Cecile Reader and Wyndham Lodge Nursing Home [1995] IRCA 4

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY NO. VI 837 of 1994 BETWEEN CECILE READER Applicant AND WYNDHAM LODGE NURSING HOME Respondent MINUTES OF ORDER 13 January 1994 Judicial Registrar Tomlinson THE COURT ORDERS: That the application of the Applicant Cecile Reader be dismissed. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY NO. VI 837 of 1994 BETWEEN CECILE READER Applicant AND WYNDHAM LODGE NURSING HOME Respondent REASON FOR DECISION 13 January 1994 Judicial Registrar Tomlinson This is an application under s 170 EA of the Federal Industrial Relations Act of 1988. The Applicant claimed: 1. An order that the termination of employment on 13.6.94 contravened Division 3 of Part VIA of the Industrial Act. 2. Reinstatement under Section 170 EE of the Industrial Relations Act. 3. Compensation at the rate of $840.00 per week for week she has not worked since 13 June 1994 (but allowing for various set-offs). 4. Such other orders as would place her in the same position had her employment not been terminated. The Applicant is a Registered Nurse who has been employed by the Respondent and its predecessor since 1987. The Respondent operates a geriatric nursing home for some 30 residential patients. The Applicant was employed mainly as the responsible supervisory registered nurse on the day shifts, that is from 7 am until 3.30 pm. At the outset of these proceedings Mr Fehring of Counsel on behalf of the Applicant alleged the circumstances giving rise to the termination occurred on 12 and 13 June 1994. Further, that late in the afternoon of the previous day, that day being Tuesday 6 December 1994, his instructing attorney received a letter from the Respondent's solicitors stating, inter alia, that matters other than those which occurred on 12 and 13 June 1994 would be relied upon by the Respondent in resisting the Applicant's claims. Mr Fehring sought an order that on the basis of Wheeler v Phillips 97 ALR 282 at p.306 that the Respondent be prevented from placing such further allegations before the Court. On behalf of his application it was argued that if the Respondent was allowed to do otherwise it would mean the the positition of the Applicant was being "abused" as she had no knowledge of any such other matters. Further, it was argued, the Applicant had no knowledge of these other matters as they had not been raised or referred to by the Respondent's solicitors previously. The Court ruled that in determining if a termination of employment was to be unlawful then the whole of the history of the employment together with any matters or incidents involving allegations made by the employer against the employee were relevant to the proceedings before the Court and accordingly the application was dismissed. On behalf of the Applicant the Court heard evidence from: · Mrs Cecile Reader, Registered Nurse, And on behalf of the Respondent the Court heard evidence from: · Mrs Hazel Edwards, Enrolled Nurse · Mrs Heather Grima, Enrolled Nurse · Mrs Michelle Sweeting, Enrolled Nurse · Mrs Carol Kinnear, Enrolled Nurse · Mrs Anne Canterbury, President of the Management Committee of the Respondent. The Applicant Mrs Cecile Reader told the Court she was 55 years of age and that she had completed her training to become a registered nurse in 1962. As a registered nurse, Mrs Reader, in the course of her employment with the Respondent, supervised a staff of some five enrolled nurses and that Wyndham Nursing Lodge provided total care for some thirty resident patients. The Applicant stated that she alone as the registered nurse in charge of the particular shift had the responsibility of administering medication from the drug trolley. Central to this application is the treatment accorded by the Applicant to one of the residents in the permanent care of the Respondent, Mrs Vera Bullard. It was common ground from all witnesses that Mrs Bullard was an elderly and frail resident who suffered from progressive dementia. With the exception of Mrs Canterbury all witnesses (who were employed by the Respondent) stated they had been treated aggressively by Mrs Bullard and that this treatment included hitting, biting and the pulling of hair. It was further common ground that each resident admitted into care to Wyndam Lodge Nursing Home had especially created a personalised Nursing Programme which provided guidelines as to every aspect of the nursing and wholistic care. There were some eighteen or so residents who suffered with dementia and the Court was told that in addition to a Nursing Programme many such residents had a Behaviour Modification Management Programme. These programmes carefully outlined the medical treatment and the general care procedures to be used by the staff of the Respondent in looking after the residents. Many of these programmes used Validation Therapy as a means of dealing with bouts of aggressive conduct exhibited by dementia sufferers. Validation therapy employed techniques of Diversion Therapy and all witnesses stated these techniques were relatively successful in dealing with bouts of aggression and confusion exhibited from time to time by the residensts. The evidence from the Applicant dealt in the main with the incidents on 12 and 13 June 1994. At that time the Applicant stated Mrs Vera Bullard had been a resident for some 12 months and her condition was such that she could not bathe and dress herself although she was ambulatory and could feed herself. Mrs Bullard's doctor and the Director of Nursing, Sister Sargeant and with input from other staff members devised for her a specific and personalised Nursing Programme. At 8 am on the morning of 12 June 1994 the Applicant as the Registered Nurse in charge of the shift commenced as usual dispensing medication from the drug trolley. Nurse Sweeting and Nurse Kinnear were also on duty at that time. At 8.30 am the Applicant was approached by Mrs Bullard who proceeded to slap the Applicant twice on the face. The Applicant stated that Mrs Bullard then grabbed her nurses' apron and it tore. The Applicant spoke then to Mrs Bullard and said: "Don't do that." However the Applicant stated that Mrs Bullard marched to the breakfast trolley picked up a bowl of food and threw it on to the floor. The Applicant stated she then approached Mrs Bullard and said: "Come to your room." The Applicant made a move towards her whereupon Mrs Bullard seemed to sink at the knees towards the floor. According to the Applicant she was assisted by Enrolled Nurse Mrs Carol Kinnear, whereupon the two nurses guided Mrs Bullard to her room and sat her in a chair. One of the domestic assistants, present in the day room at the time of breakfast cleaned up the food on the floor. The Applicant stated she completed her medication round between 9.30 am and 10 am. The Applicant then had her morning tea together with Nurse Kinneer and Nurse Sweeting at which time she mended with needle and thread her torn apron. The incident involving Mrs Bullard was not discussed. The Applicant testified that later on that morning the relatives of Mrs Bullard visited and that she spoke with them concerning the provision of more underwear as Mrs Bullard had destroyed them and apparently tore them up. The rest of the day passed without incident. Shortly before the Applicant was due to commence work on 13 June 1994, the Applicant stated that she received a telephone call from the then Director of Nursing, Mrs Pat Sargeant who advised that the Applicant was to be suspended from duties immediately because of an incident about which two letters had been received from staff members. The Applicant stated Mrs Sargeant then requested her to provide a written report of the incident. Shortly thereafter the Applicant stated she received a second telephone call from the Director of Nursing requesting to come into the Nursing Lodge so that the incident referred to by Mrs Sargeant could be discussed in the presence of Mrs Anne Canterbury. The Applicant stated she replied that she would attend the meeting, but that as the incident was to be discussed she would not submit a report in writing. At the meeting the Applicant stated Mrs. Canterbury asked her what happened the previous day and that the Applicant provided her account of the incident. The Applicant testified that Mrs Canterbury stated that she had two letters and a certificate from a doctor and that the employment of the Applicant was terminated. The Applicant stated that at this point Mrs Canterbury handed to her an envelope presumably containing money. The Applicant stated that she could not accept money without advice from her union. A few days later the Applicant stated she received a letter 13 June 1994 from the Respondent which stated: "Dear Ms Reader re: Employment at Wyndham Lodge Nursing Home Inc. On behalf of the Committee of Management of Wyndham Lodge Nursing Home, I wish to inform you that due to your conduct resulting in instant dismissal, your services at the Wyndham Lodge Nursing Home are terminated without notice as of today, Monday 13 June, 1994. Yours sincerely, Anne Canterbury President." Under cross examination the Applicant agreed that at all times staff were encouraged to treat the residents in a caring and understanding manner and that when shown Exhibit 3, the record of the Behaviour Management Programme prepared for Mrs Bullard, she further stated that her understanding of Validation Therapy was to be as caring as she could when Mrs Bullard showed signs of distress. The Applicant denied the suggestion that she had been told not to deal with Mrs Bullard or that she had ever punched or hit Mrs Bullard. The Applicant under cross-examination specifically denied that she had ever thrown a glass of water over Mrs Bullard at an earlier occasion. The Applicant specfically denied stating to Mrs Grima: "Validation means hitting patients back." The Applicant agreed she attended counselling sessions in early 1994 as a result of a suggestion made by the then Director of Nursing as a result of incidents between herself and the resident Mrs Vera Bullard. The Applicant specifically denied a further incident which occurred late in 1993 which it was put to her that she had maybe again been violent towards Mrs Bullard. The Applicant stated Mrs Bullard at the time in had an injured arm. .It seems that at the time in question the Applicant was undressing another patient for bed and in order to lead Mrs Bullard quietely from the room the Applicant had placed her hand on Mrs Bullard's waist and gently guided her through a doorway. Mrs Hazel Edwards gave evidence that she was employed as a State Enrolled Nurse by the Respondent and that her duties were to attend to the wholistic nursing requirements of the residents. Mrs Edwards stated that she had often been treated with physical aggression by the dementia sufferers at which point she employed diversional therapy as to meet aggression with aggression only made the situation worse. Mrs Edwards testified she believed Mrs Bullard to be in the first stage of dementia in that she was occasionally verbally and physically aggressive further that Mrs Bullard had left the nursing home some 3 or 4 months ago. Upon being shown Exhibit 3 Mrs Edwards testified it was the Management Programme for Mrs Bullard. The main area of evidence provided by Mrs Edwards concerned an incident which she stated occurred at 6 pm on 16 February 1994. At that time she heard loud shouting and so hurried to investigate and saw the Applicant with her hands on the forearms of Mrs Bullard and forcing Mrs Bullard through a doorway. Mrs Edwards stated that at the time of the incident Mrs Bullard was crying with pain and that she was aware Mrs Bullard had a fractured forearm. In cross-examination Mrs Edwards confirmed that she had witnessed a nasty incident but that she did not fill out an Incident Report. Mrs Edwards told the Court the incident was later discussed in a group situation in the presence of the Applicant who did not deny that it had occurred. Mrs Edwards also stated that in the Behaviour Modification Programme for Vera Bullard only one person was to be the carer for that particular shift. It was common ground that the layout of the nursing home included a large centrally placed "Day Room" where each resident had his or her chair, nursing station at one end. From the Day Room were corridors which led to bedrooms. Mrs Heather Grima told the court she had trained as a state Enrolled Nurse 28 years ago and that she had been employed by Wyndham Lodge for 12 years. The evidence of Mrs Grima accorded with that given previously as to the duties of the nursing staff and as to the aggressive tendencies of Mrs Bullard.