D'Antuono, Anthony v Minister for Health [1997] FCA 865

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of unlawful termination of employment - review of decision of judicial registrar - agreement between the parties that transcript of evidence of certain witnesses be admitted into evidence on review - dispute as to primary facts - relevance of findings of judicial registrar in respect of the credit of witnesses who did not give evidence on review Workplace Relations Act 1996 ss 170DC, 170EDA, 377 Industrial Relations Act 1988 s 170EA Wyndham Lodge Nursing Home Inc v Reader (1995) 65 IR 253, applied Gibson v Bosmac Pty Limited (1995)60 IR 1, applied ANTHONY D'ANTUONO v MINISTER OF HEALTH No. WA 2574R of 1995 MARSHALL J MELBOURNE (HEARD IN PERTH) 26 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WA 2574R of 1995 ) GENERAL DIVISION )

BETWEEN: ANTHONY D'ANTUONO

Applicant

AND: MINISTER OF HEALTH

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN PERTH) DATED: 26 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WA 2574R of 1995 ) GENERAL DIVISION )

BETWEEN: ANTHONY D'ANTUONO

Applicant

AND: MINISTER OF HEALTH

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN PERTH) DATED: 26 AUGUST 1997

REASONS FOR JUDGMENT This is a review pursuant to s 377 Workplace Relations Act 1996 ("the Act") soughtby the applicant, Mr D'Antuono, concerning the dismissal by a Judicial Registrar of his application for relief under Div 3 of Part VIA of the Act. BACKGROUND On 19 December 1995, Mr D'Antuono filed an application pursuant to what was then s 170EA Industrial Relations Act 1988 in respect of what he alleged to be the unlawful termination of his employment by Armadale Kelmscott Health Service ("the Service"), a health service provided by the Minister of Health for Western Australia. Mr D'Antuono was employed as a registered mental health nurse at the Service. The Service provides nursing care for psycogeriatric patients. Mr D'Antuono commenced work at the Service in May 1988. On 19 November 1995, he was suspended from his employment, with pay, pending the outcome of an investigation, inter alia, into an incident which was alleged to have occurred on 13 November 1995 involving an elderly patient, Mr Griffin ("the Griffin incident"). Mr D'Antuono's employment was terminated on 15 December 1995 after the investigation concluded that Mr D'Antuono's conduct towards the patient constituted serious misconduct warranting dismissal. On 13 February 1996, Deputy President Bryant of the Australian Industrial Relations Commission ("AIRC"), certified that the AIRC was unable to settle the matter by conciliation. The matter was heard by Judicial Registrar Ritter over several days in April and May 1996. On 17 September 1996, the Judicial Registrar published his reasons for judgment in which he dismissed the application. In the hearing before the Judicial Registrar, the Service called evidence from several witnesses, four of whom did not give evidence on the review. By agreement between the parties, the evidence of those witnesseswas treated as evidence before me on the review. The evidence given by two witnesses in that category, the patientMr Griffin himself and Mr Colley, was accepted in certain critical respects by the Judicial Registrar in dealing with the Griffin incident. I find this to be a most significant aspect of the review for the reasons which I give below under the heading of "the Griffin incident". By letter dated 15 December 1995, Mr Paul Howard, the Director of Nursing at the Service, advised Mr D'Antuono that the allegations made against him by Mr Griffin were substantiated and constituted serious misconduct. Mr D'Antuono was also advised that he was "dismissed from (his) employment at Armadale Lodge". He was also advised in the letter that "the penalty" of dismissal was arrived at taking by into account Mr D'Antuono's work record and in particular: ". instances of your poor professional competence . matters relating to your poor standards of interaction with staff, patients, carers and the public . instances of previous disciplinary action taken against you." THE GRIFFIN INCIDENT The Judicial Registrar effectively found that Mr Griffin's evidence before him amounted to the following facts, which he accepted as having been proved: · On 13 November 1995, Mr Griffin, a patient of the Service who was suffering from depression, was incontinent of urine when Mr D'Antuono and Mr Zegulewski (another mental health nurse employed at the Service) attended upon him in the morning and requested that he get up and shower. · Mr Griffin was embarrassed at his incontinence and initially refused to get out of bed. · Mr D'Antuono and Mr Zegulewski attended upon Mr Griffin some fifteen minutes later. Mr Griffin was still under the bed clothes. Mr D'Antuono grabbed Mr Griffin's feet and swung him over to one side of the bed. He then grabbed Mr Griffin by the shoulders, stood him up and marched him down a passageway to a bathroom, pushing him in the back along the way. · At the time of the incident, Mr Griffin was aged 74 and was frail and small in stature. · On arrival at the bathroom Mr D'Antuono told Mr Griffin to undress, which he did, and get under the shower. The shower had a handpiece connected to it which Mr D'Antuono "shoved" on Mr Griffin's head. Initially the water was too cold then it was too hot. Eventually, when the temperature was right, Mr Griffin commenced to shower himself and Mr D'Antuono left the bathroom. The Judicial Registrar rejected both Mr D'Antuono's and Mr Zegulewski's evidence in so far as it conflicted with Mr Griffin's evidence, apart from Mr Griffin's evidence that only Mr D'Antuono initially attended on him on the morning in question. The facts as found by the Judicial Registrar were open to him to be found on a fair reading of the transcript of evidence of Mr Griffin whose demeanour he was able to observe in the witness box. I am in a position where Mr Griffin's evidence before the Judicial Registrar is evidence before me. This is no basis upon which I can substitute a different view about the credibility and persuasiveness of Mr Griffin's evidence for that expressed by the Judicial Registrar. The same considerations apply to the evidence of Mr Colley. Mr Colley is employed at the Service as a nurse manager. He testified before the Judicial Registrar that on 13 November 1995 he heard Mr Zegulewski say to Mr Griffin: "Oh well, we've asked you politely to have a shower". He said that Mr Zegulewski came up next to him where he was seated at the nurses' station and that he had a conversation with Mr Zegulewski regarding Mr Griffin's incontinence. Mr Colley said that "when Mr Zegulewski joined me at the nurses' station, Mr D'Antuono and Mr Griffin went into the bathroom". Mr D'Antuono had earlier testified before the Judicial Registrar, as he did before me, that he did not go into the bathroom with Mr Griffin when Mr Griffin showered. The Judicial Registrar found Mr Colley to be an impressive witness. He accepted his evidence. This crucial evidence of Mr Colley and Mr Griffin which was accepted by the Judicial Registrar was not the subject of challenge by further cross examination before the Court on review. In Wyndham Lodge Nursing Home v Reader (1996) 65 IR 253, a Full Court of the Industrial Relations Court said as follows, at 258: "... where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it 'on the papers'. Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence. This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as (to) their characters and personalities and the likelihood that they acted in a particular way. Without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar." Consequently, I consider that I am bound to accept the evidence of Mr Griffin and Mr Colley concerning the Griffin incident. However, even if I did not consider myself bound to accept that evidence, I would have accepted it on the basis that having observed Mr D'Antuono in the witness box I was not convinced that he was truthful in his account of the Griffin incident. I do not accept his evidence that Mr Griffin was punching both him and Mr Zegulewski. Whilst generally supportive of Mr D'Antuono's version of events, Mr Zegulewski testified that no punching occurred. I was also less than impressed with the evidence of Mr D'Antuono and Mr Zegulewski in which each of them quite unpersuasively sought to have the Court believe that they did not discuss the Griffin incident before they spoke to management about it. Mr D'Antuono's approach to the review was to deny the critical allegations made by Mr Griffin. He did so in a most unconvincing way. Mr Zegulewski's evidence amounted to a misguided attempt to seek substantially to endorse Mr D'Antuono's account of the Griffin incident. Although bound to accept the Judicial Registrar's findings on the evidence of Mr Griffin and Mr Colley, I am fortified, having regard to the consequences thereof, by my consideration that Mr D'Antuono was not a truthful witness and that Mr Zegulewski's account of the Griffin incident was unpersuasive. VALID REASON Although the Service sought to rely upon other conduct of Mr D'Antuono in his employment to justify the penalty of termination, in my view Mr D'Antuono's conduct in the Griffin incident and particularly his rough treatment of Mr Griffin constituted a sufficient basis alone for his termination. The termination of Mr D'Antuono's employment was thus for a valid reason; that is, mistreatment of a patient in his care. Such mistreatment provided the management of the Service with a valid reason for Mr D'Antuono's termination, being a reason which was "justifiable on an objective analysis of the relevant facts". See Kerr v Jaroma Pty Ltd (1996) 70 IR 469, 476. It is not necessary for the Court to consider what other reasons, if any, the Service might legitimately have had for terminating Mr D'Antuono's employment in addition to that valid reason. Consequently, it is my view that the Service has discharged its onus under s 170EDA(1) of the Act. SECTION 170DC It was submitted on behalf of Mr D'Antuono that prior to his termination he was not given an opportunity to defend himself against the allegations made by the Service. The submission was based upon the alleged lack of fairness in the inquiry conducted by Mr Howard. Mr Howard gave evidence before the Judicial Registrar. By agreement between the parties,that evidence was evidence before me on the review. In his reasons for judgment at 68, the Judicial Registrar made the following twelve points about Mr Howard's evidence: "1. His evidence was given clearly and he was knowledgeable about the subject of mental health nursing. 2. His answers were thorough, calmly given and unexaggerated. 3. His answers indicated that he was well aware of management responsibilities and the need to delegate responsibility. 4. On some occasions, he readily acknowledged that he had made what might be considered errors. For example, he admitted that he said in a public area of Armadale Lodge to Mr Zegulewski and Mr D'Antuono that a claim made by Mr Zegulewski was 'quasi-legalistic crap and un-Australian'. 5. Mr Howard showed an awareness of procedural fairness, and the documents he compiled were balanced and fair. 6. Throughout, he presented as an intelligent, articulate and considered witness. He did not present as a witness who was actuated by malice, bad faith or improper purpose. 7. Mr Howard presented as a man who was receptive to advice, and not dictatorial in any way. 8. He displayed a good memory as to events, and showed that he did not rush to conclusions but made his judgment in a considered manner. 9. Despite the cross-examination of him by Mr Carija which contained a number of imputations, Mr Howard remained unruffled. 10. Mr Howard presented as an honest witness who was clear, decisive and confident of his own abilities. He did not present as the sort of person who would have been agitated by the union activities of Mr D'Antuono to such an extent as to embark on a conspiracy to remove him from his employment. 11. Throughout the course of the extensive cross-examination by Mr Carija, Mr Howard exhibited no malice or illwill. 12. His answers to questions were given fairly and directly." The Judicial Registrar considered that Mr Howard's investigation was "thorough and genuine". He was also satisfied that Mr Howard gave Mr D'Antuono an opportunity to defend himself. I am in no position to dispute these findings. On the face of the transcript, I agree with them. I agree with the Judicial Registrar that Mr D'Antuono was given a "fair go". In any event, Mr D'Antuono'smain complaint in respectof s 170DC of the Act was that allegations other than those concerning the Griffin incident were raised with him and that he did not have a realistic opportunity to deal with them. No real complaint appears to have been made in final submissions regarding any failure of the Service to put to Mr D'Antuono any allegation concerning the Griffin incident. As I have said above, it was Mr D'Antuono's role in that incident which was sufficient to justify his termination. To the extent that Mr D'Antuono complained about a lack of procedural fairness regarding the Griffin incident, it was by way of the proposition that he was not given, in the disciplinary interview, every single piece of paper which the Service had which related to that issue. Even if that was the case, s 170DC of the Act has not been transgressed. As Wilcox CJ said in Gibson v Bosmac (1995) 60 IR 1, 7: "In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 209; 57 IR 50 at 59 I discussed the significance of s 170DC. I observed that the section imposed an important limitation on an employer's power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section." I agree with the above observations of Wilcox CJ. I consider that Mr D'Antuono was made aware of the precise nature of the concerns of the Service and was given a full opportunity to respond. Consequently, I am of the view that no breach of s 170DC of the Act occurred in respect of the termination of Mr D'Antuono's employment. ORDER The order of the Court will be that the application be dismissed. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.