises not from her conduct but as a consequence of a lack of management and management systems.

208 Mr Evans submitted that the evidence of Mr Hampson and Ms Saville is distinguished by their refusal to take responsibility, preferring to ascribe culpability elsewhere.

209 Mr Evans submitted that management's failure to raise issues of performance directly with Ms Franks, or to ensure that a performance management program was in place and being utilised, suggested that the issues were non-existent and certainly not as serious as now suggested.

210 Mr Evans inferred that the conduct issues were amplified and exaggerated by regional management in reaction to the inventory of outstanding disciplinary matters pursued by Mr Devine.

211 Mr Evans submitted that the evidence of Ms Sutcliffe should not be accepted, putting that Ms Sutcliffe's motive was to move from casual to full-time employment.

212 Mr Evans submitted that the evidence of Ms Sutcliffe lacks any corroboration and is vague on detail and disingenuous, demonstrated by Ms Sutcliffe's propensity to refer to herself in the third person in reports and accusations made against Ms Franks.

213 Mr Evans submitted that the failure of the Respondent to bring evidence from Ms Gerlinde Sonter and the clients and family who were said to have complained or been interviewed by Mr Devine should draw a Jones v Dunkel (1959) 101 CLR 298 inference.

214 Mr Evans relied upon the decision of his Honour Deputy President Sams in Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 wherein his Honour said:

393. All the applicants were dismissed for alleged serious misconduct. While most of the applicants have secured alternative employment, the damage to their reputations would be, of itself, a sufficient basis for demonstrating the hardship they have faced, both personally and for their families. Their distress and shock at what had happened was all too evident to me from the compelling evidence they gave in the witness box. I refer to what I said in Hill and Department of Juvenile Justice [2000] NSWIRComm 128.

In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14:

It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten, IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia, IRC5224 of 1998, 10 September 1999.

The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

215 Mr Evans further submitted that the Respondent had condoned the conduct of Ms Franks, such as it was.

216 Mr Evans referred to Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 wherein the principle of condonement is set out and applied.

217 Mr Evans submitted that Ms Franks was denied procedural fairness in that the Respondent's disciplinary policy was incorrectly applied as Ms Franks was not given the detail of charges against her. Mr Evans submitted that Ms Franks was constrained by patient confidentiality in the interview process and that it was quite proper for her to refer any questions concerning patients to the relevant treating medical practitioner.

218 Mr Evans relied upon Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; George Albert Byrne & Anor v Australian Airlines Ltd (1995) 69 ALJR 797; and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

219 Mr Evans submitted that failure to give prior or timely warnings is a matter which may be properly taken into consideration, referring to Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines Ltd; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education (1999) 92 IR 32; Antonakopoulos v State Bank; Buckman v Burdekin (1998) 85 IR 415; and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

220 Mr Evans sought reinstatement of Ms Franks to her employment with the Respondent. Mr Evans submitted that in effecting reinstatement the Commission should order no loss of wages to Ms Franks other than an allowance for the delay in conclusion of these proceedings due to his own ill health.

221 Mr Evans submitted that reinstatement is available and should not be considered impracticable.

222 Mr Evans submitted that a reluctance on behalf of the Respondent and the possibility of discomfort were not barriers to practicality of reinstatement. To support this submission Mr Evans relied upon Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and Hollingsworth v Police Commissioner (No 2) (1999) 88 IR 282.

Submissions of the Respondent


223 Mr Sebbens submitted that, on the material available to the Respondent at the time Ms Franks resigned, there was a proper basis for the termination of her employment.

224 Mr Sebbens put that Ms Franks failed to attend to and adequately care for some of the patients entrusted to her as a palliative care nurse, the result being denial of best possible care which placed the health and welfare of those patients at serious risk.

225 Mr Sebbens put that such failure strikes at the heart of the Respondent's statutory duties pursuant to the Health Services Act 1997 and those as an agency of the Crown, and its duty of care to patients as a health care provider.

226 Mr Sebbens submitted Ms Franks' failure to adequately discharge her duties further compromised the general duty of care, in tort, held by Area Health Services as found in Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 and Mills v Central Sydney Area Health Service [2002] NSWSC 728.

227 Mr Sebbens submitted that each of the allegations put against Ms Franks had a proper basis in fact.

228 The allegations are:

Not Following Palliative Care Guidelines


229 Mr Sebbens submitted that the evidence supports a finding that Ms Franks did not follow the guidelines (Ex 2) in respect to Mr C, whom he submitted was diagnosed as unstable on 16 August 2004, which would require a visit every three weeks.

230 Ms Franks visited with another officer on 29 July 2004. Another officer visited Mr C on 24 August 2004. Mr C was not seen again by any officer of the Respondent.

231 Ms Franks was on annual leave for periods in January 2005, however, when she was not on leave she did not visit Mr C. Mr Sebbens conceded that the records show Ms Franks attempted to contact Mr C by telephone on eight occasions and got no answer

232 Mr Sebbens submitted that there was no other attempt to visit or make arrangements with Mr C and he questioned the suggestion from Ms Franks that Mr C was being seen by other clinicians. Mr Sebbens submitted that, as a case manager, the assumption that the client was seen by others is no answer, simply an abdication of responsibility.

BH

233 This client was assessed as unstable on 16 August 2004 requiring a visit every three weeks, which was accepted by Ms Franks.

234 Mr Sebbens put that Ms Franks conceded that this client was not seen at all from 1 May 2004 to 23 March 2005.

235 Mr Sebbens put that while Ms Franks deposed that she visited this client in hospital on 4 February 2005, the records indicate that Ms Franks enquired on that day and was informed that BH had been discharged the previous evening.

236 Mr Sebbens refuted an explanation by Ms Franks that the classification of BH may have changed over the period from May 2004 to March 2005, putting that if this were the case and the diagnosis was amended to stable she should have been seen once every 6 to 8 weeks, which did not occur.

237 Mr Sebbens submitted that Ms Franks accepted that the health of patients could vary on a weekly basis and that a regular and ongoing assessment of progress, which can only be done comprehensively by personal attention, is necessary to determine the most appropriate treatment and to manage symptoms.

238 Mr Sebbens submitted Ms Franks' failure to adhere to the proper visitation schedules and failure to visit clients for extended periods was indicative of a failure to meet her duty of care to patients, and a breach of duty to her employer to exercise appropriate care and skill in performing her duties. (see Harmer v Cornelius (1858) 5 CB (NS) 236 at pp246,247).

239 Mr Sebbens submitted that the allegations of falsifying records of visits to Mr A and Ms B were clearly established on the evidence.

240 Mr Sebbens relied on the evidence of Mr Devine that the relatives of Mr A who had cared for him informed Mr Devine on two occasions that Ms Franks had not attended on the day Mr A passed away, and that they had only spoken to Ms Franks on the telephone on 6 April 2004, the day prior to Mr A's passing.

241 Mr Sebbens refuted the assertion that the relatives of Mr A may be denying the visit by Ms Franks due to embarrassment or concern over the manner of Mr A's death.

242 Mr Sebbens submitted that:

33. The visitation statistics for the Applicant record 40 home visits to Ms B for the period 29 July 2004 to 23 March 2005 (Exhibit 21). The Applicant sought to corroborate one of the visitations to Ms B through Meryl Blanchard, a social welfare worker on 14 March 2005.

34. The joint visit with Ms B is not recorded in Ms Blanchard's diary or notes (Exhibit 6). The entries into the history and progress notes for Ms B do not make mention of Ms Blanchard. There is also no time recorded in the statistics system for any visit by Ms Blanchard to Ms B on the relevant date.

35. Ms Blanchard stated she was not certain about the date of the joint visit. However, the work statistics and clinical notes for Ms B, the Applicant and Ms Blanchard show no common visits at all around the relevant date.

36. Subsequent visits by Ms Blanchard to Ms B are made in the history and progress notes, and also time statistics for the visits recorded.

37. Despite Ms Blanchard's assertion that she would not have entered time or made any entry into the history and progress notes as Ms B was a new client, the statistics in fact show a previous visit by Ms Blanchard to Ms B on 5 August 2004 showing she was not a new client for Ms Blanchard as at 14 March 2005 (Exhibit 8, T, Blanchard, 13 March 2006, pp 25-26).


243 These were visits arranged by Ms Sutcliffe whilst Ms Franks was on leave.

244 Mr Sebbens submitted that the mileage claimed was inconsistent with the distances Ms Franks was required to travel to make the pre-arranged visits. Ms Franks recorded travel of 21 kilometres from 9am to 3pm on 20 July 2005 and 3 kilometres between 9am to 3pm on 21 June 2005 for home visits, which Mr Sebbens submitted is inconsistent with a visit to Mr A who resides 50 kilometres from Gloucester.

245 Mr Sebbens further relies upon the evidence of Ms Sutcliffe who deposed:

§ that patients had complained to her that the visits she had arranged were not made; and
§ that she had overheard Ms Franks offloading patients to another nurse (identified as Litia) so she could visit Mr A, then overheard Ms Franks on the telephone advising Mr A that she could not attend for a home visit.

246 Mr Sebbens submitted that Ms Franks was in breach of the Respondent's Motor Vehicle Policy (Ex 4) which requires completion of vehicle log sheets. Mr Sebbens submitted that the evidence established Ms Franks was aware of the Motor Vehicle Policy and the need to complete accurate reports.

247 Mr Sebbens submitted that, on the evidence, failure by Ms Franks to make home visits as required is a dereliction of duty, and that making false and inaccurate motor vehicle records is dishonest and a breach of her duty of fidelity and good faith on her part.

Falsification of Medical Attendance and Work Records

248 Mr Sebbens submitted that in her work records Ms Franks reported 12 hospital visits to Mr N between 21 September 2004 and 11 October 2004 while the medical history and progress notes reveal no basis for attendance by a palliative care nurse.

249 The hospital's history and progress notes state that Ms Franks attended upon Mr N on only one occasion, being 30 September 2004.

250 Mr Sebbens acknowledged the evidence of Ms Saville that a palliative care nurse has a role as an advocate for the patients in relation to medication, pain management and related matters.

251 The clinical notes made by Ms Franks record the commencement of medication "MS Contin 10mgs" on 30 September 2004. The hospital records show treatment with "MS Contin" from 24 September 2004.

252 Mr Sebbens submitted that:

(e) The inferences which can be drawn from the evidence are that either:

(i) the Applicant did not visit Mr N on the dates which she had recorded in her statistics, therefore falsifying her attendance records and clinical notes;

or

(ii) In the alternative, the Applicant was not performing the duties expected of her when visiting Mr N by having failed to address pain management until 30 September 2004, and then only in a passive way to record that the taking of that drug had commenced

45. Ms Franks has therefore acted dishonestly, breaching her duty of fidelity and good faith owed to the Respondent; or acted incompetently and/or negligently in not performing the duties expected of her.

253 Mr Sebbens submitted that in her work statistics Ms Franks reported eight visits to Ms H whilst in hospital from 23 September 2004 to 30 September 2004 (Ex 26). Hospital records show only one visit for the period, recorded as being 23 September 2004, which states: "visited by family, friends and Pall Care today". Mr Sebbens noted that hospital records report visits by family and friends, including on 22 September 2004 and 29 September 2004, but no reference to palliative care despite the assertion of Ms Franks that she visited for over an hour on occasion.

254 Mr Sebbens submitted that the inference open to the Commission is that notations made by ward nurses record all significant events and absence of any further records of Ms Franks attending upon Ms H supports a finding that the visits did not occur and that Ms Franks had falsified her work records.

255 Mr Sebbens submitted that Ms Franks' work records show two visits to Mr S whilst he was in hospital, on 20 and 21 September 2004 (Ex 28). Hospital records do not show any visits by Ms Franks to Mr S among the various records made by doctors and ward nurses of visits by family.

256 Mr Sebbens submitted that in the absence of a finding that Ms Franks made false reports, it must be held that the record keeping practiced by her was not of a standard required or expected of a palliative care nurse. Mr Sebbens put that the poor standard of records creates substantial difficulties for the Respondent's other officers in being able to provide a co-ordinated health care service.

257 Mr Sebbens submitted that poor record keeping is not an issue that should have to be addressed in respect to a person of Ms Franks purported seniority and experience.

258 Mr Sebbens submitted that the evidence discloses that Ms Franks misled management and colleagues as to the nature of her work and location on 20 and 21 January 2005, which he put was a breach of her duty of fidelity and good faith owed to the Respondent.

259 Mr Sebbens further submitted that Ms Franks' conduct involving Ms B, Mr C, Mr S and Ms H and the events of 20 and 21 January 2005 was a failure to provide adequate care creating a risk that the patients involved would suffer adverse health outcome, which he put was a failure of a fundamental duty warranting dismissal.

260 Mr Sebbens submitted that this failure by Ms Franks to comply with the policy of her employer constituted misconduct with the added adverse outcome of putting additional responsibility and workload on other staff which was unacceptable.

261 Mr Sebbens submitted that subsequent to the cessation of Ms Franks' employment further issues of conduct were discovered which supported the termination of her employment. To support this submission Mr Sebbens referred to Bankstown City Council v Paris [1999] NSWIRComm 585; Foster and Woolworths Limited [2000] NSWIRComm 208; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; Concut Pty Ltd v Worrell (2000) 103 IR 160; Hollingsworth v Commissioner of Police [1999] NSWIRComm 240.

262 Mr Sebbens submitted that in the course of these proceedings Ms Franks accepted that she had visited the residence of Mr A on 6 April 2005 and had been informed that he had placed all available medication into his feeding tube resulting in a fatal overdose.

263 The evidence of Ms Franks is that she intended to inform the treating general practitioner, Dr Brown, however, allowed time for Mr A's carer to make the report. Ms Franks deposed that after her suspension from duty she decided not to make a report to Dr Brown (TR pp 21-22, 29/5/06).

264 Mr Sebbens submitted that the decision by Ms Franks not to report to Dr Brown was a serious failure to comply with the Respondent's policies and directions for reporting a death considered suspicious, which is an obligation not removed by suspension from employment.

265 Mr Sebbens submitted that this deliberate omission by Ms Franks gives rise to concern pursuant to a breach of section 12B of the Coroner's Act 1980 (NSW), or alternately caused Dr Brown to wrongly report cause of death in breach of the Coroner's Act 1980.

266 Mr Sebbens submitted that by withholding information from Mr Devine during the course of his investigation and offering false information concerning the death of Mr A, Ms Franks actively hindered the investigation, which he put is an act of serious and wilful misconduct.

267 In addressing s 88(b) of the Act: "whether the employee had an opportunity to make out a defence", Mr Sebbens submitted that there was no lack of procedural fairness.

268 Mr Sebbens submitted that the investigation was fair and objective, noting that the dismissal review was undertaken by Ms Nerida Cain who did not work at Gloucester, adding that Ms Cain and Ms Franks were unknown to one another.

269 Mr Sebbens submitted that the evidence is that the allegations were put to Ms Franks in writing on 30 May 2005 and she was afforded access to records on 7, 9 and 10 June 2005 to prepare a defense or explanation prior to the interview on 24 June 2005, to which she was accompanied by a support person nominated by her; ie Mr Whaites of the NSWNA.

270 Mr Sebbens submitted that:

"If it is found that there are faults in the procedure, this is a matter which the Commission may take into account but it is not, of itself, determinative of a finding of unfairness: Burke v McGirr (1995) 87 IR 54; Foster and Woolworths Limited (unreported, No IRC 6385 of 1999, Sams DP, 27 October 2000)."

271 Mr Sebbens put that:

"The gravity of the misconduct of the Applicant will overshadow procedural considerations: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 467-468; Byrne & Anor v Australian Airlines (1985) 185 CLR 10."

272 Mr Sebbens submitted that Ms Franks was given adequate warning by the process and outcome of the first investigation which dealt with similar matters, so as to satisfy s 88(c) of the Act.

273 Mr Sebbens submitted that there were clear standards of behaviour required, which were known to Ms Franks, which she failed to meet.

274 Mr Sebbens submitted that the requirements were detailed in the MNCAHS Code of Conduct, the ANCI Code of Professional Conduct of Nurses in Australia, and the Nurses and Midwives Registration Board ANCI National Competency Standards for a registered nurse. The MNACHS Code of Conduct includes the following requirements:

(a) Behave honestly and with integrity;
(b) Make sure you carry out your work as efficiently, economically, and effectively as you are able, and that the standard of work reflects favourably on NSW Health;
(c) Follow the policies of NSW Health, whether or not you approve of these policies; and
(d) Deal with issues or cases consistently, promptly and fairly.

275 The Nurses and Midwives Registration Board ANCI National Competency Standards for a registered nurse require that:

(a) Nursing interventions are performed following adequate and accurate assessments;

(b) Appropriate procedures, legislation regulations are observed;

(c) Documentation conforms to legal and agency requirements;

(d) Assessment is approached and organised in a structured way;

(e) A range of data gathering techniques including observation, interview, physical examination and measurement are used in obtaining a nursing history;

(f) Plans are based on an ongoing analysis of assessment data;

(g) Plans of care are clearly documented;

(h) Resources are utilised effectively and efficiently in providing care;

(i) Information is systematically recorded in an accessible and retrievable form;

(j) Written statements are prompt, accurate, comprehensive, current and include time and date; and

(k) Own work distribution is prioritised in response to changing needs of individuals and groups.

276 Mr Sebbens submitted that Ms Franks acknowledged that she was aware of these requirements and accepted that they applied to her work.

277 Mr Sebbens submitted that:

The Respondent was entitled to take the previous warning into account (John Lysaght Australia Limited and Federated Ironworkers' Association of Australia, New South Wales Division and Ors (unreported, Matter 259 of 1972, Sheppard J, 14 September 1972). The warning within the recent employment history of the Applicant is indicative of a pattern of conduct or behaviour which is consistent with the reasons for which she was ultimately dismissed (New South Wales Nurses' Association (on behalf of David Harding) and Western Sydney Area Health Service [2002] NSWIRComm 35 per Sams DP at [230], [241]).

Practicality of Reinstatement Or Re-employment

278 In addressing s 88 (d) of the Act - the nature of the duties of the applicant immediately prior to dismissal - Mr Sebbens submitted that if Ms Franks was successful in her application, compensation is the appropriate remedy, not reinstatement or re-employment.

279 Mr Sebbens submitted that the substantial delay in concluding the matter occasioned by the length of time taken by the Applicant's representative to file written submissions, mitigated against reinstatement or re-employment as practical options as the Respondent could not be expected to hold a vacancy open for that length of time.

280 Mr Sebbens submitted:

83. The position previously held by the Applicant has now been permanently filled, and there are no vacancies with the Respondent in similar roles. These factors make reinstatement or re-employment impracticable: Tarello v Kemlex Pty Ltd (t/as First Impressions) (unreported, IRC, NSW, Connor CC, 1275 of 1993, 27 August 1993); Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) v Urban (1998) 81 IR 341.

84. If the Applicant is reinstated or re-employed, the Respondent submits that back-pay should not be ordered for the full period between the resignation of the Applicant and any reinstatement or re-employment order. This would have the strange result that the Respondent would be ordered to pay wages exceeding the maximum amount which may be made under section 89(5) of the Act: Employers' Federation of New South Wales v Greco (1993) 51 IR 451. The Respondent submits that any back pay be limited to the period from the resignation of the Applicant to the original date upon which submissions were to have been submitted on behalf of the Applicant. Alternatively, any back-pay may be reduced by an appropriate percentage, such as 50%: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at [129].

85. Further, any compensation order made to the Applicant, if she is successful in her application, must be limited by section 89(5) of the Industrial Relations Act 1996 (NSW).


281 Mr Sebbens relied upon the decision in MacLeay Valley Health Service v Jeffree (1994) 58 IR 187 as authority that, having regard to the nature of the duties and loss of trust and confidence of the Respondent, neither reinstatement nor re-employment are practically available.

282 Mr Sebbens relied upon the evidence of Mr Hampson, Ms Saville and Ms Sutcliffe, that trust and confidence in Ms Franks had been lost and that re-establishment of the working relationship would be unworkable.

283 Mr Sebbens further relied upon the evidence of Mr Devine in cross examination (TR p 35, 30/5/06):

Q. So you're not doubting her professionalism or competence?

A. Well, I wouldn't go that far, Mr Evans. I -because what you're asking me there is a very broad statement. I have serious reservations about somebody who can not fill out paperwork, not fill out medical records, not do a whole range of things and then not see clients that she is the case manager for when it would normally be expected of a case manager in those circumstances to see those patients on return from leave. And I also have serious concerns about what Ms Franks was doing with the 40 hours a week when she only had 12 or 14 patients. So I can't comment - I can't give Ms Franks a clean bill of health as a practitioner. What I can do is say those people who I spoke to who were serviced by Ms Franks were glowing in their comments, similar to the doctor's comments, an exceptional nurse. The others didn't hold that opinion.

284 Mr Sebbens relied upon the decision of Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 in which the Full Bench of the Federal Court said (pp191,192) :

Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.

90. This approach was accepted by a Full Bench of the Commission in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282.

91. The Applicant's serious failings in the discharge of her duties bring this case within the category where the life (or quality of life) of terminally ill patients in the Respondent's case depends on the employee's reliability. The Respondent has a well founded basis for its doubts about the Applicant's reliability.

285 Mr Sebbens submitted that the Commission should consider the fact that the Respondent was misled during the course of its investigation when assessing the fairness of the Respondent's actions; and that failure to comply with reporting requirements and hindering the investigation provides grounds upon which the Respondent may now rely as reasons for termination of employment.

286 Mr Evans submitted that there is no impediment of impracticality to the reinstatement of Ms Franks.

287 Mr Evans relied upon the judgment of the Full Court (Wilcox CJ, Marshall and North JJ) in Perkins v Grace Worldwide (1997) 72 IR 186, and applied in Hollingsworth v Police Commissioner No 2 (1999) 88 IR 282; CCH Australia Ltd v Bowen (1998) 79 IR 206; and Oswald v New South Wales Police Service (IRC 4130 of 1997, unreported), to support his submission that mere discomfort of the employer is not sufficient to establish impracticality of reinstatement.

288 Mr Evans seeks reinstatement without loss of earnings subject to reasonable allowance for the delay in conclusion of proceedings due to his illness. In making this submission Mr Evans put that, had the employer implemented a performance management system, Ms Franks would not have been forced into the events giving rise to these proceedings.

289 Mr Evans submitted that reinstatement to the palliative care role is not sought by Ms Franks. The application is for reinstatement to Gloucester Base Hospital as a Registered Nurse.

290 Mr Evans submitted that Ms Franks was not responsible for the delay in proceedings which were occasioned by his poor health. Mr Evans emphasised that Ms Franks sought and obtained casual employment as a registered nurse in Taree, some 75 kilometres from Gloucester, requiring a 150 kilometre round trip on each engagement

291 Mr Evans submitted that in undertaking this work Ms Franks has maintained her high level of skills as a registered nurse and mitigated damages.

292 Mr Evans submitted that the application is less concerned with loss of earnings than restoration of employment, putting that this is open to discussion between the parties having regard to the delay and Ms Franks' earnings from casual work.

293 Mr Evans refuted the submission seeking to connect the filling of the position held by Ms Franks with the delay in proceedings, submitting that, had the matter been concluded in less than six months from the termination of employment, the Respondent had by then already filled the position.

294 Mr Sebbens submitted that Ms Franks could not be regarded as a witness of credit and her evidence should not be preferred.

295 Mr Sebbens submitted that Ms Franks provided inconsistent versions of events concerning Mr A and Ms B in the fact finding interview, in her written statements tendered, and in her oral evidence; altering her position to cover otherwise obvious misconduct on her part.

296 Mr Sebbens submitted that Ms Johnston accepted that she would benefit if the disciplinary action against Ms Franks and herself were cast in doubt, thus her evidence suffers from bias and should not be preferred.

297 Mr Sebbens further submitted that Ms Johnston and Ms Aird were involved in the events surrounding the allegations against Ms Franks and accordingly their evidence should be given little or no weight.

298 Mr Sebbens submitted that the statutory declarations of Ms B, Ms Meryl Blanchard and Ms Stephanie Colquhoun were not subject to cross-examination by the Respondent as none of the deponents were called by the Applicant. Mr Sebbens put that failure to call these witnesses should draw a Jones v Dunkel inference that any evidence of these witnesses under cross-examination would be unhelpful to the Applicant's case.

299 Mr Sebbens further submitted that the statutory declarations of Ms Blanchard and Ms Colquhoun concerned the preparations of Ms B's statutory declaration, submitting that they are hearsay and not relevant to any facts in issue in the proceedings and should therefore be given little or no weight.

300 Mr Sebbens refuted the assertion by Mr Evans that the inference from the principle enunciated in Jones v Dunkel be drawn from the fact that the Respondent did not call any patients as witnesses. He put that no such inference should be drawn where the Respondent has specific obligations under s 19 of the Health Services Act which requires that:

...protection of a public health organisation's patients and clients ... for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff.

301 It is Mr Sebbens' submission that the Commission should not draw any inference in circumstances where the Respondent had this statutory duty, the witnesses were not under the control of the Respondent and were equally available to the Applicant to be called under summons.

302 Mr Sebbens put that the onus rests on the Applicant to establish that the intervention of the Commission is warranted: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.

303 Mr Sebbens noted that the Applicant was not summarily dismissed for serious and wilful misconduct. Whilst the Commission has ruled that the events surrounding the Applicant's resignation amounted to a constructive dismissal, this does not result in there having been a summary dismissal and the onus therefore does not shift to the Respondent to make out the fact of serious and wilful misconduct: Ryan and Anijes Pty Ltd t/as Anita Villa [2005] NSWIRComm 1231; Michal Kealy and Charmport Pty Ltd T/as Desktop Dining [1999] NSWIRComm 263.

304 Mr Sebbens submitted that the Applicant has not satisfied the onus showing that the resignation (which the Commission has ruled was a constructive dismissal) was, in the circumstances, harsh, unreasonable or unjust.

Procedural Fairness

305 Mr Evans in reply relied on the evidence of Mr Devine and Ms Saville to demonstrate a lack of procedural fairness.

306 Mr Evans submitted that Mr Devine's evidence reveals a bias against Ms Franks which, taken with that of Ms Saville, demonstrates that the detail of allegations was not put to Ms Franks; and that she was afforded inadequate opportunity to review files and was prevented from copying any material for her defense.

307 Mr Evans relied upon Antanakopolous where the Full Bench said at p 389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

308 Mr Evans put:

The Respondent could have afforded the Applicant procedural fairness. It is an organisation with immense resources. During the evidence by its witnesses, it detailed the investigation it had conducted. It never deemed it appropriate for a period of five months to discuss any of these issues with the Applicant. (Devine & Saville) It never followed up with Performance Management review; regular work audits or educational and instructional sessions in Taree during this period of time. During this period of time they vitiated any chance of the Applicant to continue her livelihood with the respondent.

309 Mr Evans submitted that Ms Franks was never given any warning of failure to adequately service clients. Mr Evans refuted the Respondent's assertion that, arising from the first investigation, Ms Franks was given a warning for "matters of a similar nature" to those subject to the second investigation. It is Mr Evans' submission that the only similarity is that the issues in both investigations arise from malicious gossip and innuendo, which were never supported by genuine or written complaints by clients or by employees of the Respondent.

CONSIDERATION

310 The evidence establishes that there was an unacceptable level of discord and personality issues at Gloucester. Ms Koller's experience must be considered most unfortunate for her and the Respondent.

311 Taken together the evidence of all witnesses reveals that these circumstances had existed for some time, giving weight to the proposition advanced by Ms Koller that (Ex 45):

Only with close managerial supervision and authority will the problems of Gloucester be rectified.

312 The difficulty is that the necessary level of management supervision and authority seems to have been absent.

313 The first investigation revealed a range of work practices and personality issues which required attention and correction.

314 The evidence leaves open a finding that Ms Franks, supported by Ms Johnston, was strong willed and determined to carry out her duties in the manner in which she saw fit, and had been allowed to do so for many years.

315 Even if this were the case, it is not reasonable nor appropriate to hold Ms Franks or Ms Johnston wholly responsible for those circumstances.

316 Both Ms Franks and Ms Johnston were long serving employees. If their attitudes and behaviour were inappropriate, it was a creation of the corporate history of the Gloucester medical facilities in which they had worked for some 40 years.

317 To the extent management required work practice changes or attitudinal adjustments, the process of consultation and, if necessary, application of the disputes procedure contained in the relevant industrial instrument, was available. This process is designed to actively engage the employees, their union, and the assistance of the Commission in a review of circumstances and determination of the proper and necessary outcomes.

318 This case is a prime example of the difficulties encountered when disciplinary alternatives are applied without first a pursuit of the process of change.

319 The conclusion by management to issue a warning and conduct remedial training was accepted by Ms Franks and not challenged in these proceedings. It is regrettable that the remedial training did not take place.

320 It is put that there are many reasons for this, including the availability of Ms Franks, and organisational restructure. This may be so, however, ultimately it is the responsibility of management to give effect to its own decision.

321 The second investigation is challenged in both form and substance. It is contradictory that Ms Franks was stood down from duty, albeit on full pay, on 11 April 2005 on the basis of conclusions reached by Mr Devine; and then invited to a fact finding interview on 15 June 2005.

322 The sequence of events suggests that management had formed a view, and the length of time between stand down and interview is unexplained and prejudicial to Ms Franks.

323 The evidence does not support a finding that Ms Franks failed in her duty to clients/patients.

324 The onus is upon the respondent to make out the allegations of misconduct to the civil standard of proof (see Briginshaw v Briginshaw (1938) 60 CLR 336). The Briginshaw standard of proof and its application is usefully restated by a Full Bench of the Commission in New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 wherein the Bench said (at paras 41, 42):

41. Given the seriousness of allegations such as criminal conduct and other conduct that might attract summary dismissal, a tribunal should not lightly make a finding that, on the balance of probabilities the appellant was guilty of the misconduct alleged. In this context, it is appropriate that we refer to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court observed:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711):

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.

42 The more complete extract from Briginshaw v Briginshaw quoted, in part, above in Neat Holdings was that:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

325 The evidence does not rise above clerical or record keeping practices that, on examination, are not entirely the responsibility of Ms Franks, and are an outcome of entrenched practices at Gloucester.

326 Ms Franks cannot be held accountable for the paucity of motor vehicle records as this standard of reporting had been accepted for many years. The outcome of the first investigation was intended to correct this but was never implemented.

327 Hospital records were not the responsibility of Ms Franks. If it is to be that persons other than ward staff contribute to those records, then a clear instruction should be issued.

328 There is no direct evidence from any of the patients or carers of those people Ms Franks is alleged to have failed to service. This evidence does not rise to the level of statement, statutory declaration, affidavit or even written complaint.

329 I do not accept that the provisions of s 19 of the Health Services Act prevent the Respondent from obtaining any evidence at all. This legislation did not prevent Mr Devine and Ms Saville from visiting the carers of Mr A on two occasions.

330 The conclusions of Ms Cain are translated into the allegations put against Ms Franks to justify the termination of her employment.

331 Ms Cain was not called to give evidence. Mr Devine deposed that he relied upon her conclusions as a health professional to assist him in execution of the disciplinary process.

332 Objectively analysed and without the benefit of evidence from Ms Cain, her conclusions amount to no more than an opinion that she would have done things differently. The difficulty is that this does not prove that Ms Franks has acted wrongly, simply that another registered nurse would have taken a different course of action.

333 Ms Saville accompanied Mr Devine to the residence of three clients and participated in interviews of family members.

334 It is appropriate to identify the clients as Mr A, Ms B, and Mr C.

335 It is necessary to carefully consider the evidence in respect to these clients as much weight is placed on the allegation that Ms Franks failed to attend to these clients and/or created false records.

Mr A

336 The evidence of Ms Saville is that Mr A had recently passed away and the interview was with relatives who had cared for him in their home. Mr A's family confirmed that Ms Franks did not attend their residence as she claimed on the day that Mr A passed away. Mr Devine recounts the visit with the carers of Mr A in the following terms (Ex 40, attach. H):

... according to the work notes of Ms Franks she attended the family on the day of the death, organised the body and spoke with the funeral director and this was booked out for around four or 6 hours of work. When speaking to the carers of Mr [A], we indicated that I was the Director of Corporate Support for the CARE Network and that I was reviewing services provided by the Community Health Centres throughout the Area Health Services. This in fact was one of my duties for the new health service. I asked the [carers] over a period of 45 minutes three specific questions. These were:

1. It must have been a relief to have a member of the Area Health Service, a Community Nurse with you, when Mr A died and you were preparing the body. The answer to that was nobody attended. We only spoke to Ms Franks on the phone.

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

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

337 Ms Franks offered a reply to the allegation in a statement directed at the specific circumstances of Mr A (Ex 34), which is marked confidential as it canvasses many personal and medical details, put by Ms Franks to demonstrate that she had a close rapport with Mr A, who had confided in her very personal issues, including his difficulty in coping with the circumstances of being one of the stolen generation. Ms Franks gave evidence of discussions of precise events surrounding Mr A's passing and discussions with his carers, which are put to refute the assertion that she did not attend to Mr A adequately.

338 Ms Franks deposed that on advice of Mr A's passing from his sister on the morning of 7 April 2005 she immediately went to their residence to assist them.

339 Ms Franks described in detail the clothing worn by Mr A and asked his carer whether she wanted the body dressed in anything special or an item of significant meaning sent with him with the funeral director.

340 Ms Franks deposed that discussion ensued concerning apprehensions by the carers as to whether Mr A may have given himself an overdose of medication. Ms Franks deposed that she was sensitive to the attitude of the carers that they did not want to address this matter on the day of Mr A's passing and afforded them some time to approach the general practitioner. Ms Franks deposed that she offered advice to the carers which apparently was not taken.

341 Ms Franks' evidence is that she spoke with Mr A's sister by telephone the next day to offer further assistance and repeat her advice and was informed that they were very busy with family and funeral arrangements. Ms Franks invited Mr A's sister to call at any time in the future if she required further assistance but no further contact was made.

342 Ms Franks put that on departure from Mr A's residence on 7 April 2005 she made two calls on the palliative care mobile phone, one to RN M Johnston and one to RN C Stewart to inform them that she had left the residence and enquire if they needed assistance.

343 Ms Franks deposed that she is at a loss to understand why Mr A's carers were said to have stated that she did not call to the household on the day of Mr A's passing.

344 In cross-examination from Mr Evans Ms Saville conceded that she had not checked motor vehicle records to determine whether Ms Franks had logged a trip to the residence of Mr A on the day she claimed to have attended to support the family and assist with funeral arrangements.

Ms B

345 Mr Devine's evidence contains an account of the interview with Ms B on 2 May 2005 (Ex 40, attach. H). Mr Devine deposed that:

The patient was clearly distressed by the fact that I was there as she had had difficulties with males during her upbringing and was frightened of any male whom she had not been introduced to and acclimatised to. The patient was asked for a brief description of services that she was provided by Community Care in the last three months and she named a number of nurses and spoke about the times that they had been there. She was cogent, the discussion followed a logical path and it was clear that she understood exactly the sorts of interventions that the Health Service was taking with her and over what time scale. When Louise first asked, and I then asked follow up questions, about the visits of Maree Franks, she said that she had not seen Ms Franks for months and months. When pressed for the exact time she indicated that it was something like six months or longer since when Ms Franks had last visited her, she could not be sure but she said it was certainly not in the last three months.

346 Exhibit 21 is a computer generated record of service contacts by Ms Franks, extracted from the MNCAHS Primary Health and Extended Care Information System, which records 41 contacts in the period 29 July 2004 to 28 March 2005. Exhibit 8 is a similar computer generated document which records seven contacts with Ms B from 5 August 2004 to 19 May 2005. Exhibit 44 is progress notes made by Ms Blanchard which record a home visit to Ms B on 5 August 2004 undertaken at the request of Ms Franks.

347 Handwritten clinical notes (Ex 9 and 21) detail the service contacts with Ms B by Ms Franks, Ms Sutcliffe, Ms Blanchard, Ms Stewart and Ms Fleming. These records detail the contact with Ms B and the subject matter of concern. These records show 12 contacts by Ms Franks; 11 contacts by Ms Sutcliffe, 6 contacts by Ms Blanchard, and various attendances by other health care professionals. The records further reveal that on 2 May 2005, the occasion of interview by Mr Devine, Ms B was apprehending a hospital visit and was counselled by Ms Blanchard on 3, 6, 11, 16, 17 and 19 May.

348 Criticism is made of Ms Franks concerning the lack of information provided in her reports, in particular that her visit to Ms B on 14 March 2005 was in company with Ms Blanchard, however, there is no reference to Ms Blanchard in the report.

349 Exhibit 39 is a statement in response deposed by Ms Franks which details her service to Ms B, setting out a level of patient knowledge which it is put could only be gleaned from frequent and regular contact.

350 Exhibit 48 is a statutory declaration sworn by Ms B on 6 July 2006 in which Ms B declares that:

...I remember Maree as visiting me regularly at least once or twice a week. She helped and supported me when I was despondent & was like a counsellor & when went out of her way & did things for me that she didn't have to do, she went way beyond. I remember when I wasn't eating & I didn't have groceries that she organised the Welfare Worker to come & sort it out. ... She has reassured me about a lot of difficult aspects of my life & has been a constant, ongoing support.

Mr C

351 Mr Devine and Ms Sutcliffe were unable to arrange a meeting with the client identified as Mr C.

352 Ms Franks was criticised for not servicing Mr C in accordance with the palliative care protocol which requires clients to be designated as stable; unstable; deteriorating; or terminal, with corresponding visit frequency of 2-4 weekly; weekly; 2 - 3 times per week; and daily.

353 The evidence of Ms Franks is that Mr C had undertaken a trip to Europe with his wife and grandchildren from 1 September 2004. Ms Franks deposed that Mr C could not have been considered unstable in August, prior to his trip. Ms Franks' evidence is that Mr C returned from Europe in late 2004, she saw him on 14 December 2004, then she was on leave during January and February 2005.

354 Ms Franks deposed that Mr C would have been attended to by other staff whilst she was on leave.

355 It is appropriate to consider each of the ten specific allegations made against Ms Franks:

1 Not seeing the following patients as per instructions and guidelines for the frequency of visits and care for palliative patients:
§ [Mr C]
§ IA
356 There is no evidence of an instruction that Ms Franks attend to either of these clients on any particular occasion.

357 Ms Sutcliffe may have made appointments, but she was in no position of authority to instruct Ms Franks. An examination of the appointments made by Ms Sutcliffe give rise to the same concern.

358 Ms Sutcliffe's evidence is that she made appointments for Ms Franks to make home visits to Mr A, Mr C, and Mr D; and to see Mr G in hospital on 20 January 2005.

359 The appointments made by Ms Sutcliffe for Ms Franks to attend to on 21 January 2005 were home visits to Mr FP, Ms D, Ms Mc, Ms DR, Ms W, Ms J and Mr A. A home visit to Mr A involved a 150 kilometre round trip. A genuine concern arises that the arrangements made put Ms Franks in a position where she could not possibly attend upon the clients and provide any meaningful service.

360 Mr C and IA are identified by Ms Sutcliffe as clients not seen by Ms Franks for lengthy periods.

361 The Palliative Care Guidelines are, as identified, guidelines to be used in determining the necessary and appropriate attendance upon a client. The guidelines are not a protocol or procedure to be followed and applied as a strict schedule without room for discretion.

362 Mr Devine and Ms Saville were not able to contact Mr C. This is consistent with the evidence of Ms Franks that he was difficult to contact.

363 The evidence of Ms Franks that Mr C undertook a trip to Europe with family members is not refuted, nor is her evidence that he was attended to by other staff.

364 There is no evidence, or even a hint, of complaint from Mr C or family that Ms Franks or the MNCAHS had neglected him.

365 The allegation in respect to IA is not supported by the evidence, which includes reference to medically qualified relatives expressing satisfaction with Ms Franks.

2. Falsifying AHS attendance and work records regarding the visit to [Mr A] on the day of his death which we were told by the family did not happen; seven (7) visits recorded to [Ms B] which she informs us did not happen during the period of 2 March 2005 until 31 March 2005.

3. Falsifying medical records for the instances outlined in point 2 above.

366 The only evidence in respect to Mr A is that of Mr Devine and Ms Saville having visited the carers, as opposed to that of Ms Franks. This evidence does not include a complaint from the carers or any dissatisfaction with the assistance given by Ms Franks. The only point of difference is that Ms Franks says she attended on the day Mr A passed away, which the carers denied to Mr Devine, who concedes that the carers were not entirely sure who he was or his purpose, referring to him as a nurse.

367 The evidence of Ms Franks is more plausible, demonstrating a high level of professional knowledge of the circumstances and the anxiety of the carers over their apprehension that Mr A had subjected himself to an overdose of medication.

368 That Ms Franks afforded the carers some time to resolve their concern and come to a conclusive view that they should or should not inform the treating general practitioner (GP) is a matter of professional judgment for which she should not be criticised.

369 Ms Franks was then on leave and stood down from employment from 11 April 2005, denying her further contact with Mr A's carers or the GP. Ms Franks cannot be held responsible for taking no further action as she was directed by her employer to stand down.

370 There is no evidence of a report by the carers to the relevant GP. If they did report their suspicions they acted in accordance with the advice of Ms Franks. If they made no report it is open to conclude that, on reflection, at a time post the emotional shock of Mr A's death, they held no suspicions and had nothing to report.

371 In either event Ms Franks could not be held culpable as she was in no position to make her own independent investigation. There could be many reasons for the carers being unable to recall Ms Franks attendance on the day Mr A passed away, ranging from the trauma of the event, embarrassment at having exposed their initial suspicions, or simply the business of funeral arrangements and associated events involving a large number of people. Ms Franks deposed that she was advised by telephone not to call as the carers were busy with those matters.

372 The allegations in respect to Ms B are not supported by the evidence, the best evidence that is obtained from her is supportive of Ms Franks.

4. Pre-arranged visits for Palliative Care Clients on 20 and 21 January 2005 where the car log sheets indicate client visits between 9:00 to 15:00 hours on 20 January 2005 travelling 21 kilometres, and 9:00 to 15:30 hours travelling 31 kilometres on 21 January 2005. No evidence of client visits or contact to cancel these pre-arranged visits.

373 The motor vehicle records are supported by the evidence of Ms Sutcliffe and Ms Franks that Ms Sutcliffe made appointments for Ms Franks for 20 and 21 January 2005. The clients to be visited are identified by Ms Sutcliffe in her evidence, one of them being Mr A, which visit did not occur and would have required a much longer journey. Apart from the physical impossibility of visiting all the clients with whom Ms Sutcliffe had made appointments on the dates nominated, the absence of evidence of whom Ms Franks actually visited is not a foundation for dismissal.

5. Falsification of medical, attendance and work records for the following people whom you indicated you visited in hospital, yet no indication of the visits are in the hospital records or the work you allegedly undertook.

• EN
• BH
• AS

374 Analysis of exhibits 25, 26, and 27, which are the records tendered for these patients, does not support the allegation.

375 The substance of the allegation is that hospital records do not support the statistical records created by Ms Franks which record the work undertaken by her.

376 The Commission is asked to infer that because a ward nurse recorded Ms Franks attendance on one occasion, her attendance would have been recorded on every occasion she attended a client in hospital. This inference is simply not available. An examination of the hospital records reveals that they are completed by a variety of ward staff, from experienced registered nurses to student nurses. There is no evidence of a hospital guideline or protocol describing what events should be recorded, and there is absolutely no evidence from any of the hospital staff as to the practice applied.

6. Poor patient record keeping not of a standard required by a registered nurse. I note you were a Clinical Nurse Specialist in Palliative Care and dropped back at your request. (See attachment A)

377 To the extent that patient records were not completed to the satisfaction of the Respondent, this could be remedied by instruction and remedial training of the type proposed following the first investigation.

378 I note that the content and style of client records was under active disputation between Ms Koller, Ms Franks and Ms Johnston, the latter accusing Ms Koller of inappropriate subjective comment.

379 This is not a ground which could support termination of Ms Franks' employment.

7. Intentionally misleading management about your whereabouts and conduct of your duties when you were allegedly not doing your assigned duties.

380 This allegation suffers the same evidentiary flaw as those above and is drawn from those circumstances, particularly Mr A.

381 The allegation in respect to Mr A is not supported by evidence.

382 There is no evidence to support the allegation of intent in any of the circumstances in which the Respondent regards Ms Franks' record keeping inadequate.

8. Possibly behaving in a manner that has brought about adverse patient outcomes for patients involved in the palliative care process.

383 This allegation is self-defeating. The assertion that Ms Franks has "possibly" done something conveys the lack of factual base throughout these proceedings. The evidence does not support a finding that Ms Franks in any way caused or contributed to an adverse outcome for palliative care clients.

384 The evidence of Mr Devine is contradictory to this allegation. Mr Devine deposed (TR 30/5/06, pp 34, 35)

A. Mr Evans, on every person that I spoke to who Ms Franks serviced appropriately, they spoke glowingly about the service that they received from Ms Franks. The [carers for Mr A] spoke, even on Friday, [the carers] again told me what a good nurse they thought Ms Franks was. So you're asking me a question and the only way I can answer it is, is it symptomatic, well, I don't know, because the difficultly I've got is that I actually accept that Ms Franks is a good nurse when she provides the service that she's supposed to. What I don't understand and what I couldn't find out and what I've never been able to get to the bottom of, why some people were serviced and others weren't. I wanted that quality of care as a representative of the Area Health Service, if I could have got that quality of care that Ms Franks clearly elicits from some people right across the board, we'd have a very very happy outcome.

385 There is no evidence of complaint by any person referred to by Mr Devine.

9. Failure to follow procedures and guidelines in relation to patient care and case management of palliative care patients.

386 This allegation is a repeat of earlier assertions. The allegation lacks substance, which was not remedied by evidence.

10. Failure to assist other nurses when you did not have work to do, or intended not to do work that you had and they were busy. Thus providing an environment destructive to team work and causing difficulties for the AHS in providing adequate and timely care to general community health patients.

387 The specific foundation of this allegation is obscure. To the extent it is founded upon the dispute with Ms Koller, it is unsustainable. To the extent it is founded upon the accusations of Ms Sutcliffe it suffers from lack of evidence. There is not one assertion, let alone evidence, of a member of the nursing staff requiring or requesting assistance and being refused by Ms Franks. The allegation is no more than a subject assessment by those framing the charge.

388 Their evidence does not support a finding that the allegation is either specified or made out.

389 The allegations are followed by reference to a final warning given about matters substantially similar raised in the previous ten matters.

390 There is no evidence of a "final" warning, nor is the assertion of substantially similar subject matter concerning when the current allegations are reviewed.

391 The evidence is that Ms Franks was given a first level warning. The Underperformance and Discipline Manual ("the Manual") of the Respondent is tendered (Ex 59, folio 59). The discipline process for less than serious misconduct provides for informal counselling, a first warning followed by a second or final warning prior to disciplinary action of transfer or dismissal.

392 Guidelines for managers are provided as assistance in the assessment and investigation process, which includes the form of a Final Warning - Serious Misconduct.

393 Section 3 of the Manual deals with Under Performance procedures which provide for informal counselling, a first Performance Management Counselling, followed by a second or final Performance Management Counselling prior to disciplinary action of transfer or dismissal.

394 It is inconsistent with the procedures to categorise a first level warning as a final warning. Whether it be a disingenuous exaggeration of the circumstances put against Ms Franks, or a simple mistake, there is an obvious failure to afford procedural fairness.

395 If it were to be accepted that the subject matter was sufficiently similar for the warning arising from the first investigation to be effective, the utility is lost by failure of management to implement the assistance deemed appropriate to Ms Franks.

CONCLUSION

396 The termination of employment of a person with 36 years service on the basis of assumptions, inferences and suspicions, unsupported by evidence, is harsh, unreasonable and unjust warranting intervention by the Commission.

397 I accept the arguments advanced by Mr Evans that reinstatement is not impractical. The Respondent's argument that the position has been filled, and having regard to the time taken to conclude proceedings, is not persuasive when considered in the context of Ms Franks' years of service, and the flexibility in placement available by an order for re-employment.

398 I note the submission of Mr Sebbens that restoration of remuneration should be limited to the period from dismissal to the date upon which written submissions would have been concluded but for the illness of Mr Evans. These circumstances are not an ordinary matter of agent error, but an unfortunate situation not the fault of any party.

399 In addressing this aspect of the matter I have regard to the mitigation of damages by Ms Franks in obtaining interim employment as a registered nurse; and allow some reasonable time for conclusion of the matter post completion of written submissions.

400 I make orders for re-employment, continuity of service, and restoration of remuneration lost from dismissal to 1 October 2006 adjusted by monies earned by Ms Franks from employment in that period. Earnings from 1 October 2006 to re-employment are not included in the consideration.

401 Matter No IRC 3947 of 2005 is so concluded.

ooOoo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 6 July 2007

Matter No IRC 3947 of 2005

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

ORDERS

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

I so Order.

The Hon. R W Harrison
Deputy President



LAST UPDATED: 6 July 2007