WRIGHT -v- THE MINISTER FOR HEALTH [1997] IRCA 127

DECISION NO:127/97 C A T C H W O R D S INDUSTRIAL LAW - ALLEGED UNLAWFUL TERMINATION - whether TERMINATION at the INITIATIVE OF THE EMPLOYER - VALID REASON - whether employee had an opportunity to defend himself. Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) Ss 170DB, 170DC 170EA, 170EDA(1)(a), 170EE(5). Brackenridge v Toyota Motor Corporation Australia Limited (IRCA No 605 of 1996, Full Court, 13 December 1996, unreported) Jackson v Elmerside Pty Ltd (IRCA No 37 of 1997, R D Farrell JR, 3 February 1997, unreported) Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 Barry WRIGHT -v- THE MINISTER FOR HEALTH WI 2337 of 1995 BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 April 1997

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 2337 of 1995 BETWEEN: Barry WRIGHT Applicant AND: THE MINISTER FOR HEALTH Respondent MINUTE OF ORDERS BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 April 1997 THE COURT ORDERS THAT: 1. Within 14 days the respondent to pay to the applicant as damages pursuant to Section 170EE(5) an amount equal to the amount the respondent would have been liable to pay the applicant if the applicant's employment had continued for a further five weeks. Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 2337 of 1995 BETWEEN: Barry WRIGHT Applicant AND: THE MINISTER FOR HEALTH Respondent REASONS FOR DECISION 16 April 1997 R. D. FARRELL JR This is an application under Section 170EA of the then Industrial Relations Act 1988, now renamed the Workplace Relations Act 1996 ("the Act"), for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant Mr Barry Wright ("Mr Wright"), by the respondent, the Minister for Health ("the Employer"). Brief Factual Background Mr Wright had worked as a kitchen hand for Whitby Falls Hostel ("the Hostel") for 10 years. The Hostel is a 60-bed residential unit in a farm environment located about twenty kilometres south of Armadale, on the south-eastern outskirts of Perth. It provides medium to long term psychiatric care for patients who reside there. For some patients, who reside there permanently, the Hostel is their home environment. For others it is a transient treatment facility providing vocational guidance, through the farm facilities, together with psychiatric care. The Hostel does not cater for these patients in the acute phases of their illnesses, but serves as a "halfway house" between treatment for acute illness and a return to the community. The Hostel has a visiting consultant psychiatrist, together with psychiatric nurses permanently on staff. Mr Wright was a member of the "hotel services" staff, who had no psychiatric training. The Hostel formed part of the Armadale/Kelmscott Health Service ("the Service"), one of several regional health services throughout the state of Western Australia. The major institution within the Service was the Armadale Kelmscott Memorial Hospital ("the Hospital"). The application proceeded on the basis that the General Manager of the Service, Mrs Judith Roseveare, had the delegated authority of the Minister for Health to make decisions in relation to Mr Wright's employment. On Thursday 5 October 1995, it came to the attention of Mrs Roseveare that: · residents at the Hostel had complained that Mr Wright had interacted with them in a manner which they found intimidating and abusive; and · the Hostel's consultant psychiatrist, Dr Ann Troup, had formed the view that Mr Wright was not suitable to be in close proximity with psychiatric patients, so that his presence at the Hostel was detrimental to the residents' well-being and rehabilitation. Mrs Roseveare immediately instructed Mr Philip Moody, the Service's Co-ordinator of Administration and Human Resource Management, to investigate these complaints. Mr Moody organised a meeting on the morning of Friday 6 October 1995 at the Hostel which was attended by senior staff of the Hostel and the Service, by Mr Wright and by a shop steward from his union, the Australian Liquor, Hospitality & Miscellaneous Workers Union ("the Union"). The residents' complaints were discussed at this meeting. The meeting concluded with Mr Wright being placed on "special leave" on full pay, pending further investigation of the complaints. By 20 October 1995, Mrs Roseveare had decided that Mr Wright was guilty of misconduct in his dealings with the residents, and would not be permitted to return to his position as kitchen hand at the Hostel. At a meeting on that date she offered Mr Wright a transfer to a position as "all purpose orderly" at the Armadale Kelmscott Memorial Hospital, with the option of redeployment to another Health Service after a three month trial period. Mr Wright was advised that if he rejected the offer of transfer, he would be suspended from duty without pay for misconduct from 25 October 1995. That deadline was later extended to 27 October 1995. Mr Wright rejected the offer of transfer on 27 October 1995. On 30 October 1995, Mrs Roseveare directed Mr Wright to accept the position as an all purpose orderly at the Hospital at 8.30am on Tuesday 31 October 1995, warning that if he did not do so, his services would be terminated at close of business on that day. Mr Wright refused to comply with that direction, and attended the Hospital on Tuesday 31 October 1995 to advise Mr Moody that he would not take up the position. Mr Moody, on behalf of the Employer, then advised Mr Wright that his services were terminated and arranged for him to receive payments on termination, including pay up to 27 October 1995 and pay in lieu of accrued leave. Whether Mr Wright's Employment Was Terminated at the Initiative of His Employer The Employer contends that there was no termination at the initiative of the employer, but rather that Mr Wright's refusal to accept the transfer was a repudiation by him of his contract of employment, and that the advice of termination given by Mr Moody was a mere acceptance on the Employer's part of Mr Wright's repudiation of his contract of employment. If the Employer's contention is correct, then the application must fail, because the unlawful termination provisions of the Act apply only where the employment relationship is terminated at the initiative of the employer: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. The onus lies upon Mr Wright to prove that it is more probable than not that his employment was terminated at the initiative of his employer. In Mohazab v Dick Smith Electronics Pty Ltd (No 2), the Full Court suggested that the expression "termination at the initiative of the employer" should be treated as a reference to a termination that is: · brought about by an employer, in that the action of the employer is the principal contributing factor which leads to the termination of the employment relationship and results directly or consequentially in the termination; and · not agreed to by the employee, so that the employment relationship is not voluntarily left by the employee. However, as I recently observed in Jackson v Elmerside Pty Ltd (IRCA No. 37 of 1997, 3 February 1997, R.D. Farrell JR, unreported), the circumstances leading to a termination typically involve a series of "actions" and "reactions" on the part of the employer and the employee. In deciding which of these actions is the "principal contributing factor which leads to termination", the Court is effectively deciding who initiated the termination of employment. For example, in the context of the present case, a number of "actions" are potentially relevant. They include: · the Employer's effective suspension of Mr Wright from his duties at the Hostel on 6 October 1995 ("the temporary suspension"); · the Employer's advice to Mr Wright on 20 October 1995 that he would not be permitted to return to work as a kitchen hand at the Hostel, offering him instead the orderly position at the Hospital ("the voluntary transfer"); · the Employer's direction that he accept the transfer ("the disciplinary transfer"); · Mr Wright's refusal to commence work at the Armadale Kelmscott Health Service of Monday, 31 October 1995 ("the refusal"); and · the Employer's advice to Mr Wright that his services were terminated ("the notice of termination"). While the last "action" was that of the employer, by then the outcome was all but predetermined, given the employer's previous ultimatum. Clearly, the "principal contributing factor" which led to the termination was one of the earlier actions. With regard to the employer's submission that the refusal of the transfer was a repudiation by Mr Wright, summary dismissals for misconduct are traditionally analysed in contractual terms as the acceptance by the employer of a repudiatory breach by the employee. Nevertheless, they are usually held to be terminations at the initiative of the employer for the purposes of the Act, albeit perhaps for a valid reason related to the employee's conduct. It might be deduced therefore that the Court usually treats the employer's "reaction" of accepting the employee's repudiation and bringing the employment to an end as the principal contributing factor which leads to termination. However, in Jackson v Elmerside Pty Ltd, I expressed reservations as to the adequacy of relying upon such a contractual analysis as a tool for determining whether there has been a termination at the initiative of the employer. It must be remembered that the Court is considering statutory remedies arising from the termination of the employment relationship, and not contractual remedies arising from the termination of the employment contract. It is now well established that mere termination of the employment contract does not give rise to the statutory remedies under Section 170EA: Brackenridge v Toyota Motor Corporation Australia Limited (unreported, IRCA No. 605 of 1996, Full Court, 13 December 1996). In my view, the approach of Moore J in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160-1, is often the best guide in determining whether there has been a termination at the initiative of the employer. In that case, Moore J states: "...it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there has been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether or not a termination of an employment at the initiative of the employer requires the employer to intend by its actions that the employment will conclude. I am prepared to assume, for the present purposes, that there can be a termination at the initiative of the employer if the cessation of that employment relationship is the probable result of the employer's conduct." In this case, Mr Wright did not voluntarily leave the employment relationship; he wished to continue to be employed as a kitchen hand at the Hostel, and indeed seeks reinstatement to that position. I am also satisfied that the earlier significant actions on the part of the Employer, such as the proposed voluntary transfer and even the disciplinary transfer, were not intended to bring the employment relationship to an end. The employer's intention was merely to remove Mr Wright from the Hostel. The cases dealing with demotions are a useful starting point in considering the conduct of the parties in this case, given that this case involves a proposed transfer of employment. The employer contends that the transfer was not a demotion, and I accept that is probably the case. Mr Wright conceded that the new position was a better paying job. The new position was unattractive to Mr Wright for reasons particular to him, such as his place of residence and his health; another employee may have welcomed the opportunity to increase their income. The transfer was, however, clearly a unilateral change in the terms of Mr Wright's employment, including changes in: · location of work, to a workplace about twenty kilometres further from Mr Wright's residence; · pay level, being an apparent increase from level 1 to level 3; · job description, from kitchen attendant to all purpose orderly; · duties, Mr Wright having previously worked exclusively in the kitchen; and · hours of work, there being more shifts per fortnight of shorter duration and a new requirement that Mr Wright work rostered afternoon and night shifts. If the matter were to be considered in terms of repudiation of contract, it would seem to be the Employer who has repudiated Mr Wright's original contract of employment as a kitchen hand, by requiring him instead to work as an all purpose orderly in a different position with different duties and entitlements. There was nothing before me to indicate that the employer was entitled to unilaterally vary Mr Wright's conditions of employment by transferring him to a different position. Clause 13 of the Hospital Workers (Government) Award ("the Award"), which the parties agree applied to Mr Wright's employment, appears to recognise the Employer's power to transfer employees to a different location, but there was nothing brought to my attention to suggest the Employer has the right to move employees to positions with different duties without the agreement of the employee. Disciplinary provisions in the award refer only to termination of employment. In any event, under the principles in Rheinberger v Huxley Marketing Pty Ltd, it is left for the Court to consider whether Mr Wright's departure was the probable result of the Employer's actions. This is a determination to be made on the particular circumstances on this case. At the time Mrs Roseveare directed Mr Wright to accept the position as an all purpose orderly at the Hospital or face termination, Mr Wright: · had already refused a voluntary transfer, preferring suspension without pay; · had denied any misconduct, and he saw acceptance of the Hospital position as a concession on his part that a disciplinary transfer was warranted; · preferred to work at the Hostel, because it was closer to his residence with fewer and longer shifts, so that there were less trips per week to work; and · suffered from mature onset diabetes, and believed that the rotating shifts in the new position would adversely affect his health. Having considered the circumstances of this case, I find that the termination of the employment relationship was the probable result of the Employer's actions in imposing a disciplinary transfer upon Mr Wright to the all purpose orderly's position at the Hospital. Accordingly, I find that Mr Wright's employment relationship was terminated at the initiative of his employer. Valid Reason Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee's employment connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service. I have found that the termination was initiated by the Employer, being a probable consequence of Mrs Judith Roseveare's decision that Mr Wright not be permitted to return to his position at the Hostel. Mrs Roseveare's letter of 20 October 1995 to Mr Wright states that her decision was based on the statement by and conversation with Dr Troup, and on the written complaints made by the relevant patients. She refers to the enquiries made into the allegations against Mr Wright, but purports not to rely upon "statements made by other staff at Whitby Falls". The letter goes on to indicate Mrs Roseveare's view that Mr Wright's return to his position at the Hostel would compromise the welfare and care of the patients at the Hostel. I have first considered the material relied upon by Mrs Roseveare. The written complaint made by four residents ("the Residents") on 29 September 1995, complains of: · Mr Wright's cooking; · other residents' alleged fears of undefined "reprisals" for complaints about his cooking; · Mr Wright treating the Residents badly, and looking down on them as "second class citizens"; · Mr Wright "harassing and intimidating" them, by approaching them for praise for his cooking; · Mr Wright "stirring" the Residents, including unidentified comments to Jason Lorriman about his girlfriend; and · Mr Wright having a "chip on his shoulder". Dr Troup's written statement, which I take to be her letter dated 6 October 1995, confirmed complaints from the same residents that: · Mr Wright's cooking was of poor quality; · Mr Wright had on occasions been rude to each of them when they went to get their meals; and · They were missing meals in order to avoid his verbal abuse. Dr Troup added her view that there was nothing in the residents' mental health which would invalidate their complaints. Mrs Roseveare summarises Dr Troup's earlier telephone discussion with her as being to the effect that Dr Troup had received complaints from four patients at the hostel that they had been intimidated and felt threatened by Mr Wright. Mrs Roseveare recalls making notes of the conversation. Mrs Roseveare's says her belief as at 20 October 1995 was that: · residents had complained to Mr Burns, the clinical nurse specialist, who had reduced their complaints to writing; · the written complaint was then discussed with Mr Wright; and · following that discussion, Mr Wright had approached the patients and spoke to them in a manner which made them feel intimidated. Mrs Roseveare had formed the view that Mr Wright's actions were inappropriate and intentional, in the sense that he went back to the patients following their complaint. Having heard evidence from numerous relevant witnesses concerning these and surrounding events, I am satisfied that Mrs Roseveare's belief was soundly based. My findings follow based upon all the evidence put before the Court. Findings as to the Facts. Mr Wright's duties usually kept him in the kitchen so that he had limited contact with the residents of the Hostel. As a kitchen hand, he worked with a cook and with a dining room attendant on each shift. He interacted with residents mainly when he was serving meals, or when individual residents visited the kitchen for milk or other requirements during morning and afternoon tea. The three kitchen staff jointly served the meals from a baine marie while the residents filed past. During quiet times, Mr Wright sometimes went for a walk around the Hostel and came into contact with residents, sometimes seeking them out. The first evidence of any formal complaint against Mr Wright appears in a undated memorandum prepared by Mr Kennedy, the Administrative Assistant for Hotel Services for the Armadale Kelmscott Hospital Service. The memorandum records a meeting held at about 10:30 am on Tuesday, 26 September 1995 at the Hostel. The memorandum records the attendees as Mr Kennedy, Mr Burns, the clinical nurse specialist, Mr May, the other senior nurse, and Mr Simpson, the head cook. The memorandum continues: "At this meeting a complaint which had been made against Mr Barry Wright a member of the Hotel Service staff was discussed. The topics discussed came under the following headings: · Attitude · Cooking Ability · Hygiene It was decided that a meeting between Mr Wright, Mr Simpson and myself would be held on the following (sic) when these issues would be addressed." Of the attendees at this meeting, Mr May did not give evidence. Mr Burns' and Mr Simpson's evidence confirms Mr Wright's recollection that any discussion of "attitude" extended to the interaction between Mr Wright and the staff, rather than the residents. Mr Kennedy believes that a problem with Mr Wright's dealings with residents had been discussed, but he conceded he had no specific recollection of the meeting. I prefer the recollection of the other attendees concerning this meeting. 29 September 1995: The Residents Complain in Writing About Food (and abuse). Mr Burns gave evidence that, while there had previously been general discontent about Mr Wright's cooking and possibly some formal complaints on that score, the first awareness he had had of any problems with Mr Wright's interaction with residents was on Friday, 29 September 1995. Mr Wright contends that Mr Burns improperly encouraged the residents to make their complaint on that day. I am satisfied that was not so. Friday is traditionally "fish and chip day" at the Hostel. On Friday, 29 September 1995, Mr Wright was cooking, and Mr Burns chose to drive to the nearby town of Mundijong to purchase his meal rather than eat at the Hostel. On his way back to the Hostel, he stopped to give two of the residents, who had also been to Mundijong, a lift. The residents, Mr Jason Lorriman and Mr Stan Pusey, took Mr Burns' decision to eat in Mundijong as an indication that he shared their discontent at Mr Wright's cooking. This led them to ventilate their complaints on that score to Mr Burns at some length. Mr Burns, who says he refused to be drawn on his own views on Mr Wright's cooking, told them that if they had a complaint and they wanted it dealt with, then they should submit it in writing, so that it could be processed through the proper channels. Soon after their return from Mundijong, the two residents approached Mr Burns in his office, together with two other residents, Mr Garry Wood and Mr Ron Bladon. They asked Mr Burns to write down their complaints about Mr Wright. Mr Burns agreed to do so. The residents then began talking about their complaints. As they talked Mr Burns began writing. He wrote down each statement made by the residents and would then read it back to them before noting down the next statement. In this way, the following written complaint was dictated: "We, the undersigned wish to lay a complaint about Barry Wright's cooking. "I've had 2 packets of twisties for dinner and lunch yesterday (Garry)?; The lasagne is too rich - I can eat Kelvin's cooking, but not Barry's The pork chop for tea was too tough and fatty; the soup was too thick and looked like it had fat in it. It's too salty, and it's always the same sort of soup when he cooks. I put mine right back in the bin (Stan). A lot of salads go in the bin - we get too many salads too. We can't afford to buy fish and chips all the time, instead of eating Barry's cooking. Some of Barry's sweets are alright; some are disasters. One dessert was "Quik" (chocolate) and plums, with nothing else. The macaroni cheese is strange; the wrong colour and runny sometimes. Yesterday it was just mince and toast for breakfast - a lot went in the bin. This has been going on for years with Barry's cooking - nothing's been done about it - why? - the sheilas can cook - Rhonda is brilliant - she beats Peter at times. We don't know what to do about it, but enough is enough. There are other guys who feel this way - others won't sign a petition because they're afraid of reprisals - he treats us like a piece of shit since we put the last complaint in - he looks down on us like second-class citizens - its not right - we do our work too. He leaves about 5.30pm - thats early - one night when he cooked hot-dogs he left at 5.15. He comes up to us to try and get praise for his cooking - it's harassment, - it's intimidation - he stirs me up about my girlfriend (Jason) - he stirs me all the time (Ron). If this petition doesn't do any good, we'll do another one. He's got a chip on his shoulder - we can't handle his shit as well as our own. G. L. Wood J. Lorriman S. Puzey Ron Bladon [Dictated to Ian Burns, CNS/NM, Whitby Falls Hostel: 1300 - 1330 pm 29/9/95 (signed) ]" Mr Wood, who gave evidence, verified the accuracy of this record of their complaints, and the manner in which he became involved. I accept Counsel for the Employer's contention that Mr Wood did not appear to be a person who would be easily led, by Mr Burns or by anybody. I accept Mr Burns' evidence concerning the events leading up to the transcription of the complaints. Mr Burns says he was surprised when the residents moved beyond the complaints about Mr Wright's cooking and began accusing Mr Wright of harassment and describing his interaction with them. 4 October 1995: Written Complaint put to Mr Wright This hand-written document was put to Mr Wright at a meeting held at 10.00am on Wednesday, 4 October 1995 between Mr Simpson, Mr Larson, Mr Wright and Mr Kennedy. A memorandum prepared by Mr Kennedy, headed "Whitby Falls Meeting 2" describes the meeting. The evidence was that the initial part of the meeting was attended byMessrs Simpson and Kennedy with Mr Wright. Mr Wright was given the opportunity to read the document in full, though in fact he merely glanced at it. I accept that he understood the complaints to be limited to his prowess at cooking, and that he was not aware of the complaints about his behaviour. Mr Wright reacted dismissively to what he understood to be complaints about his cooking, denying that they had any foundation. Mr Wright then left and the others were joined by Mr Larson. It is unclear if Mr Wright returned to hear the conclusions of the meeting. I find on balance he did not. The memorandum records discussion at the meeting as follows: "At this meeting we discussed a complaint which had been made about Mr Wright, a member of the Hotel Service staff, by a number of patients. The meeting finished at approximately 11.30am with the following recommendations: 1. Barry would under the supervision of both the Head and Second cooks. 2. Mr B. Kennedy would look into the possibility of sending Barry on some self improvement courses. 3. Mr B. Kennedy would provide more suitable clothing to cover Barry's kidneys. 4. At the last resort Mr M. Jones' vacated hours will be replaced and Barry would be put back on to pots only." The evidence was that all participants in the meeting left the meeting confident that any complaints had been dealt with and that the problem had been sorted out. Had nothing further occurred, the recommendations would appear to have been an appropriate response to the situation, involving as they did increased and varied supervision, proposed training to improve Mr Wright's communication skills and, in the absence of improvement, the cessation of Mr Wright's cooking. A Resident Complains of Further Abuse However, Mr Burns says that Mr Wood approached him after lunch on the same day to say that Mr Wright had subjected him to some kind of verbal abuse at lunch time, that is, immediately after the meeting. Mr Burns says he suggested that Mr Wood see Dr Ann Troup, the Hostel's consultant psychiatrist, the next day and put the complaint to her. Mr Wood gave evidence that was not inconsistent with Mr Burns' account. Mr Burns' evidence serves to explain the actions of the residents the next day. 5 October 1995: The Residents Complain to the Psychiatrist The following day, Thursday 5 October 1995, Dr Troup visited the Hospital and conducted her usual round of consultations. In the course of the morning, she received what she described as "a deputation". The four residents who had signed the original written complaint reiterated that complaint to Dr Troup. Mr Burns was present during this morning interview. He recalls the residents complaining that Mr Wright verbally harassed them. He couldn't remember whether they raised anything new, though he thought they might have. Residents Complain of Still Further Abuse Mr Burns gave evidence that, as he and Dr Troup were having lunch after the consultation during which Dr Troup had received the deputation, he noticed Mr Wood and Mr Lorriman sitting on the steps to the entrance of the Hostel. He noticed that Mr Lorriman appeared to be distressed. When Mr Burns asked them what was wrong, they said that Mr Wright had "had another go at" Mr Lorriman over lunch. He recalls being told that Mr Wright had called Mr Lorriman "Loverboy" and that Mr Wright had talked to him about speaking to the doctor. Mr Burns says he came back and told Dr Troup. They then went back over to the office, brought Mr Wood and Mr Lorriman in and Dr Troup interviewed the two of them again. Mr Burns says Dr Troup was quite angry, given that Mr Wright had previously been interviewed about such conduct on 4 October 1995. He says Dr Troup called Mrs Roseveare, and then wrote a letter to her. Dr Troup's recollection of these events is not clear. She is not sure if she spoke to the patients after lunch, and does not recall going into any depth. She thought she may have written the letter the next day. She does recall that she was aware they had once again been offended by Mr Wright's behaviour at lunch on Thursday 5 October 1995. Mr Woods recalled the comment having been made to Mr Lorriman about his girlfriend, but was not asked when. On balance, I accept Mr Burn's evidence on this matter, to the effect that he received complaints from residents that Mr Wright on two occasions after the meeting on 4 October 1995, namely during the luncheon meals on 5 October and 6 October, made comments which the residents regarded as intimidating. When Dr Troup first gave evidence about the residents' complaints to her, there was originally no indication that these complaints were made over the course of two interviews. I accept that her evidence probably mixes complaints made before lunch by all four residents with complaints made after lunch by Mr Lorriman and Mr Wood. Similarly, I accept that at some stage Dr Troup made a telephone call to Mrs Roseveare, following an interview with the residents and in their presence, at which she summarised the complaints and sought action. It is not clear whether this occurred after the morning interview, the afternoon interview or both interviews. Mrs Roseveare made a note of a telephone conversation with Dr Troup, which was subsequently tendered. She recalls it taking place after lunch. The note reads as follows: "Gary Wood - needling them for years. When reported to staff were fobbed off (Jim Nelson) Ian just helped us by writing things down as we spoke and then read them back to make sure. Stan Pussey } Illiterate. Jason - "Hello Lover Boy - have you been whispering to the Doctor again - Not suitable to be in close proximity of psychiatric patients and is detrimental to their well being and rehabilitation." The evidence was that this note reflected the content of the discussion between Dr Troup and Mrs Roseveare. I accept on balance that this telephone call was made in the presence of Mr Wood and Mr Lorriman after lunch on 5 October 1995. In any event, I accept that Mrs Roseveare was told by Dr Troup that the complaints included complaints about incidents after that meeting. For completeness, I now summarise Dr Troup's recollection of the matters raised with her that day by the four residents. She describes Mr Wood as being the initial spokesman for the group, complaining that Mr Wright was repeatedly rude to them, and displayed a rude attitude. Mr Wood complained of receiving inferior food. He complained that Mr Wright made Mr Lorriman the butt of his humour. Mr Lorriman confirmed that he was distressed by things said to him by Mr Wright, particularly teasing about his girlfriend. He complained Mr Wright called him "Lover Boy". Mr Bladon's chief concern was that he was spending his money buying food from outside the Hostel because he didn't like Mr Wright's cooking. Mr Pusey was supportive of the others' complaints but added little. The letter from Dr Troup to Mrs Roseveare, ultimately dated 6 October 1995 but prepared on 5 October 1995, relevantly provides as follows: "Further to our phone conversation of the 5th October, this letter is to confirm that on the 5th October 1995 while I was attending Whitby Falls Hostel, I was approached by a deputation of four patients. They had previously signed a written complaint. The object of their complaint was the behaviour of the kitchen-hand Mr Barry Wright. Each of them independently described an episode (sic) rudeness from him when they went to get their meals, such that they were missing meals in order to avoid his verbal abuse. As they are all pensioners and paying full board to Whitby Falls, going to Mundijong to buy food is a very expensive alternative. They also expressed complaints about the quality of his cooking. There is nothing in the mental health of any of these four men which will invalidate their complaints. A situation where such disempowered and disabled people are subject to abuse cannot be allowed to continue. I would appreciate your prompt action in this matter." 6 October 1995: Further Complaints Put to Mr Wright The meeting organised by Mr Moody on the morning on Friday, 6 October 1995 at the Hostel as a result of the complaints was attended by Mr Moody, Mr Kennedy, Mr Burns, Mr Simpson (the head cook), Mrs Lil Bateman (the Union shop steward from another institution) and Mr Wright. Mrs Bateman was present at the invitation of the management. Mr Wright was not forewarned of the meeting. The others met for some time before Mr Wright joined the meeting, discussing options for the response to and investigation of the complaints. It was resolved that Mr Wright be at least temporarily removed from the Hostel, after the alternative of his remaining at the Hostel without patient contact was rejected as impractical. Mr Wright was advised that there had been complaints against him of intimidatory behaviour towards residents. His response was "Where, when and who's the witness?" Mr Burns answered "Wednesday and Thursday afternoon" (ie 4 and 5 October 1995) and said that one patient was a witness for another patient. Mr Wright claims he was given no more detail of the allegations. Mr Kennedy suggests that Mr Wright was told that he was alleged to have made the remarks at the serving hatch, but he is not sure. Mr Moody maintains that he told Mr Wright that the complaints concerned incidents in the serving area of the kitchen. Mr Burns and Mr Simpson don't recall this detail. Mr Moody recalls Mr Wright suggesting that because the complaints were from mental health patients, it wasn't necessary to believe them. Mr Wright was told that Dr Troup believed the residents' complaints. Mr Wright asked for the allegations in writing. Mr Moody, who it seems had not yet received Dr Troup's letter, said that would be provided at a later date. He had with him the residents' earlier written complaint, but understood Mr Wright to have already read it, so did not refer to it. The possibility that Mr Wright could be transferred to an orderly position at the Hospital was raised with him at this early stage, but he rejected it, asserting that he had done nothing wrong. He asserted that Mr Burns was behind the complaints. Mr Wright's responses were consistent with a perception on his part that the relevant conflict was that between himself and Mr Burns, rather than himself and the Residents. He proposed, for example, that it was Mr Burns rather than he who should be transferred. He said things in the course of the meeting which can fairly be described as personal taunts toward Mr Burns. Given the need to investigate the complaints, the management representatives went on to advocate Mr Wright's absence on stress leave pending the completion of the investigation. Mr Wright objected to the idea of stress leave, denying that he was "stressed". He agreed instead to take paid "special leave". Mr Wright says his demeanour at that meeting was normal. Mr Burns described it as aggressive, surly and sarcastic, while Mr Kennedy described him as agitated, angry and upset. Mr Moody agrees that Mr Wright appeared under stress and aggressive. I have inferred from Mr Moody's evidence that Mr Wright's behaviour at the meeting was a factor he took into account in ultimately recommending that Mr Wright not be permitted to return to the Hostel. Mr Moody noted that the Union's shop steward commented after the meeting that Mr Wright "seems a bit of a nutter" and that he should not be working with mental patients. Mr Moody appears to have sympathised with that assessment. He says that before the meeting he had no view about what should happen with Mr Wright, but that after the meeting he considered there would be difficulties with Mr Wright going back. Further Investigation On 11 October 1995, Mrs Roseveare wrote to Mr Wright in the following terms: "As you are aware through the meeting held on Friday 6 October 1995 at 10.00am between yourself, Mr P. Moody, Mr B. Kennedy, Mrs L. Bateman, Mr I. Burns and Mr K. Simpson in the conference room at Whitby Falls Hostel, the complaints against you, of intimidation of Patients were discussed together with your accusation that you are being victimised by Mr I. Burns. As you will recall it was agreed that you take special leave commencing on the 6 October 1995 for a period of one week until the matter could be further investigated. The complaints of intimidation against you were originally raised by the patients who have dictated their concerns to Mr Burns and have signed a written statement indicating that these complaints as stated, are correct. In addition, and of a more serious nature a complaint has been received from Dr A. Troup, Visiting Consultant Psychiatrist, stating that when she visited Whitby Falls Hostel on the 5th October 1995 she was approached by 4 Patients (the 4 that signed the written complaint) indicating that the object of their complaint was again your behaviour towards them. Dr Troup has stated that each Patient individually was able to describe an episode where you were rude to them when they collected their meals and as a consequence they are missing meals to avoid contact with you and to avoid your verbal abuse. Dr Troup has also pointed out to me that these Patients are paying full board to the Department for their accommodation and meals and should not be subjected to any intimidation or verbal abuse in any manner whilst in our care. I am sure you will appreciate that as a Health Service we are primarily concerned with the well being of our Patients and their welfare must be ensured at all times. Consequently, and as this matter has been reported by a highly qualified Consultant Psychiatrist, I therefore direct you to remain on special leave with all entitlements for the total period commencing 6th October 1995 to 20th October 1995 inclusive, whilst a solution is determined for your future placement. During this time you are not permitted to attend the Whitby Falls Hostel or have any contact whatsoever with the patients housed there. In addition, Mr Walker, Union Representative has met with Mr Moody, Mrs Bateman and Mr Kennedy on the 10th October 1995 to discuss possible alternatives and it was agreed that Mr Walker visit staff at Whitby Falls Hostel and discuss the matter with yourself before any further action is taken. I trust that you fully understand the seriousness of the complaints made against you and should you have any questions regarding the situation please contact either Mr Walker or Mr Kennedy." Mr Wright wrote a letter in response, dated 16 October 1995. The letter is in passionate terms and much of it reflects Mr Wright's belief that he was the subject of a vendetta from Mr Burns. It includes claims that details of the allegations against him had not been extended to him for confirmation or rebuttal. He continues: "I take a pride in my cooking and tried at all times to produce meals for all to enjoy. Of course there might be a time when a meal does not quite come up to my expectations and on occasions I do ask staff and or residents how the meal was - that is only out of concern and gladly listen to any comments. It would be hard to please everyone every day - food is a very personal thing......... "After a meeting in 4 October 1995, with my superiors it was decided that I would be supervised in cooking until Monday 16 October 1995. This seemed to be the solution - it nearly was, but suddenly that was not enough, the "warning shot" didn't shake things up quite enough for some - then the hand grenade was hurled landing Friday 6 October 1995, this was the alleged intimidation and harassment of two residents. I was summoned to a meeting, stunned and emphatically denying the allegations, I immediately asked two questions - "time and place?" and "witnesses?". Ian Burns responded, "Wednesday and Thursday afternoon," no time was given, one resident being a witness for the other........ I am not guilty of these allegations - I am interested to hear about my cooking, why would I and what could I possibly say to install fear into any resident and when? - at the serving hatch - with a person either side of me? - but I would suggest a nurse would have the power to intimidate, being one who spends many hours in the residents company...... I urge those who are to disbelieve me cast me aside in haste, look a little deeper into this and maybe consider how this very distressing, unwarranted trail (sic) could and should have been dealt with - why after all my meritorious years of service has it come to this. As far as I am concerned I shall be returning to Whitby to resume my rightful position on Saturday 21 October 1995. What a tragedy it would be if Burns' petty and personal dislike for me for whatever reason, real or imagined can be taken so far out of context as to result in a miscarriage of justice. I would like to think that in a democratic situation both parties get an open and fair hearing. It is already a matter of record that Mr Burns is known for his intimidation of staff members who disagree with him and it is no secret to the staff at Whitby. To resolve this regrettable matter I challenge Burns to an officially conducted open inquiry in any Court of law where his allegations must be supported by evidence of fact." Clearly some investigations were carried out by Mr Moody, but primarily with nursing staff, despite Mr Wright's raising of the fact that he was flanked by kitchen staff when he was serving meals. There is no evidence that any of the kitchen staff was spoken to in relation to the allegations by those investigating the complaints. This was a surprising oversight. There was some support for the allegations from the nursing staff however. Mr Victor Hawkins, a mental health nurse clinician, confirmed in a hand written note to Mr Moody dated 16 October 1995 that: "I have found Mr Barry Wright to be over bearing and rude when speaking to many of the residents of Whitby Falls Hostel. He usually speaks this way to residents he knows he will get a reaction from and not people who will retaliate ie: in the form of abuse or complaint. At times he has not known the patient and has had to lock himself in the kitchen for protection. At times residents will not attend the dining room if Barry is serving meals. Barry can be pleasant but usually wants something in return ie: borrow a newspaper or get a job done. These are my observations of Mr Barry Wright in his dealings with residents of Whitby Falls Hostel. Hoping this meets your requirements." A meeting was held at 9.00am on 20 October 1995 between Mrs Roseveare, Mr Walker, Mr Kennedy, Mr Moody and Mr Wright. Mrs Roseveare conveyed to Mr Wright her view that there were sufficient grounds to decide that he should not be further employed at the Hostel, and that she would recommend that he be transferred to work at Armadale Kelmscott Hospital. Mr Moody's note of the meeting held on the morning of Friday, 20 October 1995 includes the following: "John Walker advised that he had been to Whitby Falls to talk with other staff on Barry's behaviour and could not find any major problems other than personality clashes from time to time. John felt that the current action against Barry was heavy handed and he suggested that the difficulties relate to supervision rather than Barry himself. Mrs Roseveare responded and advised that Mr Wrights cooking skills or how he related to other staff were not an issue at this time. The real issue was the verbal abuse and intimidation of the patients at Whitby Falls. The matter had to be dealt with by Management as complaints had been received from Patients and from the Consultant Psychiatrist Dr A Troup. It was clear that the Patients were fearful of Mr Wright and were purposely missing meals to avoid contact with him. According to the written complaints by patients and the Consultant Psychiatrist's letter of 6 October 1995 it is clear that that (sic) Mr Wright's continued employment at Whitby Falls is not an option that can be considered by Management. Each of the 4 patients concerned were able to describe an incident whereby Mr Wright had intimidated them. Mrs Roseveare went on to say that she in her position of General Manager had a primary duty of care to these patients, particularly mental patients, and that this must be carried out prior to any other consideration. Mrs Roseveare also stated that intimidating and antagonism by Mr Wright may not have been wilful but never the less it has had a major impact on the patients well being and cannot be allowed to continue. The meeting noted Mr Wright's written response 16 October to the allegations however it was decided that the over riding factor had to be the patients welfare...." In evidence she confirmed that it was her view, based upon speaking to Dr Troup, and the reports from Mr Kennedy and Mrs Lil Bateman, that it would not be in the best interests of the patients for him to return. She was concerned that the patients would be subject to further intimidation or harassment, and considered it inappropriate that she allow the possibility for that to occur. It was their home, and they should feel happy and secure in their home surroundings. The investigation had concluded. She says she told him at the meeting that she felt patient care had been compromised, and there was every reason to believe he had previously harassed patients after being told to have no contact. She also offered him counselling for his interpersonal skills, because she thought he came across to people as being very aggressive and very threatening. He responded that he didn't need it. Mrs Roseveare says that Mr Wright's response was that Dr Troup's evidence and that of the patients was insufficient to act upon and that he was not going to accept a transfer. Mrs Roseveare confirmed the outcome of that meeting in a letter dated 20 October 1995, which was despatched by courier to Mr Wright's address that afternoon. The relevant parts of the letter follow: "As you are aware I have made enquires into the complaints against you and I reiterate my decision not to allow you to return to your position at Whitby Falls. Notwithstanding the statements made by other staff at Whitby Falls, I have based my decision on the statement made by and conversation with the Consultant Psychiatrist, Dr A Troup and the written complaints made by the relevant Patients. As discussed today, I must consider the welfare and care of the Patients at Whitby Falls above all else and cannot allow them to be compromised in any way. Additional Evidence at the Hearing There were two shortcomings in the Service's investigation which were partially addressed by the evidence at the hearing. First, the fact that Dr Troup "believed" the residents seems to have been given undue weight. Certainly, she formed the expert view that the residents' complaints were not invalidated by their illnesses. However, that would make them as reliable as, but not more reliable than, any other witness. Dr Troup did not discuss the allegations with Mr Wright; Mrs Roseveare seemed surprised to learn this in the course of the hearing. Thus, if Dr Troup chose to believe the residents, she did so without the benefit of hearing Mr Wright's version of events. There was no suggestion that Mr Moody had the opportunity of interviewing the patients. Thus no individual in the management of the Employer had the opportunity of assessing and comparing the accounts of all of the relevant witnesses. The other matter, to which I have already alluded, is the fact that the kitchen staff were not interviewed by Mr Moody. Many of the allegations concerned Mr Wright's dealings with the patients while serving them food. He was flanked by other kitchen staff when performing that task. If he was behaving inappropriately, the other kitchen staff should have been in a position to witness it. It appears these independent witnesses were not asked. The Evidence of the Residents The written and hearsay accounts of the residents' original complaints were supplemented at the hearing by the evidence of Mr Gary Wood and Mr Michael O'Neil, both of whom were residents of the Hostel at the relevant time. Dr Troup explained that Jason Lorriman, Stan Pusey and Ron Bladen were not called to give evidence because Mr Pusey and Mr Bladen were not competent to give evidence and because Mr Lorriman was no longer at the Hostel; his whereabouts is unknown. Mr Michael O'Neil is 31 years of age and has resided at the Hostel since about February 1995. He had also previously been a resident for nine months in 1990. On both occasions he had dealings with Mr Wright. He was not one of the residents who complained to Mr Burns or to Dr Troup. Mr O'Neil cited examples of behaviour on the part of Mr Wright which he found distressing. Mr O'Neil told the Court that Mr Wright would tell him things about other people to "keep to myself". Mr O'Neil didn't like these discussions, because felt he shouldn't be listening to the things Mr Wright told him. Mr O'Neil says, for example, that Mr Wright told him about two male residents, whom he named and one of whom has since died, having anal sex up the back of the Hostel. He says Mr Wright would complain about Mr Burns, and would talk about the other residents, calling them names, and look for some sign of appreciation from Mr O'Neil. Mr O'Neil says these discussions made him "nervous" and "sick inside". He felt as if he had to tell someone about them so that he didn't get too sick. Mr O'Neil also claims that Mr Wright belittled people for no reason. He says that as residents came up for a meal at the servery Mr Wright would swear at them. He says Mr Wright had names for each of the residents, such as "poofter" and "wanker". Mr O'Neil didn't like going in for meals. In cross-examination, Mr O'Neil conceded that it was not uncommon for residents and sometimes staff to swear, but said he didn't appreciate it. He added that Mr Wright swore in a hurtful way. Mr O'Neil says that Mr Wright used to talk to the residents about the food, going on about how fantastic it was. Mr O'Neil did not have a high opinion of the food. Mr O'Neil says he found the other kitchen staff excellent. He went on to say that he gets "paranoid" quite easily, and sometimes feels as though they are saying things about him. He says that the fact that the other staff always say "good morning" to him and smile helps him. More generally, Mr O'Neil says he was left with the impression that Mr Wright was treating him as if he were an animal. He did not feel he was being treated with respect. Mr O'Neil pointed out that that was not why they were at the Hostel. Mr O'Neil described Mr Wright's behaviour as "undermining" the Hostel with his attitude, because he didn't care about the residents. Mr O'Neil says that Mr Wright was worse during Mr O'Neil's more recent stay. Finally, Mr O'Neil says that since Mr Wright left the hospital there had been better meals and a friendlier atmosphere in the dining room. He said he would probably move if Mr Wright returned to the Hostel; he says he had been considering moving before Mr Wright left. Mr Garry Wood is 35 years of age and has been a resident at the Hostel for eight years. He has known Mr Wright all that time. Mr Wood says that Mr Wright had a grudge against him; he does not know why. Mr Wood alleges, for example, that Mr Wright had consistently "shortcut" his meals. He described an occasion some years ago when Mr Wright smiled at him as he gave another resident a large steak, and then give Mr Wood a smaller piece, about half the size, with a smirk on his face as he did so. Mr Wood had usually been working all day on the Hostel tractor, and would be hungry. They paid for meals through the Hostel. He says Mr Wright always gave him less than the other residents who didn't work. He says Mr Wright's behaviour would get him "worked up". Mr Wood says he just "shut up" and put up with what he got because he didn't know his rights; he'd rather have little than nothing at all. Mr Wood also told of one Sunday night some years ago when he came in about 20 minutes late from work, when the meal was fish and chips. Mr Wood had been working overtime that day. The meal had begun at 5:00 pm. Because Mr Wood did not eat fish, he would be given cold meat instead. On that night, Mr Wright told him that there was no cold meat left, and not even any chips. Mr Wright served him some scraps of batter from the plate where the fish was. Mr Wood walked out and went hungry that night. Mr Wood says Mr Wright did not have discussions with him of a personal nature, but that he had heard Mr Wright "interrogating" other people, talking about their personal and private life and their illness, when in Mr Woods' view he should have been in the kitchen. He described Mr Wright approaching the residents outside the dining areas and asking how his cooking was, in such a way that he was demonstrating that the residents were too scared to complain about it: "He demands a good answer, sort of thing, rather than a knock back and everyone's too... afraid to say anything different". Mr Wood says that Mr Wright was always "stirring up" Ron Bladon, another resident. He gave no detail of what it was Mr Wright did which would upset Mr Bladon, but he gave evidence that Mr Bladon would become upset, swearing and cursing. Mr Wood says that after they spoke to Mr Burns, Mr Wright started intimidating them. At one lunchtime, while Mr Wood was waiting to be served his meal, he says Mr Wright said to Mr Larson "I wonder if Gary's seen the doctor today too?" so that Mr Wood could overhear. Mr Wood took this to be a reference to their complaint about him. Mr Wood complained about this incident to Mr Burns. Mr Larson does not recall such a thing being said. Mr Wood says that Mr Wright was having a go at Jason Lorriman as well and it was getting Jason upset. He can't now remember what was said. In general terms, Mr Wood says Mr Wright made him feel "like an idiot" or a second class citizen, because he was overpowering them. He had the power to dominate them, and they felt powerless to be able to do anything. Mr Wright made them feel like they were just a "bunch of lunatics" and that they didn't deserve any better, so that he could do anything to them he wanted and get away with it. Mr Wood says that when Mr Wright was in the kitchen, he didn't want to go in there, because of the poor food and not wanting to hear his "verbal garbage". He says he would "stir people up and make a big man out of himself". He added: "...every one else tries to help you... He doesn't have to help you... he's a god, sort of thing that thinks he's above and beyond everybody else and they... have to put up with what he dishes out, like it or lump it." Mr Wood volunteered that it had been very peaceful without Mr Wright. He added that it was a better atmosphere, that people were more relaxed and that there are not the arguments and fighting and "carrying on" now that used to happen when he was there. The meals are also better. He believes that, if reinstated, Mr Wright would be "on top of us"... "He'd be so pig-headed and big-headed about winning everything and getting his job back again. No, you couldn't stand that... it wouldn't work out." "He'd be too cocky". Obvious questions arise as to the reliability of the evidence of Mr O'Neil and Mr Wood given their psychiatric conditions. Mr O'Neil had clearly given some thought to the evidence he would give, and it was apparent in the course of cross-examination that he had had discussions with staff members about Mr Wright prior to the hearing. He did not however convey the impression that he had been coached in his evidence; his evidence appeared to me to reflect his own genuinely held concerns about Mr Wright's behaviour while he was at the Hostel. Mr O'Neil told the Court that he hears "voices" nearly every day. When questioned about this phenomenon, he offered the following explanation: "...it's like me talking to you now, I might stop talking then I hear your tone of voice saying bad things about me. And I go: what do you mean, and you say: what? And I say: you just said something, and you'll go: I didn't say anything. It's like that... People say - the voices come across in - ie Barry [Wright]'s voice, or Gary [Wood]'s voice - and you can't determine whether they said it or they didn't say it until you ask them. I asked Mr O'Neil how he could be sure that, when he thought he heard Mr Wright abusing him and other residents when he was serving meals, it was not one of the voices in Barry's tone of voice. His immediate response was that some of the abuse was "face to face". In addition, other residents, including Jason Lorriman and Gary Wood, had come out of the dining room almost in tears and told him (face to face) that Mr Wright had picked on them, and what he had said. With regard to Mr Wright telling him about an incident involving homosexual activity at the Hostel, Mr O'Neil was sure "I heard him say it, because we were together and we were looking at each other". He went on to add: "the voices I get are commentary voices. It's like going to the footy and listening to the commentator. That's what they're like. They comment on me. And they take the voice of the person I'm talking to. They comment. Like, in a nice way. They only other way is they say: oh, kill yourself. And they've never said that to me. So I know that Barry would be telling me something about the staff - bad, something bad... they're commentary voices and they're friendly, apart from the one word "kill yourself" - two words." He added later that ninety percent of the time it was a women's voice. Mr O'Neil's explanation of the nature of his illness was broadly confirmed by Dr Troup. Mr Wood told the Court that he suffered from schizophrenia and that he had memory problems as well. He says he memories are there but he doesn't have access to them - they come and go as they want. Dr Troup confirmed her diagnosis that Mr Wood suffered from chronic paranoid schizophrenia, which was reasonably well controlled by medication. Dr Troup, when discussing her assessment of the residents' complaints, said: "...when any person with schizophrenia, particularly someone who's got a tendency to be paranoid, comes in with a complaint, you respond to it in terms of whether or not this is part of a complex delusional system, or a recurring delusional theme. That wasn't so for any of these men. Gary Wood's delusions have in the past mostly involved homosexuality. And he has got a particular fear of homosexuals. And it wasn't consistent with the type of paranoid ideation that Gary Wood develops. Similarly with Jason, it wasn't consistent with his normal type of abnormal ideation. ...if each had presented whatever was characteristic of their illness, ... and it had been aimed at Mr Wright - I would have expected Gary Wood to have included a great deal of homosexual allegations; I would have expected Jason to be being very volatile, and possibly even a bit incoherent when he's volatile, he'd lose the thread of what he's saying. None of that was present. They appeared to be thinking clearly and rationally, and this did not appear to be delusional material. ... The quality of the way [Mr Wood] expressed himself at that time [when he was ill] is somewhat different. There's a level of intensity and suspiciousness and his speech tends to become monothematic in the sense of just harping on the one idea, instead of being able to move between ideas. The Evidence of the Kitchen Staff The Court also heard from two of the kitchen staff, the two cooks, who do not appear to have been spoken to during any of management's enquiries into the allegations against Mr Wright. Neither party called the kitchen attendants to give evidence; no explanation was given for the decision not to call them. Mr Kelvin Simpson and Mr Peter Larson are the head cooks at the Hostel. They supervised different shifts in the kitchen, and Mr Larson answered to Mr Simpson. Mr Simpson had been head cook since July 1995, and had been cooking at the Hostel since early 1992. He has worked with Mr Wright at the Hostel, though he didn't work with Mr Wright much until he became a leading hand. Mr Wright and Mr Larson preferred to work together. When Mr Simpson became a leading hand, he arranged for the kitchen hands to rotate, so that Mr Wright worked with each of the cooks on alternate months. He worked with Mr Wright in August 1995, until Mr Larson and Mr Wright arranged to have them revert back to the old arrangement. Mr Simpson says that on those occasions when he served up food alongside Mr Wright, the manner in which Mr Wright interacted with the residents was "okay". He does not recall Mr Wright doing anything inappropriate. Nor did he recall witnessing Mr Wright interacting inappropriately with residents in other contexts. Mr Larson had worked at the Hostel for four years. He and Mr Wright usually had the same shifts, and worked together. Mr Larson says that Mr Wright was "pretty jovial to the residents". He would talk to them jokingly. He says Mr Wright had a pretty good rapport with most of the staff there. He described Mr Wright as "pretty straightforward", and agreed that Mr Wright was direct and, on some occasions, blunt in his communications, but said he did not come across as an aggressive person. He says he never saw Mr Wright upset any patients. He advocated Mr Wright taking a course at the meeting on 4 October 1995 so that he could learn to speak to people a little more nicely and to carry himself. Mr Larson was specifically asked about the lunch on 5 October 1995, when he served the meal alongside Mr Wright. In his view, nothing unusual happened. He recalls Mr Wright asking residents how they have been, and similar questions. He recalls Mr Wright asking Jason Lorriman whether he was going home on the weekend to see his girlfriend. He says it was asked jovially and did not strike him as unusual. He does not recall Mr Lorriman's response; he just grabbed his meal and walked off. Mr Larson confirmed that it had been a little bit more relaxed in the dining room since Mr Wright left. He said there was not the tension. He said that while Mr Wright's reinstatement would be good for Mr Wright, but would not be good mentally for the residents who made the complaints. Mr Larson would have no difficulty were Mr Wright reinstated. The evidence of Mr Hawkins, a nurse, was mostly general in nature, but was broadly supportive of the resident's evidence. Conclusions Concerning Mr Wright's Behaviour. Because of the manner in which the case was conducted, I am better placed to make an assessment concerning Mr Wright's conduct than the Service's management had been at the time it made its determinations. Having considered all the evidence, and particularly that of Mr Wright, Mr Wood, Mr O'Neil and Mr Larson, I generally accept the evidence of Mr Wood and Mr O'Neil concerning Mr Wright's behaviour. Mr Larson clearly felt some loyalty to Mr Wright, and his evidence was generous in its assessment of his behaviour. His evidence as to the improvement in the position since Mr Wright left was therefore all the more striking. The theme of the resident's evidence was that Mr Wright did not treat them with dignity and respect. Reference was made to the lack of training given to Mr Wright in dealing with psychiatric patients, and I have considered the possibility that the resident's complaints were merely the product of his lack of training and an "unfortunate manner". On balance, however, I think it more likely that Mr Wright's behaviour was not accidental, but rather reflected a lack of respect for the residents. Further, once the residents complained in writing, Mr Wright's reaction to the complaints, in taunting Mr Lorriman and Mr Wood, and then in refusing to acknowledge any shortcomings in his behaviour, made it more difficult to address the problem by seeking to modify his behaviour. It became important that the residents feel that the Hostel was responsive to their concerns. My findings as to Mr Wright's conduct are therefore such that his conduct would, in my view, have justified a decision to refuse to allow him to return to his position at the Hostel. However, given the nature of the employer and its capacity to remove Mr Wright from the Hostel without dismissing him from his employment, it would not necessarily have constituted a valid reason for dismissal. Had Mrs Roseveare immediately moved, without more, to dismiss Mr Wright, it is likely that Mr Wright's conduct would not have been found to be a valid reason for such a dismissal. However, the Employer did not ultimately dismiss Mr Wright until Mr Wright had first refused an offer of the transfer to a nearby hospital. That effectively left the employer with only two options; either to allow Mr Wright to return to his position in the Hostel, or to dismiss him. Mr Wright contends that there was a further option. He says he could have received training of the sort received by other staff at, for example, Fremantle. I accept that Mrs Roseveare could reasonably reject this option. Mr Wright had a history of interaction with the patients at the Hostel which would not be erased by training, such that his presence at the Hostel could in itself be a cause of distress to patients, whatever his future behaviour. Further, his response to the claims against him was one of denial of any shortcomings in his behaviour, which would not bode well for the success of such training. In the circumstances, the Service was justified in opting to transfer Mr Wright away from the Hostel. Given his refusal to accept the transfer, I find that Mrs Roseveare's decision to terminate his employment was justifiable, and for a valid reason. Whether Mr Wright Had an Opportunity to Defend Himself Against the Allegation The Service gave Mr Wright ample opportunity to respond to the allegations against him, both at the meeting on 6 October 1995 and in the subsequent weeks. While there were shortcoming's in the employer's investigation, Mr Walker of the Union, whom Mr Wright clearly authorised to act on his behalf, was able to visit the Hostel and investigate the complaints. I am satisfied that the requirements of Section 170DC were met. Breach of Section 170DB I note that Council for the Employer concedes that, if there was a termination at the initiative of the employer, then payment of five weeks' notice is due under section 170DB. Conclusion I will therefore order that within 14 days the respondent pay to the applicant as damages pursuant to Section 170EE(5) an amount equal to the amount the respondent would have been liable to pay the applicant if the applicant's employment had continued for a further five weeks.