Industrial Relations Commission New South Wales Medium Neutral Citation: Naylor v Health Secretary on behalf of Illawarra Shoalhaven Local Health District [2020] NSWIRComm 1051 Hearing dates: 27, 28 and 29 May 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The ISLHD is ordered to pay to Ms Naylor a sum equivalent to 8 weeks' pay calculated at the rate of pay applicable to the position occupied by her immediately before the termination of her employment on 28 January 2020, such payment to be made within 21 days of the date of this order. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – registered nurse dismissed for accessing patient records without clinical justification and dishonesty – whether dismissal harsh, unreasonable or unjust – consideration of remedy to be ordered Legislation Cited: Health Services Act 1997 (NSW) s 116(3) Industrial Relations Act 1996 (NSW) ss 84, 88, 89, 164A Cases Cited: Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: Cassandra Naylor (Applicant) Health Secretary (Respondent) Representation: Counsel: L Saunders (Applicant) Solicitors: Bowrey Lawyers (Applicant) J Mattson, Bartier Perry (Respondent) File Number(s): 2020/363371 Publication restriction: Pursuant to section 164A(3) of the Industrial Relations Act 1996 (NSW) the Commission orders that: (a) The patients identified by name and/or MRN identification number in documents lodged with the Commission or received in evidence by the Commission in matter number 2020/00363371 be dei-dentified and referred to in any decision published by the Commission by pseudonym only. (b) The Commission prohibits the publication or broadcast of the patient names and patient MRN identification numbers contained in documents lodged with the Commission (see below) or received in evidence by the Commission in matter number 2020/00363371. The documents subject to this order are: (i) the affidavits of the Applicant, the submissions filed on behalf of the Applicant, the reply submissions filed on behalf of the Applicant; and (ii) the statements of Franca Facci, Angela McHugh and Leanne Savio, the Exhibit "Respondent's Documents" and the submissions filed on behalf of the Respondent. (c) That access to the file of the Commission in matter number 2020/00363371 is restricted to the extent that no person or organisation may be granted access to the files other than a party prior to consultation by the Industrial Registrar with both parties to determine whether there is any objection to such access being granted. Judgment 1. Cassandra Naylor was employed with the Illawarra Shoalhaven Local Health District ("ISLHD") [1] as a registered nurse. She was dismissed with immediate effect on 28 January 2020 as a result of findings by the ISLHD that she had engaged in misconduct by accessing the records of seven patients without clinical justification for doing so, and for dishonesty during the process by which the ISLHD investigated those incidents. 2. Ms Naylor asserts that her access of the patients' records was for legitimate clinical reasons. She denies any dishonesty. She has brought proceedings pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act") alleging that her dismissal was harsh, unreasonable or unjust. She seeks reinstatement to her position. Non-publication order 1. At the commencement of the hearing Mr J Mattson, who appeared for the ISLHD, sought orders to suppress the names and medical record numbers ("MRNs") of patients referred to in the evidence and submissions. He handed up proposed draft orders. Ms L Saunders of counsel, who appeared for Ms Naylor, made no objection to those orders being made. On that basis I made orders pursuant to s 164A of the Act in accordance with the draft orders provided to me by Mr Mattson. 2. In keeping with those orders I was provided with a list of pseudonyms, agreed by the parties, by which to refer to the relevant patients. I have adopted those pseudonyms in this decision. Evidence 1. Ms Naylor read two affidavits that she had affirmed on 21 February 2020 and 23 April 2020. Mr Mattson raised objections to some of the contents of the first affidavit on the grounds of relevance. The affidavit was admitted into evidence subject to the weight to be given to the evidence in respect of which objection was made. I have considered the evidence on that basis. 2. The ISLHD tendered two folders of documents titled "Respondent's Documents". I will adopt the same term to refer to those folders. 3. The ISLHD relied on statements made by: 1. Franca Facci, the Acting Director, Ambulatory and Primary Health Care with the ISLHD, dated 1 April 2020; 2. Angela McHugh, an Intake Officer – Registered Nurse in the Access and Referral Centre of the ISLHD, dated 1 April 2020; and 3. Leanne Savio, an Intake Officer – Enrolled Nurse in the Access and Referral Centre of the ISLHD, dated 1 April 2020. 1. Several additional documents were tendered into evidence. It is not necessary to separately list them. Background 1. Ms Naylor commenced working with the ISLHD, as it is now called, in 1990, when she was 18 years old. She was first employed as an enrolled nurse. Having obtained a nursing degree in 2004, she was thereafter employed as a registered nurse. 2. In 2006 Ms Naylor fractured her spine at work. Her injury left her unable to perform ward duties as a registered nurse. She developed anxiety and depression which required her to consult a psychologist and to be prescribed medication. Ms Naylor continues to take medication for that condition and consults both a psychologist and a psychiatrist. 3. In approximately 2008 Ms Naylor was assigned to the position of Intake Officer for Community Health, based in the Access and Referral Centre ("ARC") at Port Kembla Hospital. That remained her substantive position until the termination of her employment. 4. Ms McHugh, who occupies the same position as that held by Ms Naylor, described the work of the ARC and her role in some detail. It is convenient to reproduce some of her evidence as follows: [2] "18. The Access and Referral Centre, or ARC is a centre within ISLHD that helps patients access community health services in the Illawarra and Shoalhaven regions. The ARC 'links' people with the most appropriate community health service for their care. The ARC is staffed primarily by nurses. 19. Within the ARC, there are a number of programs being undertaken. 2 of those programs are undertaken by Intake Officers who are Registered Nurses only. These programs are: 19.1 Connecting Care; and 19.2 the 48 hour Follow-up program for Aboriginal patients (the 48 hour program). 20. Connecting Care and the 48 hour program are facilitated by Registered Nurses because it has been determined that these programs require a higher degree of clinical expertise. The remaining programs facilitated within the ARC are primarily completed by Intake Officers who are Enrolled Nurses as those programs generally require lower levels [of] clinical expertise. 21. Connecting Care is a program which is designed to identify patients who have recently been discharged from hospital with chronic conditions who might benefit from community health support. … 22. The 48 hour program is a little bit broader than Connecting Care in that it may be available to patients without a chronic condition (as it involves the patient being referred to community based health service, such as the Aboriginal health service). … … Our Access to Personal Information and Patient Records 24. My work in Connecting Care and the 48 hour program require[s] me to access various systems and information which [is] entrusted to NSW Health and ISLHD. 25. I access the NSW Health information technology (IT) system and a number of programs that record data and personal and health information. I only get access by username and password which is unique to me. Two of the main systems are: 25.1 the Portal which is a workflow system for Connecting Care and the 48 hour program…; and 25.2 the electronic medical records program which is known as eMR. eMR is the program that stores a patient's private medical records, including for example, reports from doctors, notes regarding conditions and treatment and other medical information. The Portal 26. The Ministry of Health has generated an algorithm which screens patients who have been discharged from hospitals in a Local Health District so as to identify those patients who may benefit from a community health program. The details of those patients identified by the algorithm are then uploaded into the Portal which is essentially a workflow program. All of the work undertaken in relation to Connecting Care and the 48 hour program is generated by and through the Portal. 27. In both Connecting Care and the 48 hour program, work is assigned through the Portal. There is no reason for an Intake Officer to access a patient's medical records if that patient has not appeared on the Portal and there was not a referral from another source like a General Practitioner, Community Health Nurse, nursing staff, a non-health agency or the patient themselves. 28. The Portal is updated continuously with the details of the patients which have been identified by the algorithm, and who have been discharged from hospital, and who may benefit from a community health program. That is, the Portal system is 'live'. 29. Each morning, the Intake Officer will review the list against the relevant criteria and undertake a triaging process." (Sic, emphasis in original) 1. The "Portal" to which Ms McHugh referred in her evidence was otherwise described as the "Patient Flow Portal" ("Portal"). As Ms McHugh stated, the ISLHD uses an algorithm to identify which of those patients who have been discharged from hospitals in the Local Health District should go onto the Portal to be considered for referral to a community health program, such as Connecting Care and the 48 hour Follow Up program (jointly, "the Programs"). The triaging process for the Programs – that is, determining which of the patients may benefit from referral to one of the Programs – is undertaken by registered nurses, reflecting the level of clinical judgment which the Intake Officer is called upon to exercise. 2. The triaging process is described in a document titled "Procedure Manual Connecting Care in the Community Program" ("Procedure Manual"). The Procedure Manual includes a notation to the effect that it had been amended to include "Access and referral Processes", completed by Ms Naylor on 10 May 2019. Ms Facci accepted under cross-examination that the Procedure Manual accurately reflected the process as at that date. 3. The ISLHD adduced significant evidence as to how employees, including Ms Naylor, are made aware and reminded of their privacy obligations. This included policy documents such as the NSW Health Code of Conduct and the NSW Health Privacy Manual for Health Information, training materials and staff communications. Each of the ISLHD's witnesses deposed as to the significance of patient privacy in the performance of their duties. 4. It is not necessary to explore this evidence in detail. Ms Naylor stated that she was aware of the importance of maintaining patient confidentiality and that she was permitted to access patient records only for the purposes of performing her role. She had undertaken privacy training. She did not suggest that she was unaware of the policies and other documents on which the ISLHD relied. 5. In a letter dated 28 August 2009 Ms Naylor received a "first and final warning" after she was found to have inappropriately looked at her sister's medical records. The letter reminded Ms Naylor of her confidentiality obligations. 6. In 2018 Ms Naylor was the subject of an investigation into allegations that she had inappropriately accessed the patient records of an individual whose involvement in a road accident had generated significant media interest ("Patient AB"). Ms Naylor defended her conduct on the basis that she was using her downtime to increase her knowledge on the treatment of head trauma. The investigation found that Ms Naylor had inappropriately accessed Patient AB's medical records. In a letter to Ms Naylor dated 18 April 2018 Margot Mains, the Chief Executive of the ISLHD, stated that a recommendation had been made to terminate Ms Naylor's employment and that she was inclined to accept that recommendation. However, following a further letter from Ms Naylor to Ms Mains and a meeting between them, Ms Naylor received a "formal warning" in a letter from Ms Mains dated 4 July 2018. Once again, Ms Naylor was reminded in the letter of her confidentiality obligations. Ms Naylor was placed on a performance improvement plan. 7. On 20 May 2019 Ms Naylor accessed the medical records for Patient X, who had died on 18 May 2019 in an event which attracted some local media interest. 8. On 30 September 2019 Ms Naylor was provided with a letter from Ms Facci dated 2 September 2019. The letter requested that Ms Naylor explain why she accessed Patient X's electronic medical record ("eMR") on 20 May 2019 and how that access was relevant to fulfilling her work duties, as Patient X was recorded as "Deceased" in the Portal on 18 May 2019. 9. Ms Naylor responded to Ms Facci in a letter dated 8 October 2019. Her letter included the following: "I was allocated to the Aboriginal 48hr Follow Up program. [Patient X] was on the Patient Flow Portal. This was relevant to fulfilling my work duties as I accessed his file to see what the reason was for him being on the portal and if I was required to ring him as part of the 48hr Follow Up Program. I did not know he was deceased until I read his notes in EMR. If he was recorded in the portal as being deceased I did not see it. It isn't visible when you are in a client's file in the Portal. If he was recorded in the portal as deceased on the 18/5/19 then he shouldn't have appeared on the portal at all… … This is extremely distressing for me as I know I can't access files that are not related to my work duties." (Sic) 1. The ISLHD determined to investigate Ms Naylor's access of Patient X's records. On 29 October 2019 Ms McHugh, Ms Savio and Annie Lewis, another registered nurse in the ARC, were interviewed as part of that investigation. 2. Also on 29 October 2019 Ms Facci wrote to Ms Naylor in reference to Patient X. The letter stated that on the basis of "further information" that had been received the following allegations "must now be put to" Ms Naylor: "• That on the morning of 20 May 2019 you became aware via the media and during discussions with other staff members in the ARC that patient MRN [number withheld] was deceased. You were warned by staff members within the ARC not to access the patient's eMR, however at 9.09am you accessed the record without any clinical justification for doing so. • That you were deliberately deceitful in your response to the Acting Director of Ambulatory & Primary Health Care in stating that you were unaware that the patient was deceased." 1. The letter informed Ms Naylor that it had been determined that it was inappropriate for her to continue with her usual duties while the allegations were investigated; that pending the outcome of the investigation she would be placed on alternate duties in the Clinical Governance Unit; that her eMR access would be suspended until further notice; and, that her name would be placed on the NSW Health Service Check Register. 2. In emails dated 31 October 2019 and 8 November 2019 Ms Naylor's solicitor, Ms Sue Bowrey, requested that the ISLHD provide particulars of the allegation that she had been "deliberately deceitful". In an email in response sent on 8 November 2019 Ms Facci stated: "I have reviewed all relevant information and I am satisfied that Ms Naylor has been provided sufficient information in order to be able to provide a considered response to the allegations as per the NSW Health Managing Misconduct Policy." 1. On 11 November 2019 Ms Facci set a further letter to Ms Naylor which included the following: "As a result of additional information provided, further eMR audits recently undertaken have identified that you accessed the following files without any clinical justification for doing so. The files you accessed include; • Patient MRN [number withheld] on 13 December 2017 at 12.34hrs and 14.31hrs, on 14 December 2017 at 12.35hrs, on 18 December 2017 at 15.32hrs and on 5 January 2018 at 13.58hrs. During this time the patient was in St George Hospital following a motor bike accident. • Patient MRN [number withheld] on 8 January 2018 at 14.40hrs, 15.05hrs, 15.24hrs and 16.05hrs and on 9 January at 8.43hrs. The patient was in Coledale Hospital and is a consumer of the Mental Health Service. • Patient MRN [number withheld] on 9 January 2018 at 11.26hrs. During this time the patient was in Shellharbour Hospital. • Patient MRN [number withheld] on 12 February 2018 at 16.39hrs. This patient is a consumer of Mental Health Service. • Patient MRN [number withheld] on 2 May 2018 at 9.51hrs and on 3 July 2018 at 12.06hrs. This patient was a consumer of the Mental Health Service." (Sic) 1. The letter directed Ms Naylor to attend an interview on 14 November 2019. She was informed that her eMR access would remain suspended and that her name would remain on the Service Check Register. 2. On 13 November 2019 Ms Naylor filed with the Commission an Application for Relief in Relation to Unfair Dismissal pursuant to s 84 of the Act. That application, which commenced these proceedings, was brought on the basis of what was said to be a threatened dismissal. 3. In keeping with the letter she received on 11 November 2019, Ms Naylor was interviewed by Kirsty Temple, a Workforce Support Manager, and Ms Facci on 14 November 2019. Ms Naylor was accompanied by Ms Bowrey, who attended as a support person and not as an advocate. 4. At a later, unspecified date an investigation report was completed ("Investigation Report"). The document in evidence is undated and unsigned. There is some confusion in the Investigation Report as to Ms Facci's role in the process. She is described as both the investigator and the decision-maker. Dr Lucia Apolloni, the District Manager, Access and Referral for the ISLHD, is also described as the investigator. Dr Apolloni, who was not called to give evidence, was Ms Naylor's "two up" manager. In her oral testimony Ms Facci stated that both she and Dr Apolloni had a hand in drafting the Investigation Report, but that they were not the only authors of the document. 5. In any event, the Investigation Report found all but one of the allegations made against Ms Naylor (as reproduced at [23] and [26] above) to have been substantiated. The Investigation Report referred to a further audit having been undertaken for the period January 2018 to July 2018 which "identified…breaches where Ms Naylor had accessed medical records of patients outside of her clinical justification". These alleged breaches related to Patient McC and Patient T. The Investigation Report stated: "This evidence further confirms that Ms Naylor has accessed files of patients that are clearly outside the scope of her role. This evidence also further corroborates the fact that Ms Naylor is accessing patient files who present with mental health issues. The above allegations have not been formally put to Ms Naylor as there is no need to undertake a formal investigation as per Section 2.2 of the Managing Misconduct Policy which states: An investigation is only necessary where there is uncertainty about the facts. Where an initial review determines that the facts are clear and uncontested, findings arising out of the initial review should be set out together with the supporting facts in a report which should be provided to the decision-maker." (Italics in original) 1. In a letter dated 4 December 2019 Margot Mains informed Ms Naylor of the "proposed findings" of the investigation and that a recommendation had been made to terminate her employment. Ms Mains stated that she was "inclined to accept the proposed findings and the recommended disciplinary action". Ms Naylor was provided with an opportunity to comment on the proposed findings and the recommendation before Ms Mains made a final decision. 2. On 9 December 2019 Murphy C conducted a conciliation conference in these proceedings. During the conference the ISLHD agreed to provide Ms Naylor with certain documents in order to enable her to respond to Ms Mains' letter of 4 December 2019. Some information was provided to Ms Naylor on 13 December 2019. 3. On 20 December 2019 Ms Naylor responded at length to Ms Mains' letter. Ms Naylor denied having engaged in the misconduct alleged against her. 4. Also on 20 December 2019 Ms Naylor received a letter from Ms Facci informing her that on the basis of an "updated risk assessment" it had been determined that it would not be appropriate for her to return to her usual duties. As the ISLHD was unable to provide "supervised alternate duties that do not require access to patient medical records" Ms Naylor was to be suspended from duty with pay. 5. In a letter to Ms Naylor dated 28 January 2020 Ms Mains confirmed her findings, which accorded with those in the Investigation Report. Ms Mains stated that it had been determined that Ms Naylor's conduct "constitutes misconduct" and that she had decided to terminate Ms Naylor's employment "effective immediately", with a payment in lieu of notice. The letter further informed Ms Naylor that her name would remain on the Service Check Register. Relevant legal principles 1. Under s 84 of the Act, if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission to have the claim to be dealt with. 2. It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. In Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Newall C observed: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465." 1. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench observed: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." 1. To be entitled to any remedy under the Act the onus is on Ms Naylor to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. 3. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the ISLHD to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. Analysis of the allegations 1. The ISLHD terminated Ms Naylor's employment on the basis of allegations surrounding her access to the records of seven patients. The allegations in respect of Patient X were contained in the letter from Ms Facci to Ms Naylor dated 29 October 2019. The allegations in respect of Patient R, Patient P, Patient G and Patient F are contained in the letter from Ms Facci to Ms Naylor dated 11 November 2019. Patient McC and Patient T were the patients in respect of whom allegations were first raised, and found substantiated, in the Investigation Report. 2. At the hearing, the ISLHD informed the Commission that it no longer pressed the allegations concerning Patients McC and T. The ISLHD also no longer pursued further allegations that were first raised in its written Outline of Submissions in these proceedings, relating to a patient identified as Patient KR. 3. Ms Naylor did not dispute that she accessed the records of Patients X, R, P, G and F on the occasions alleged by the ISLHD. It is therefore unnecessary to examine the evidence adduced by the ISLHD that sought to establish those facts. In respect of each patient the question is whether Ms Naylor accessed the records "without any clinical justification". Further in relation to Patient X, was Ms Naylor "deliberately deceitful" in saying that she was unaware that he was deceased before accessing his records? Patient X 1. On Monday, 20 May 2019 Ms Naylor arrived at work at 8:30am. She stated that the list of patients on the Portal is the largest on a Monday as it includes patients who have been discharged over the preceding weekend, and will contain approximately 500 names. Ms Naylor logged onto her computer at 8:56am. Patient X was listed in the Portal on the Community Care list. At 9:09am Ms Naylor accessed his eMR file. At 9:12am Ms Naylor updated the patient's file to indicate that he was not eligible for community care due to being deceased. She then exited Patient X's eMR. 2. In her letter to Ms Facci of 8 October 2019 Ms Naylor claimed that she only became aware of the demise of Patient X when she accessed his eMR. The ISLHD found to the contrary that Ms Naylor had entered Patient X's eMR in the knowledge that he was deceased. The ISLHD alleged that this knowledge came "via the media and during discussions with other staff members in the ARC". It was further contended by the ISLHD that in undertaking the usual triaging process Ms Naylor would have ascertained that Patient X was deceased without having to access his eMR. It followed, it was alleged, that she had no clinical justification for going into the records. There was a suggestion that she may have done so out of curiosity, given that Patient X had died in circumstances that had attracted some local media interest, reminiscent of the allegations concerning Patient AB referred to at [18] above. 3. A further finding against Ms Naylor was that she had been "deliberately deceitful" in her letter to Ms Facci of 8 October 2019 in stating that she was unaware that Patient X was deceased at the time she accessed his records. Conversations with co-workers 1. The evidence on which the ISLHD predominantly relies relates to conversations which Ms Naylor is said to have had with Ms McHugh and Ms Savio on 20 May 2019. 2. The record of Ms McHugh's interview on 29 October 2019 contained the following: "On that occasion now I'm not sure in what order I spoke to who but I know that, and usually I arrive before Cass but I'm pretty sure that Annie was there and I think Leanne might have been arriving around the same time. But I remember saying something. I know that Annie was aware that he'd been in an accident and been killed. And Cass had arrived and Leanne was talking about it and Cass said oh yes he'd been in this accident. Anyway she turned on her computer. … We just didn't know, I can't be sure of what order I communicated with people on that day but I do know that I spoke to Annie and because you were familiar with Daniel and she was aware of the accident. She said 'Oh yeah I heard on the radio.' I'm pretty sure she said the radio, she heard it somewhere and at the same time Cass had arrived. Cass knew about it but I'm not sure if she knew about it from when she walked in from Annie but she knew about it because I said 'Did you hear about [Patient X]?' 'Yeah,' and she was turning on her computer. Leanne, who had been listening to everything, brought up something on a phone and she was reading out the news report on the phone and Cass said to me 'Oh yes he's come up on the list as DOA.' And I said 'Well yeah, well we know that he's passed away blah, blah, blah,' and Leanne was talking about something about a truck or car, hitting the back of a truck or whatever and somebody running away or whatever, so some details about the story. And I turned to Cass and I said 'This is going to be a high profile case. You're already been in trouble before,' and I said 'So be really careful. There is no need for you to go into his notes because it says DOA and you know that he's dead. So there's no need to go…' She said 'I'm just doing my job.' And I said 'Cass don't argue with me. There's no need for you to go into those notes. The person is dead. The only reason you'd need to go into the eMR notes is if you are going to open them up for 48 hours because you're going to make phone contact and you can't call someone that's dead." She turned around to me and she snapped at me and she goes 'Oh you're such a goody two shoes.' And I got the shits with her, I turned back around and went on with what I was doing because I don't usually work on a Monday. I was doing stats for Aboriginal Health. So that was the incident." (Sic) 1. Ms McHugh stated during the interview that this conversation had occurred within 10 minutes of Ms Naylor arriving at work, well before 9.00am. 2. The record of Ms Savio's interview on 29 October 2019 contained the following exchange between her and Cathy Love, a Workforce Support Coordinator with the ISLHD ("CL" in the extract below) and Dr Apolloni ("LA" in the extract below): "LS: So of the morning though I was on Facebook before I came into work. I came into work, I always get into work early. I heard Cass and Annie talking and Cass had asked Annie was she aware that [Patient X], she thought it was [Patient X] that was killed. Annie said yes she heard it on the radio. Now Annie was away. I think from what I remember she may have been up in Bathurst with her daughter and any said no, she was aware that he was deceased and it was him that was in the accident. Then that's as I was coming into the room so I went down to my room, logged on. I was on Facebook and a picture came up on the Illawarra Mercury and by this stage Angela had come into the room and I heard Cass saying to Angela 'Are you aware that our client [Patient X] is the one that was involved in the fatality?' And Angela said 'Yes.' And then I said 'Oh girls I think this is the man you are talking about.' I used to hear them talking about him all the time because he was a frequent flyer within ED. And so we come up on the list quite often and so I said to the girls 'Look this is the man that you're talking about because he's on Facebook now?' And they both had a look and they said 'yeah that's what he looks like, okay.' It fits in what they had in what they had in their mind of what he looked like and then – – – … LA: So this is all around 8:30? LS: 8:30-ish. And then and I think she might have been on Connecting Care or her and Cass were both on Connecting Care or 48 hour follow-up because I can't work out who's on whatever role and Cass said 'Did you hear? Did you hear?' And she said 'yes, yes I know it's him. I heard is name and don't go into his file Cass. Whatever you do don't go into the file.' CL: Angela said to Cass. LS: Yeah. And she said 'Oh but, but,' and she said 'You can clearly see right here DOA. Don't go into it. There is no need for you to go into it and don't access his notes under any circumstances.' And she goes 'Oh but, but we sort of need to, I need to go in there to close something down.' And Angela said 'No you don't. There's no need for you to be in this client's file. It clearly states that he was deceased on Saturday, today is Monday (or whatever day it was). There is no need for you to go into it.' And she goes 'Oh but you're such a baby." Or something like that or 'you're such a fuddy-duddy,' and she goes 'Listen I'm not going to get into it with you. Don't go into it. You've been told. And from past behaviour you should know this client is a high profile case don't access his notes under any circumstances.'" (Sic) 1. The record of Ms Naylor's interview on 14 November 2019 contained the following exchange between her and Ms Temple: "KT: You were warned by staff members within the Access and Referral Centre not to access the patient's eMR, however at 9.09am you accessed the record without any clinical justification for doing so. So can I just ask what your response to that allegation is Cass? CN: I didn't have any discussions with my colleagues until after I'd read his notes. KT: Ok. CN: I didn't know he was deceased when I went into it. I wear headphones as soon as I get to work, when I'm on the 48 hour follow up program, I didn't hear any news, I don't watch the news, didn't have the radio on at home or anything so I didn't know. I went into the notes, I seen that he was deceased, I called Angela over who sits like a meter and a half, two metres, like we're back to back, called her over, she also read the notes with me, and then she said to me 'you can't be in the notes' and I said 'yeah I know cos' he's going to be a coroners case', and that's when I got out. And then I walked down the other end and I spoke with Annie, who is the other person who does the 48 hour follow up program, and I said 'oh, [Patient X]'s died' so, and that's the only discussion that we had." (Sic) 1. The "Annie" referred to by Ms McHugh, Ms Savio and Ms Naylor is Annie Lewis, a registered nurse in the ARC. Ms Lewis was not called to give evidence. 2. Ms McHugh deposed in her statement in these proceedings that her record of interview was "true and correct". To the extent that her statement relates the conversations on 20 May 2019 it most respects to simply reproduce the contents of her record of interview on 29 October 2019. However, her version of events changed in two significant respects: firstly, the words "Did you hear about [Patient X]?" are attributed in Ms McHugh's statement to Ms Naylor, and not Ms McHugh; and, secondly, Ms McHugh said in her statement that she did not believe that Ms Lewis was present during the discussion at the beginning of the shift on 20 May 2019. 3. Ms McHugh did not explain why she had come to make these changes. However, two matters are noted. Firstly, the evidence reveals that Ms Lewis did not attend work until 10.00am on 20 May 2019. Conversations that are said to have occurred involving her, or which are referenced having regard to Ms Lewis' presence in the workplace, must necessarily have taken place after that time. In particular, she could not have been present during a conversation which occurred prior to 9.00am as Ms McHugh had originally stated. 4. Secondly, in her statement Ms McHugh deposed that she had been made aware of at least some "aspects" of Ms Savio's interview on 29 October 2019. [3] Under cross-examination Ms McHugh appeared to concede that her own recollection of events – as reflected in her witness statement – was now affected by being informed of Ms Savio's version of events. 5. Ms Savio's evidence was even more problematic. Like Ms McHugh, her statement made it clear that she had been provided with details of the evidence given by Ms McHugh and Ms Lewis during their interviews on 29 October 2019. [4] In her statement Ms Savio purported to correct her recollection of events, to the effect that the time of the discussion between Ms Naylor and Ms Lewis "may have happened later in the morning" allowing for the fact that Ms Lewis did not attend work until 10.00am that day. 6. However, under cross-examination Ms Savio stated that some of the language in her statement was not her own. More particularly, despite what her statement said she reiterated that her recollection of events was in accordance with the record of interview from 29 October 2019. 7. Ms Savio's evidence must also be viewed in light of the fact that she clearly bears some animosity towards Ms Naylor, despite her having claimed in her statement that she "personally likes" Ms Naylor and "thinks she is a good person at heart". [5] In her interview on 29 October 2019 Ms Savio described Ms Naylor as "vicious and nasty, vindictive, spiteful". She stated that she had been threatened by Ms Naylor and that, amongst other things, Ms Naylor had deliberately damaged the property of other staff members as a form of reprisal. Under cross-examination Ms Savio did nothing to resile from these allegations; rather, she confirmed them. 8. It is relevant in this context that Ms McHugh deposed under cross-examination to a concern she had at the time of the investigation that Ms Savio and Ms Lewis were looking for excuses to get Ms Naylor into trouble. 9. Having regard to these matters, I am compelled to approach the witness statements of Ms McHugh and, more particularly, Ms Savio with some caution. 10. There are matters of detail regarding the events of 20 May 2019 that I have considered, in particular: 1. Ms Naylor deposed that due to ongoing interpersonal conflict in the workplace, particularly with Ms Savio, she did not engage in conversation when she arrived at the workplace on 20 May 2019. She stated that she was wearing earphones. Ms McHugh and Ms Savio disputed this. 2. Ms Naylor logged onto the system at 8.56am. Her access of Patient X's eMR lasted for three minutes, from 9.09am to 9.12am. That would appear to be sufficient time for her to open the file, have the exchange with Ms McHugh which Ms Naylor described and to update Patient X's file to indicate that he was not eligible for community care due to being deceased. It would not seem to leave much time for Ms Naylor to have reviewed the records so as to satisfy some morbid curiosity on her part. 3. That Ms Naylor did update Patient X's eMR provides some basis for her having accessed the record and having said to Ms McHugh, on being challenged, that she was "just doing her job" (as recollected by Ms McHugh) or that she needed "to close something down" (as recollected by Ms Savio). 1. There is some imprecision as to the precise time at which various conversations took place on 20 May 2019. However, Ms McHugh maintained that she had a conversation with Ms Naylor soon after Ms Naylor attended work and before or as Ms Naylor logged onto her computer, during which Patient X's demise had been discussed. That there was such an exchange was corroborated to an extent by Ms Savio. 2. Ms McHugh presented as a careful and considered witness who was doing her best to recollect the events of 20 May 2019. She had been Ms Naylor's support person during the disciplinary proceedings in 2018. To paraphrase her evidence, Ms McHugh had "gone in to bat" for Ms Naylor in 2018 and she was disappointed and angered that Ms Naylor appear to be acting in a similar way in accessing Patient X's records on 20 May 2019. Ms McHugh stated that it was because she was so angry about the situation that she had a fairly clear recollection of what had been said. 3. Very much on balance, I accept Ms McHugh's evidence that she had a conversation with Ms Naylor before or as Ms Naylor logged onto her computer, during which Ms Naylor had confirmed she was aware that Patient X was dead. It must follow that Ms Naylor was aware prior to accessing the Portal on 20 May 2019 that Patient X was deceased. With that knowledge, there appears to be no reason (and certainly none offered by Ms Naylor) why she would have had reason to access Patient X's eMR on that day. 4. It must also follow that in stating in her letter to Ms Facci of 8 October 2019 that she was unaware that Patient X was deceased, Ms Naylor was not being truthful. In practical terms there is likely no difference between that finding and one that she was "deliberately deceitful". However, the use of the term "deliberately deceitful" imbues the allegation against Ms Naylor with a stridency that is reflective of the approach taken by the ISLHD in investigating the allegations against Ms Naylor and in effecting her dismissal. I will return to this. The Triaging Process 1. In light of my findings at [67]-[68] above, it is unnecessary to explore in detail the alternative contention raised by the ISLHD, namely that in undertaking the triaging process Ms Naylor would have been alerted to the fact that Patient X was dead. Suffice it to say, I do not accept the contention. The reasons for this can be stated relatively briefly. 2. Patient X should not have appeared on the Portal on 20 May 2019. He should have been excluded by the algorithm through which the system identifies the patients who might benefit from a referral to community care. His appearance on the Portal would support a presumption that he was alive. 3. When an Intake Officer accesses the Portal, they are presented with a series of columns. While there is a "default" setting as to the display of those columns, Intake Officers can and do reorder the presentation of the columns based on their personal preferences. 4. One of the columns in the Portal is headed "Admission Reason". That column records the reason for which the patient presented at a hospital. It did not appear to be in dispute that as at 20 May 2019 the entry in the "Admission Reason" column against Patient X was "DOA" (dead on arrival). The ISLHD contended that the Admission Reason would have been visible to Ms Naylor when she accessed the Portal. Further and in any event, it was said that checking the Admission Reason forms part of the triaging process. 5. Ms Naylor deposed that she does not use Admission Reason as part of the triaging process. For this reason she has configured her screen so that the Admission Reason column is not visible when she logs into the Portal. To see that column it is necessary for her to scroll to the right. She claimed that she did not check the Admission Reason for Patient X on 20 May 2019. 6. I accept Ms Naylor's evidence, noting in particular the following: 1. The Procedure Manual makes no reference to checking Admission Reason as part of the triaging process. 2. The process which Ms Naylor said that she undertook on 20 May 2019 would appear to be consistent with the Procedure Manual. 3. While Ms McHugh deposed that Admission Reason "is the single most useful screening tool", [6] her oral testimony and that of Ms Facci seemed rather to confirm that Admission Reason may be of little utility in determining whether a patient was eligible for referral to one of the Programs or not. 1. Under cross-examination Ms Facci accepted that if Ms Naylor had not seen the Admission Reason column, there was nothing in the system that would have alerted Ms Naylor to Patient X being deceased before she got to his eMR. 2. For the sake of completeness I observe that the ISLHD led evidence of a "pop-up screen" which appears when access is sought to the records of a deceased patient. There is no evidence that this appeared to Ms Naylor on 20 May 2019. She denied having seen it. Both Ms McHugh and Ms Facci conceded that there was often a delay between a patient being recorded on the system as having died and the pop-up screen appearing. 3. In the context of the triaging process it is relevant that Patient X was "known" to the intake team in the ARC. Due to his history he had previously and repeatedly been ruled ineligible for referral to the Programs. Between 5 April 2019 and 17 May 2019 Ms Naylor had ruled Patient X ineligible for referral on seven occasions without going into his eMR notes. Ms McHugh and Ms Lewis had apparently done likewise on a combined 12 occasions over the same period. 4. Under cross-examination Ms McHugh accepted that the role of the triaging process is to identify patients who would benefit from referral to one of the Programs, not necessarily to find grounds on which they should be excluded. It followed that past ineligibility did not necessarily mean that a patient remained ineligible. This is where an Intake Officer is required to draw on their clinical expertise, on a case-by-case basis. 5. Even allowing for these matters, it is difficult to see what change might have occurred as at 20 May 2019, such that Ms Naylor would consider that Patient X might be eligible for referral to a Program when three days previously she had ruled him ineligible without needing to access his notes. This is particularly the case given that Ms Naylor purportedly took the time to check Patient X's eligibility on what she described as the busiest day of the week. The only thing of note to have occurred between 17 and 20 May 2019 was Patient X dying in quite dramatic and unusual circumstances. 6. Having regard to these matters and my findings at [67]-[68] above, I find that Ms Naylor's conduct in accessing the eMR of Patient X on 20 May 2019 was in breach of the privacy obligations imposed on her, and amounted to misconduct. I also find that Ms Naylor was dishonest in stating in her letter to Ms Facci of 8 October 2019 that she was unaware that Patient X was deceased. Patient R 1. Ms Facci stated that Patient R was not identified as a patient who might have access to the Programs. As she was not on the list to be triaged there was no reason for Ms Naylor to access her eMR at all. Ms Facci further speculated that as Patient R was not a patient of the ISLHD, Ms Naylor must have identified by another source, such as through the news. 2. Ms Naylor stated that her access of Patient R's records occurred at about the time she accessed the records of Patient AB, referred to at [18] above. She said that she was researching head injury treatments and that she had run a report bringing up patients admitted to the emergency department of the St George Hospital due to head trauma. This report identified Patient R. Ms Naylor claimed that this was the same way in which she had identified Patient AB. 3. This is a coincidence in timing between Ms Naylor's access to the records of Patient AB and those of Patient R. There is nothing inherently implausible in her explanation. If the ISLHD was prepared to accept that explanation in respect of Patient AB, I see no reason why the Commission should not accept it in respect of Patient R. 4. In the record of her interview on 29 October 2019 Ms McHugh made reference to a conversation that she had with Ms Naylor about a motorbike accident in which Ms Naylor said words to the effect "Oh but it could be somebody I know". This was offered by the ISLHD as suggesting that Ms Naylor had deliberately accessed the records of Patient R. 5. However, there is nothing on the face of the record of interview to tie any conversation between Ms Naylor and Ms McHugh to Patient R. Ms Naylor accepted that she had once had a conversation with Ms McHugh about someone she knew who had a motorcycle accident on Macquarie Pass, but she denied having a conversation with Ms McHugh about Patient R in the terms alleged. As Ms Naylor said under cross examination, there are "lots of bike accidents". [7] 6. Having regard to all of the circumstances, I am not satisfied that the ISLHD has established that in accessing Patient R's eMR Ms Naylor engaged in misconduct. Patient P 1. Ms Naylor deposed as follows: [8] "66. On 8 January 2018 a Registered Nurse called me from Coledale Hospital and said that the client may need a community nurse to see her at home to help her with her naso gastric tube. The nurse didn't know if she definitely would need a community nurse or not, it would depend on what happened in the Emergency Department. She didn't want the client to get missed because community nurse referrals are often not made in the Emergency Department when they should be. 67. I discussed with her I would monitor the patient's notes to see if a community nurse would be required. We have not been instructed to make notes in the electronic medical record in these situations. I would have written her medical record number on a post it and stuck it on my screen, checked the next day and have decided that no further action was needed." 1. Ms Facci deposed as follows: [9] "75.2 Second, the patient was not referred to the ARC. Therefore, there was no clinical reason at all for the Applicant to access his or her records. Either the patient is referred through to Connecting Care or the 48 hour referral service or she isn't (referred). If the patient has not come through the system, then there is no clinical reason connected with the Applicant's role for her to review the patient's records." 1. Under cross-examination Ms Facci stated that she had no evidence with which to contradict Ms Naylor's statement that she had received a call from a registered nurse at Coledale Hospital. She stated that no inquiries were made of Coledale Hospital. 2. At par 27 of her statement, reproduced at [12] above, Ms McHugh deposed that an Intake Officer might access a patient's medical records on referral from, amongst others, nursing staff. During Ms McHugh's cross-examination there was the following exchange: [10] "Q. Why don't I ask that in a less confusing way. If say a nurse based at another hospital called you about a community referral for one of their patients, you might look at that patient's record? A. If they were going to make a referral to that service, yes, but not if they just asked me to. Q. No but if they were asking you in the context of making a referral, that's perfectly-- A. Yes. Yes." 1. The ISLHD invited me to draw an adverse inference from the fact that the explanation offered by Ms Naylor in respect of Patient P differed from that which she had provided during her interview on 14 November 2019. At that time Ms Naylor suggested that Patient P may have been a multi-trauma patient, which is why she would have been looking at her notes. I draw no adverse inferences from this. It is clear from the record of interview that Ms Naylor was speculating. At that stage the only information provided to her was the MRN of the patient, and on that basis she was being asked to recollect what she had done some 20 months previously. 2. Once again, having regard to all of the evidence I am not satisfied that the ISLHD has established that in accessing Patient P's eMR Ms Naylor engaged in misconduct. Patient G 1. Patient G presented to Wollongong Hospital on 8 February 2018 with the admission reason stated as "vomiting". She was discharged the next day. The patient's medical records show that she had presented to Shoalhaven Hospital in April 2017 with a "nervous disorder" and in March 2017 had presented to Wollongong Hospital with a "mental health problem". At that time the ISLHD did not use the Portal. Patient information was downloaded onto an Excel spreadsheet, which Intake Officers used to identify patients who may need to be considered for referral to community care. 2. Ms Facci stated as follows: [11] "76.2 Nevertheless, on the face of the admission reason, [Patient G] was not eligible for the Connecting Care program or the 48 hour program (because she is not Aboriginal or Torres Strait Islander) because the admission reason also indicated that the patient was a mental health patient thereby making the patient in eligible for Connecting care or the 48 hour program. 76.3 Further, [Patient G] was 19 at the time of the access and therefore unlikely to have [a] chronic condition to warrant a Connecting Care referral." 1. I assume that in referring to the "face of the admission reason" Ms Facci was referring to the history of admissions on the spreadsheet, as I do not see how an admission reason of "vomiting" would necessarily indicate that a patient was a mental health patient. Even if regard is had to the patient's history, the most recent admission for what appears to be a mental health condition was in April 2017. Ms Naylor stated that previous admissions for mental health reasons do not act as an automatic exclusion from either of the Programs. They may be eligible if their condition is "stable", and so she needed to check Patient G's notes to determine whether she was classed with stable or unstable mental health. Ms Naylor further stated that she had referred other people of Patient G's age to Connecting Care. 2. Ms McHugh gave evidence to a similar effect. Under cross-examination she deposed as follows: [12] "Q. Even if someone has a chronic condition, there are some exclusions from the - some factors that exclude them from the programme, would you agree? A. Yes, there are. Q. Persons under 16 are not eligible? A. Correct. Q. That rather implies, Ms McHugh, that persons over 16 are at least potentially eligible, you'd agree? A. I'd agree, yes. Q. Persons with unstable mention health conditions are not eligible? A. Acute presentations of mental illness. Q. So not just anyone who has a mental health condition of some kind. It's people who are - who that's currently presenting for, is that right? A. That's correct. Q. And it wouldn't be correct to say that someone who had previously been admitted for a mental health issue was automatically into the future excluded from the Connecting Care programme? A. No, we don't discriminate against mentally health people - mentally ill people. Q. Even if you saw that someone had a history of mental illness presentation, you'd still need to evaluate whether they were stable or not? A. Yes." 1. Ms Naylor contended that she would have reviewed the notes for Patient G to confirm her eligibility for Connecting Care. The ISLHD has not demonstrated anything to suggest that this explanation should not be accepted. I am not satisfied that the ISLHD has established that in accessing Patient G's eMR Ms Naylor engaged in misconduct. Patient F 1. Once again, information relating to Patient F was contained in an Excel spreadsheet, and not on the Portal. The spreadsheet stated that the patient presented to Wollongong Hospital presenting with "bipolar affective disorder" on 26 February 2018. She was discharged on 1 May 2018. A further spreadsheet shows that the patient presented to Wollongong Hospital on 30 June 2018 presenting with "mental health problem, rambling". She was discharged on 2 July 2018. 2. The two times that Ms Naylor accessed the patient's file was the day after the patient had been discharged from hospital. This is consistent with her undertaking the normal triaging process for discharged patients. 3. Ms Facci stated: [13] "77.1 This patient was ineligible for Connecting Care or the 48 hour program as she was a mental health patient and she is not…Aboriginal or Torres Strait Islander. The 'admission reason' would have been clearly visible to the Applicant. 77.2 Even if the Applicant searched the patient in eMR (which I say was not necessary) she would have identified the reason for admission and numerous previous admissions at the time of the name search and before having to access the actual electronic medical record. Once the nature of those admissions were reviewed, it would have been clear to the Applicant that there was simply no reason to enter the patient's electronic record once the admission reason had been identified." 1. Ms Naylor stated: [14] "15 d. In respect of [Patient F], before I reviewed her notes it was unclear whether her mental health was stable or unstable. Not all mental health patients are excluded. The Connecting Care manual differentiates between stable and unstable mental health clients. I needed to access the file to determine her eligibility." 1. This evidence needs to be viewed in light of that referred to above, to the effect that a patient's prior mental health history would not automatically exclude them from referral to one of the Programs. Further, there is no evidence to suggest that Ms Naylor accessed the records for some illegitimate or inappropriate reason. The situation is less clear than with Patient G, however in respect of Patient F I am inclined to accept the submissions made on behalf of Ms Naylor that the conduct is more to be viewed as poor or inefficient triaging than misconduct. The ISLHD has not discharged its onus to prove otherwise. Patient McC and Patient T 1. Whatever may have been the ISLHD's position at the hearing, the fact remains that the allegations concerning Patient McC and Patient T had been found by the ISLHD to have been substantiated and were relied on by Ms Mains in making her decision to dismiss Ms Naylor. In light of the position taken by the ISLHD at hearing I must necessarily find that those allegations did not provide a reason for Ms Naylor's dismissal. Procedural fairness 1. There are a number of elements of the process that culminated in Ms Naylor's dismissal that call into question the extent to which she has been afforded procedural fairness. 2. At [25] above I referred to an exchange of emails between Ms Bowrey and Ms Facci, in which the ISLHD was asked to provide further evidence of the allegation that Ms Naylor had been "deliberately deceitful" in her letter to Ms Facci of 8 October 2019. In her correspondence Ms Facci expressed the view that Ms Naylor had been provided with "sufficient information" to enable her to provide a "considered response". However, under cross-examination Ms Facci conceded that the only information Ms Naylor had at that time concerning the allegation was that contained in the first dot point of her letter of 29 October 2019, reproduced at [23] above. I am not persuaded that that information was sufficient to enable Ms Naylor to prepare a "considered response". 3. Similarly, based only on the information contained in the letter of 11 November 2019 referred to at [26] above, Ms Naylor was expected to recollect and be able to explain events concerning Patients R, P, G and F which had occurred between 18 and 23 months previously. Under cross-examination Ms Facci was only prepared to concede, and then begrudgingly, that it would be "difficult" for a person to sensibly respond on the basis of the information that had been provided. [15] 4. Ms Facci's role in the process also gives rise to concerns. She appears to have been both an investigator and the decision-maker, which she conceded was not in keeping with the "normal process". [16] This is borne out by the record of Ms Naylor's interview on 14 November 2019, at which Ms Facci was present. Ms Naylor stated: [17] "78. I found Kirsty and Franca quite confrontational during the interview. Franca in particular did not seem to want to listen to me, and just argued with me. They would not tell us what the witnesses had said I had done, and stopped my representative from asking questions on my behalf." 1. On the basis of the record of interview I consider that it was reasonable for Ms Naylor to have formed these views. 2. Issues also arise from of the records of the interviews conducted of Ms McHugh and Ms Savio on 29 October 2019. The record of Ms McHugh's interview records Ms Love stating: "So I guess you were talking earlier before we turned the recorder on about other incidents." The interview ends with Ms Love stating: "I'll just turn it [the recorder] off and we'll chat." 1. Ms Savio's interview similarly ends with Ms Love stating: "I'll turn the tape off now and we can keep talking." 1. Admittedly, these entries were not raised by Ms Naylor during the hearing. At the very least, however, they may suggest that the investigation was seeking to obtain information "off the record". While I do not place any great weight on these matters, an employer would be well advised to avoid creating even the appearance of a lack of transparency in misconduct investigations. 2. Ms Savio's record of interview is also noteworthy for the apparent willingness of the investigators to allow her free rein to make a series of gratuitous and quite serious allegations against Ms Naylor, none of which appear to have any bearing on the allegations which were the subject of the investigation. Why she was permitted to do so, and more, why the interviewers pursued those lines of enquiry during the interview in the context of the matters under investigation, is difficult to fathom. 3. Having raised concerns as to the records of interview, there is some question as to the extent to which Ms Facci had regard to them. Her evidence suggested that she had relied on a two paragraph summary of the records of interview (which totalled 27 pages) provided to her by Dr Apolloni in forming her view that Ms Naylor had engaged in the misconduct alleged against her. This in itself calls into question the extent to which Ms Naylor was provided with "a fair go". [18] 4. Further, as noted at [31] the Investigation Report stated that the allegations regarding Patient McC and Patient T were substantiated without having been "formally put to Ms Naylor". The ISLHD's apparent reliance on the Managing Misconduct Policy appears misguided, as it is difficult to see how either Ms Facci or Dr Apolloni could have been satisfied that "there was no uncertainty about the facts" and that the facts were "clear and uncontested". 5. Finally, it was only after Ms Naylor commenced these proceedings and conciliation had been conducted that the ISLHD provided her with some information to substantiate the allegations that had been made against her. Even then she claimed that not all of the information that had been promised by the ISLHD was in fact provided. That claim was not contradicted at the hearing. 6. A related concern is the way in which the allegations against Ms Naylor continued to mount up over time. Part of the action taken against Ms Naylor in 2018 as a result of her previous breach of privacy was that she be placed on a performance improvement plan ("PIP"). The record of the PIP suggests that it commenced on 1 August 2018 and was concluded on 6 June 2019. As part of the PIP process, Dr Apolloni conducted an audit of Ms Naylor's access to patient files which was completed on 20 February 2019. 7. There is no evidence that Dr Apolloni's audit disclosed any concerns as to Ms Naylor's access of patient records. Yet with the exception of those relating to Patient X, all of the allegations against Ms Naylor – including those not pressed at the hearing – relate to her having improperly accessed patient records prior to the date on which Dr Apolloni completed her audit. 8. The inescapable conclusion is that when the allegations concerning Patient X were first raised, the ISLHD conducted a further audit (however described). This identified the alleged breaches in respect of Patients R, P, G and F, about which Ms Naylor was notified in the letter of 11 November 2019. That the ISLHD continued to check Ms Naylor's access to patient records after that date is evidenced by the ISLHD raising (and finding sustained) in the Investigation Report the additional allegations concerning Patients McC and T. The process of checking Ms Naylor's access to patient records continued until shortly before the ISLHD filed its written submissions on 1 April 2020, when it purported to raise a further allegation that Ms Naylor had improperly accessed the eMR of Patient KR. 9. The uncontroverted evidence of Ms Naylor is that Intake Officers may need to triage as many as 500 patients in a day. The Respondent's Documents included extracts from reports of Ms Naylor's access to patients' eMRs for each of the periods 1 July 2018 to 31 December 2018 and 1 January 2019 to 30 June 2019. While only extracts were tendered, the documents suggest that the complete reports were 134 pages and 107 pages respectively. There were typically 28 entries on each page. 10. From this information the ISLHD has identified a total of 25 occasions on which Ms Naylor is alleged to have improperly accessed the records of eight patients, including those in respect of which the allegations are no longer pressed. This not only places Ms Naylor's conduct in context, but gives some insight into the work that would have been required by the ISLHD, up to the cusp of the hearing, to uncover evidence of alleged wrongdoing. 11. Overall, I consider that in the process culminating in her dismissal Ms Naylor was denied procedural fairness. She was not provided with adequate or timely access to the information that could have enabled her to respond to the allegations made against her. She was required to speculate on the basis of very limited information as to why she may have accessed a patient's record more than 18 months previously. When, having received some information which allowed her to provide a more fulsome and accurate explanation, her credibility was called into question. The overwhelming impression created by the evidence is that the ISLHD assumed Ms Naylor's guilt from the outset and worked towards achieving her removal. Was the dismissal harsh, unreasonable or unjust? 1. Section 88 of the Act sets out matters to which the Commission may have regard in the course of determining an application made pursuant to s 84. I have considered those matters. As stated by Newall C in Krix, none of them change the effect of the essential consideration, that is, whether the dismissal was harsh, unreasonable or unjust. [19] Unjust 1. I have found that on 20 May 2019 Ms Naylor accessed the eMR of Patient X without clinical justification. I am further satisfied that she did so in the prior knowledge that Patient X was deceased. Her statement to Ms Facci to the contrary, contained in Ms Naylor's letter of 8 October 2019, was untruthful. Her conduct in these respects, as the ISLHD contended, constituted misconduct. 2. Ms Naylor was aware of the significant obligations of privacy imposed on her. She knew that she was not permitted to access a patient's records other than the for the purpose of performing her duties as an Intake Officer. Further, Ms Naylor had twice previously received warnings for breached of these obligations. 3. In light of her disciplinary history, Ms Naylor's conduct warranted the termination of her employment. The dismissal was not unjust. Harsh 1. The approach to the assessment of whether or not a dismissal is harsh is set out in the following passages in Department of Health v Perihan Kaplan [2010] NSWIRComm 65: "29. We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of 'harshness' it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 'In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.'" 1. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA made the following observations: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted) 1. In the present case Ms Naylor's misconduct needs to be considered against the following factors: 1. Ms Naylor is 49 years of age; 2. Ms Naylor has a history of work-related health problems, including a bad back and psychological injuries, from which she continues to suffer; 3. Ms Naylor had 29 years of service. However, to adopt the language of the Full Bench in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 this is a "mixed factor": Ms Naylor's length of service suggests that she should have been aware of what was expected of her; 4. Ms Naylor resides in a regional location; and 5. her name has been placed on the Service Check Register, which might act as some impediment to her obtaining alternative employment in the NSW Health Service. 1. These factors must be "weighed in the balance" against Ms Naylor's conduct, which is objectively serious in nature. The consequences of the dismissal for Ms Naylor are significant. This makes me hesitant to find that the dismissal was not harsh. But in light of all of the evidence I cannot see that the dismissal was "disproportionate to the gravity of the misconduct in respect of which the employer acted": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 (McHugh and Gummow JJ). Ms Naylor has not established that her dismissal by the ISLHD was harsh. Unreasonable 1. I have explored at length the concerns I have with the way in which the ISLHD identified and investigated the allegations against Ms Naylor, and ultimately effected the termination of her employment. The ISLHD denied Ms Naylor procedural fairness in a process which seems to have assumed her guilt and was directed at achieving her removal. On this basis, I find that the dismissal was unreasonable. Remedy 1. Having made this finding, it is necessary to consider whether the Commission should provide Ms Naylor with a remedy. The remedies available following a finding that a dismissal was harsh, unjust or unreasonable are contained in s 89 of the Act, which is relevantly in these terms: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. … (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. … 1. Ms Naylor seeks reinstatement. It is well established that under the Act reinstatement is the primary remedy if a finding is made that a dismissal is harsh, unreasonable or unjust: Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [24]; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]-[63]. The Commission can only consider an alternative remedy if reinstatement is impracticable: Dumas; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. 2. In Perkins the Court observed: [20] "Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party." 1. In Dumas the Full Bench observed: "34. What is clear from the authorities is that there is a range of circumstances that may make reinstatement impracticable. It one context, it may be impracticable because it is impossible, for example where the position in question no longer exists. In another context, it may be impracticable to reinstate an employee because the break down in the employment relationship is such that it simply is 'not practicable' to expect that the relationship issues that led to the dismissal of the employee can be overcome and the employment relationship effectively re-established. The later example was clearly envisaged in the second reading speech introducing the remedy scheme for unfair dismissals. This example also makes clear that whether it is practicable to reinstate an employee means something more than 'possible'. 35. As stated by Wilcox CJ in Nicholson at pages 60-61: 'It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, notwithstanding that the job remains available.'" 1. The ISLHD submitted as follows: [21] "74. In this case, reinstatement or reemployment is not appropriate or practical, including because of: 74.1 the impact reinstatement will have on her colleagues in the Access and Referral Centre and ISLHD, who had spoken up against her dishonesty in accessing records without basis; 74.2 the impracticability of reinstatement in the Access and Referral Centre or re-employment within the Governance Unit given the need for the Applicant to access patients' private medical records; 74.3 the seriousness of the conduct and the significant impact it has on trust and confidence with the LHD, management and other staff; and 74.4 the demonstrated unlikelihood of the Applicant being able to change and improve her behaviour in the future (and conversely, the real risk of future breaches and incidents occurring). 75. Reinstatement or re-employment is impracticable. 76. The Applicant was provided with five weeks' notice of termination. That amount of notice is more than adequate compensation in the circumstances." 1. At the risk of engaging in unnecessary pedantry, the question for the Commission is whether reinstatement would be impracticable. To the extent that the ISLHD's submissions are to be read as requiring alternative or additional findings that reinstatement would not be "appropriate or practical", I do not accept them. 2. Having regard to all of the circumstances of the case, and not without some hesitation, I consider that this is one of those "relatively uncommon situations" to which the Court referred in Perkins. Ms Naylor occupied a position allowing her access to confidential and highly sensitive information about patients, including those outside of the ISLHD. The importance of maintaining patient privacy and confidentiality is stressed through the policies applying within the ISLHD, communications to staff and through training. Trust and discretion are essential requirements of the position Ms Naylor held. 3. Ms Naylor stated that she was aware of the need to maintain patient privacy and confidentiality. She knew that she was only permitted to access patient records for the purposes of performing her role as an Intake Officer. Indeed, she had twice been warned about her failure to do so, and at the same time reminded of her obligations. Having committed a further breach, the ISLHD has reason to doubt her discretion. It could have no confidence that further breaches might not occur in the future. 4. This is compounded by the fact that Ms Naylor has been found to have been dishonest to her employer at the outset of the investigation process. 5. Having regard to all of the circumstances of the case I have come to the view that reinstatement would be impracticable in this case. I accept the submissions of the ISLHD reproduced at [135] above, with the exception of par 74.1 to which I attach little weight. 6. Ms Naylor did not put a case for re-employment. The ISLHD opposed an order for re-employment being made in any event. There was no evidence before me as to positions into which Ms Naylor may be re-employed. Regardless, for the reasons already stated I do not consider that re-employment would be practicable. 7. I do not accept the ISLHD's submissions that "it is appropriate to order no remedy". [22] My findings as to the basis on which the dismissal was unreasonable call for a remedy. I have determined that an order for compensation in favour of Ms Naylor is warranted 8. The Commission's task in assessing compensation was summarised in Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084: "[27] Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v Rural Lands Protection Board (1997) 74 IR 142 at p.150. [28] Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v Flood (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion." 1. The ISLHD provided Ms Naylor with a payment of 5 weeks wages in lieu of notice. Ms Naylor has not worked since her dismissal by the ISLHD, although there was no evidence that she has attempted to find alternative employment. 2. Taking into account all of these factors, including those referred to at [128] above, I have decided that an order for compensation in favour of Ms Naylor in an amount equivalent to 8 weeks' pay, at the rate which she was being paid at the time of her dismissal, would be fair and just in all of the circumstances of this case. Orders 1. The ISLHD is ordered to pay to Ms Naylor a sum equivalent to 8 weeks' pay calculated at the rate of pay applicable to the position occupied by her immediately before the termination of her employment on 28 January 2020, such payment to be made within 21 days of the date of this order. Damian Sloan Commissioner ********** Endnotes 1. The Health Secretary appears on behalf of the ISLHD. By s 116(3) of the Health Services Act 1997 (NSW) the Health Secretary may, subject to that and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service. For convenience I will refer to the employer as "the ISLHD". 2. Exhibit R2 3. Exhibit R2 at par 53 4. Exhibit R3 at par 16 5. Exhibit R3 at par 31 6. Exhibit R2 at par 68 7. Tcpt, 27 May 2020, p 40(27) 8. Exhibit A1 9. Exhibit R4 10. Tcpt, 27 May 2020, p 60(29-37) 11. Exhibit R4 12. Tcpt, 27 May 2020, pp 65(28)-66(3) 13. Exhibit R4 14. Exhibit A2 15. Tcpt, 28 May 2020, p 48(4) 16. Tcpt, 28 May 2020, p 50(32-33) 17. Exhibit A1 18. See In re Loty and Holloway v Australian Workers' Union [1971] AR 95 at 99 19. [2014] NSWIRComm 1000 at [114] 20. (1997) 72 IR 186 at 191 21. ISLHD written Outline of Submissions 22. ISLHD Outline of Submissions at par 77 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2020