Kushwaha v Queanbeyan City Council [2002] NSWCC 25

Reported Decision : (2002) 23 NSWCCR 339

Compensation Court of New South Wales

CITATION : Kushwaha v Queanbeyan City Council [2002] NSWCC 25 Sarala K Kushwaha PARTIES : v Queanbeyan City Council MATTER NUMBER(S) : 17490 of 1997 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 09/02/99, 24/05/99, 25/05/99, 27/05/99, 06/03/00, 07/03/00 DATE OF JUDGMENT: 03/25/2002

FOR APPLICANT: Mr Frame instructed by White Barnes appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Mansfield instructed by Hunt & Hunt appeared for the respondent.

JUDGMENT: The Claim 1. Ms Sarala Kushwaha ("the applicant") of Gilmore in the Australian Capital Territory claims weekly payments of compensation from 16 October 1996 to date and continuing for either total or partial incapacity. According to the application for determination the cause of that incapacity was ongoing conflict with her supervisor in 1996. However, as the case has been presented and argued, conflict is alleged between the applicant and her supervisor, Ms Roslyn Watson, and others both in 1995 and until she last worked on 16 October 1996. As the applicant completed her shift on that day, the claim for weekly payments ought to commence on 17 October 1996. Abbreviations 2. In the judgment, the following abbreviations are used: T1: transcript of oral evidence given on 9 February 1999 T2: transcript of oral evidence given on 24 May 1999 T3: transcript of oral evidence given on 25 May 1999 T4: transcript of oral evidence given on 27 May 1999 T5: transcript of oral evidence given on 6 March 2000 T6: transcript of oral evidence given on 7 March 2000. Curial History 3. This matter has an unfortunate curial history. It was initially listed for hearing before me at Queanbeyan on 2 November 1998 when, owing to a very busy list, I was only able to technically commence the matter by accepting the tender of a medical report. I offered to continue the hearing on the following day, but that was not suitable to the applicant as she had a job interview on that day (T1 p39.6). The estimate of time given by the parties was one day, so I allocated a day at Parramatta on 9 February 1999. The applicant's evidence in chief took most of that day. The estimate was wildly inaccurate. I then allocated three days in May 1999 at Parramatta but at the end of those three days only part of the evidence in the respondent's case had been given. I then allocated two further hearing days, 26 and 27 August 1999 (T4 p41), making orders that all further evidence in chief in the respondent's case be given by Affidavit, in an attempt to expedite the matter. 4. Unfortunately the hearing dates in August 1999 had to be vacated because of my need to take extended leave in the last half of that year, because of bereavement. The evidence was concluded on 7 March 2000, when I made orders that the respondent file and serve written submissions by 4 April 2000 and the applicant file and serve written submissions by 2 May 2000 (T6 p26). At the request of the parties those dates were subsequently extended to 5 May 2000 and 2 June 2000. Nevertheless the respondent's submissions, dated 25 June 2000, were not received until 3 July 2000 and the applicant's submissions, dated 21 December 2000, were not received until 4 January 2001, when I was on leave. The next long vacation was the first opportunity available for me to write this judgment. For this last delay, I must apologise. The Issues 5. The respondent has not admitted that the applicant sustained any injury. Mr Mansfield has very properly conceded that there is evidence available to support the proposition that the applicant has sustained a psychological injury. Should I so find, he has conceded that there is no real issue that the applicant's employment was a substantial cause of that injury. The respondent has submitted that any incapacity would be of a very limited duration. 6. Mr Frame, for the applicant, has conceded that his client admitted in chief that she felt fit to return to the workforce, doing part time work (which is the type of work she did prior to 17 October 1996) in October 1997 and has asked me to enter an award in the applicant's favour for total incapacity "for about a year and thereafter partial incapacity for a period of time at least up until February of 1998 and possibly beyond". That is hardly the robust claim generally made in this Court! Mr Mansfield has sought at some length to point out that the facts in this case call for a consideration of section 11A (in its original form) and Mr Frame has conceded that his case is that, although events prior to 1 January 1996 were influential, the incapacity arose by reason of an accumulation of matters many of which occurred after 1 January 1996 and therefore that s.11A must be considered. The Applicant's Background 7. The applicant was born on 27 July 1946 and is currently 55 years old. In 1996, she would have celebrated her 50th birthday. She was born in India and her native language is Hindi. She has a Masters degree in Psychology from a University in India. There she commenced an Economics degree course. She left her native land with her husband and lived in Germany for two years and then in England for two years before coming to Australia on 31 July 1977. 8. In 1980, the applicant separated from her husband, leaving her as the sole parent (T1 p19) of two boys the younger of whom was then only 18 months old. Those facts would have kept her out of the work force for some time. She attended the University of Canberra and was awarded the degree of Bachelor of Applied Science in Health Education in 1991 (T1 p1), although the course may have concluded in 1990 (Exhibit 18). 9. The applicant then joined the workforce. Between 1991 and commencing work with the respondent on 12 July 1993, the applicant was engaged by Canberra Rape Crisis Centre, Gunyah Women's Housing, Canberra Vocational Training Centre and Toora Single Women's Shelter. The evidence does not disclose why the applicant had four employers during the relatively short time of two and a half years. 10. After commencing with the respondent, the applicant has pursued further studies. She enrolled in the degree of Master of Education in Counselling but found that during 1995 and 1996 she was unable to cope with the research component and withdrew from this degree course. She then took up study for a Graduate Diploma in Community Counselling. I do not know whether she has completed this course. Her studies indicate to me that she is intelligent, well educated and not one given to poor memory. The Applicant's Work for the Respondent 11. The respondent provides a number of social services to the members of the community. One group of those services has been described as either "Home and Community Programmes" (HACP) or "Home and Community Care" (HACC). I shall use the latter acronym. On 12 July 1993 the applicant took up the role of Ethnic Carer Support Worker in HACC. That job was for 25 hours per week. Very shortly after her commencement, the applicant took on the additional job of Disability Respite Support Worker, a further 15 hours per week. She held those two jobs until August 1994 (T2 p6) when she returned solely to the role of Ethnic Carer Support Worker. It seems probable to me that at that time the hours for that job were reduced to 20 hours per week. Those hours were clearly established by December 1994 when the retiring manager of HACC, Ms Jo Manion, wrote a reference for the applicant (Exhibit C). 12. The established pattern of the applicant's job was, at least after the restructuring of early 1995, this: (a) Monday: 7 hours. "Monday Drop In" . This was a programme for frail aged people, some disabled and some merely lonely. It was to provide them with recreation, social interaction and education. About once per month there was an outing, often to a social club. Other times, the group met at the HACC premises in Queanbeyan. Lunch was always provided. Unless there was an outing, the applicant had to purchase and prepare, or cause to be prepared, the meal. In summer, sandwiches were served, in winter soup and a bread roll. Initially the group was divided, the first half coming at 10am and leaving immediately after lunch, the second half arriving immediately prior to lunch and leaving at 3.30pm. At some time it appears that arrangements were made to bring the whole group together between 10am and 3pm (T5 p14). (b) Tuesday: 7 hours. "Tuesday Club" . This was a programme for younger people with disabilities, predominantly mild intellectual disabilities (T6 p7). (c) Wednesday: 6 hours. On this day the applicant did administrative work (T5 p10) or held groups which met only monthly (T5 p11). When the applicant's administrative burdens were eased, I infer that she did home visits on this day, as well as other days. An example of the programme for the Monday Drop In, that for August 1996, is Exhibit 4 and an example for the programme for the Tuesday Club, again that for August 1996, is Exhibit 5. 13. Both the Monday and Tuesday programmes required the applicant to arrange transport for members of each group and I shall comment on this separately. 14. A "home visit" required the applicant to attend upon a client of HACC and his or her carer (if there were one) and make an assessment of the client's need and how HACC might be able to assist. HACC personnel could arrange for the intervention of other services (such as District Nurse or Meals on Wheels), arrange for medical assistance, if required, as well as suggesting or offering the various services of HACC which, inter alia, included home modification. After the initial assessment, there were other assessments from time to time, to keep up to date with the needs of the client. An example of the paperwork involved in home visits to one client is Exhibit 21. That shows an initial assessment of a client by the applicant on 20 June 1995, a reassessment by the applicant on 13 May 1996 and reassessment by Jennifer Cullen on 17 January 1997 and by Roslyn Watson on 23 May 1997. Some Early Difficulties 15. Within four months of the commencement of her duties, the applicant received from the manager of HACC, Jo Manion, a memorandum dated 29 October 1993 (Exhibit B) drawing the applicant's attention to unsatisfactory aspects of the applicant's work performance. They can be summarised thus: (a) some directions given by Ms Manion were not being followed; (b) the applicant tended to respond first rather than listen fully to the information being given both by colleagues and clients. Ms Manion expressed the view that this might be the reason for some of the "misunderstandings" which had occurred; (c) whilst working as an administrative assistant in Respite Care, failing to consult with the lady in charge of the programme; (d) not following instructions to assist both with general supervision, general cleaning and maintenance in a holiday programme; (e) dealing inappropriately with children with disabilities, in relation to their personal care. 16. As I understand the applicant's evidence, her only real complaint about these criticisms was about the last, which she related to a single incident (T1 p4.7). She discussed these criticisms with Ms Manion and felt that she was dealt with in a sensitive and professional manner. This made her feel a little apprehensive, so early in her service with the respondent, but she thought that thereafter everything went smoothly, and she had an harmonious relationship with Ms Manion. Ms Manion left HACC at the end of 1994 and left for the applicant a reference (Exhibit C) which is complimentary, indicating that Ms Manion was satisfied with the applicant's work performance. The reference contains the following statement: "Sarala is an energetic and enthusiastic worker. She works well with other staff and has no difficulty working cooperatively as a member of a well organised team". The applicant told me that, prior to Ms Manion's leaving, one of her coworkers was Ms Jennifer Cullen, with whom she had some difficulties, but they were smoothed out by Ms Manion. Ms Roslyn Watson was at this time working with the applicant who perceived no difficulties in her relationship with Ms Watson, which was considered to be cordial. 17. The applicant did not suggest that the criticisms contained in Exhibit B or any work prior to the end of 1994 caused her any psychological distress. Nevertheless, it is clear that on 7 June 1994, the applicant consulted a medical practitioner complaining of "a lot of stress" and of having poor sleep patterns. No cause of the stress was given to the doctor (Exhibit T, Exhibit 1). The applicant initially denied that attendance then said she could not remember it (T2 p7). Bearing in mind that there is no evidence of any criticism of the applicant's work performance in 1994, no mention to the doctor of any work stress and the manner in which this case has been presented and argued, I am unable to conclude that this attendance upon the doctor was for any work related purpose. Restructuring 18. On 2 December 1994 (see Exhibit 1, entry 31 October 1994) the applicant left for an extended holiday in India. She returned to Australia on 3 March 1995. On her return she found that HACC was being restructured. Under the manager (Ms Manion was replaced by Diana Baker as acting manager) were three groups, each under a supervisor. There was an Aged Care Group under Ms Watson, a Respite Group under Ms Christine Kennedy and a Transport Group. The Respite Group also included a gentleman who looked after home modification. The applicant was assigned to the Aged Care Group, working still 20 hours per week. The other member of that group was Ms Cullen who worked full time. The applicant says, essentially, that it was from this time and working in this structure that problems arose. 19. I have already mentioned that the applicant had difficulties dealing with Ms Jennifer Cullen prior to this time. The applicant said that Ms Cullen never took responsibility about miscommunication, always blaming the applicant for that. She also believed the workload was not properly divided between then, the applicant's taking the greater share. Although the applicant's relationship with Ms Watson had been good before this time, the applicant noticed a change. Previously they had been co-workers working on the same level. The applicant said that Ms Watson's supervising skills were "very unprofessional", that she was "insensitive", that she had "belittled" the applicant and that she was "very authoritative". At any team meeting (that is of Mesdames Watson, Cullen and Kushwaha), Ms Watson and Ms Cullen were a "united pair". The applicant said that she was misinterpreted or not listened to, that she was unable to win any argument. She felt like an outsider ("the black sheep of our team"). The applicant's evidence suggests that the other two ladies had some personal animus toward the applicant, or prejudice. 20. Ms Cullen did not give evidence and her absence from the witness box has not been adequately explained. Ms Watson acknowledged that there was a problem in the relationship between the applicant and Ms Cullen. When asked to explain how the problem arose she said this (T4 p27): "Both workers needed to work together running the programmes and I guess it was just a different way of approach, a different work style, Jennifer was a young woman at that time, she was 25 years of age, and she had come to us with a great deal of experience in running programmes and had worked in aged care facilities as a diversional therapist for quite a number of years so she was skilled and very competent and I guess she liked to run programmes in a certain way and I guess Sarala liked to run programmes in a certain way as well". 21. Ms Watson conceded that each of Ms Cullen and the applicant had mentioned to her the difficulties each had with the other. She was concerned as to whether these were merely a "personality problem" or whether they might have an impact on the clients of HACC. She saw her role as only to intervene in the latter case. She also said (ibid): "I felt these two grown women could really sort out the silly personality issues themselves and I did, from time to time, give a little bit of direction in that regard that, perhaps, you know, you could say this or perhaps you could do this". According to Ms Watson, the difficulty was no more sinister than a mere personality clash. 22. Whether the applicant's allegations be correct or not can only be determined after a detailed analysis of a large number of events and issues and determination of questions of credit. Suffice it to say, that Ms Watson denies the allegations made against her by the applicant and says, in broad terms, that she was merely doing her job as the applicant's supervisor and had no animus against the applicant. The Annette Gallagher Incident 23. This incident occurred in either July or August, 1995. Ms Gallagher was a client of both HACC and Carinyah, another service provider. She had a degenerative muscular problem. Ms Watson was concerned that the client was withdrawing from group activities, that she wanted to sit outside and she was concerned as to whether the client's behaviour was related to the diagnosis or whether she was merely disinterested in the group. Ms Watson asked the applicant to see Gail Collins at Carinyah, to see how that organisation had dealt with the client. The applicant did so and reported back to a meeting with Ms Watson and Ms Cullen. The applicant admitted that she said "her case is hopeless". To that expression Ms Watson took exception. The applicant then said: "Don't pick up on my English. I didn't mean 'hopeless' as a client but the case is hopeless because we can't improve much, only if we can. She likes music." According to the applicant Ms Watson then herself consulted Gail Collins and said to the applicant that what the applicant said about the case was not what Ms Collins had in fact said. The applicant felt belittled. She was a "professional person" being checked upon. The applicant complained about this conduct to the acting manager, Diana Baker. The applicant said that, later, Ms Watson told her that Ms Watson had complained about the applicant's conduct to the next level in the hierarchy, the Director of Community Services, Ms Anita Phillips. The applicant said that Ms Baker had told her that Ms Watson needed supervisory training and that Ms Watson had acted very unprofessionally in checking up on her at Carinyah and that she, Ms Baker, would take the matter up with Ms Phillips. The applicant said that Ms Watson was angry with her and was "very furious" when she ascertained that the applicant had complained to Ms Baker. 24. Ms Watson gave this evidence (T4 p36): Q. Did anything come up in that meeting. A. Yes, I asked Sarala did she speak with Gail, what happened, and she started to report back that this client was hopeless. Q. Could she have used the words "this case is hopeless". A. No, "this client was hopeless". Q. Did you say anything when she said that. A. I said how can you use the word "hopeless". She immediately interjected and said, "No, the case is hopeless," and she went on to talk about Annette's behaviour and why it was so hopeless. I think she and Gail had discussed the possibility of using music perhaps as a way of reaching [Annette]. ......... Q. Was anything else said about the use of that expression. A. I was offended by the word "hopeless" because I don't think it's very complimentary. To me it's a derogatory expression and that is why I reacted as I did and I don't think it's good for the team to be using words like that about clients that have, in fact, a great deal of potential. HIS HONOUR Q. Mrs Kushwaha immediately checked herself and said, "No, the case is hopeless," did she not say that. A. She did and I think , in part, that was due to my reaction because certainly, I mean I'm very familiar with the way Sarala uses language, I have worked with her for a number of years, and there was a body language and an intonement in the voice that indicated she was using the word "hopeless" in its very real context of being without hope, in a derogatory way. MR MANSFIELD Q. On the assumption that she meant to say that her case was hopeless, as opposed to the individual being hopeless, was it still something you regarded as being - A. Yes, myself I can't see a distinction between the word "case" and the person themselves. It is the person themselves that is being discussed as the case. 25. Ms Watson did not deny making her own approach to Ms Collins nor reporting that back to the applicant. She was contacted by Ms Baker after the applicant's approach to Ms Baker. Ms Baker and Ms Watson met, Ms Watson agreed with Ms Baker that there appeared to be some problems in the team. Ms Baker suggested some team training and recommended that Ms Watson approach Ms Phillips to that end. Ms Watson did so and Ms Phillips made arrangements for team training. Ms Watson said that she did not go to see Ms Phillips to complain about the applicant and that the two of them talked "in very general terms". She denied that is was suggested to her that she needed supervisory training. In cross examination, Ms Watson said she was "a bit surprised" when she ascertained that the applicant had complained to Ms Baker. She denied saying to the applicant "how dare you go there", as the applicant attested at T3 p40.2. 26. There are a number of matters arising here for determination, and a number of matters to note. Did the applicant say "this client is hopeless" or "her case is hopeless"? I believe it likely that she said that "this client is hopeless". The applicant's evidence at T1 p9.9 is internally inconsistent. If she had said "her case is hopeless" and Ms Watson then interjected, why explain that statement as "I didn't mean hopeless as a client, but the case is hopeless...". The response to the interjection is more consistent with the applicant's first having said "this client is hopeless". I also bear in mind the applicant's presentation to me. She gave oral evidence on five of the six days of oral evidence. She would often give answers before the examiner finished his question. She often gave unresponsive answers, indicating she had not listened properly to the question. Answers were often garbled, the syntax not having been thought out. She spoke very rapidly and usually she did not pause to think about her answers. Everything points to the applicant's speaking without thinking. Even if she thought that the case was hopeless it is quite likely that "the client is hopeless" would fall from her mouth. Secondly, even if she had said that the case was hopeless, there is much validity in Ms Watson's contention that it was still an inappropriate way to discuss a client's case. In these circumstances Ms Watson's behaviour at the team meeting appears to me to have been appropriate. 27. The applicant's major complaint was about Ms Watson's checking up on her by approaching Ms Collins. It has not been sought to rebut that allegation. Equally, the applicant said that Ms Watson told the applicant that she had misquoted Ms Collins and that allegation has not been rebutted either. The applicant then approached the acting manager with her complaint. That complaint had results. It led to team training and also led to the applicant's workload being reduced. This demonstrates that the applicant knew that she could go over the supervisor's head, if she wished, and seek redress and expect a positive outcome in an appropriate case. This does not assist the applicant on subsequent occasions when she alleges mistreatment by Ms Watson but did not seek redress. 28. Ms Watson admitted to the acting manager that there were problems in her team. That admission is hardly self-interested. Training was recommended and actively sought by her. These are not the actions of a lady who was merely piqued by the applicant's complaint. I am unable to assign to these actions any animus against the applicant. I do not accept that the reason for the approach to the Director was merely to complain about the applicant, nor do I accept that Ms Watson was furious or angry with the applicant. The objective results of this incident indicate that Ms Watson's actions did not have the sinister intent that the applicant would have me accept. The Appointment of Mr Turner 29. Mr David Turner was appointed Manager of HACC with effect from 4 September 1995. I note it as this point for chronological reasons. Mr Turner is a significant person in the events of 1996. Training 30. As I have indicated, the Annette Gallagher incident led directly to Team Training, not only for the aged care team, but also for others. It was described as "team building" (T2 p12) and was provided by an outside organisation. As the provision of training may be relevant in a case where s 11A is to be considered, the provision of other training should be considered. There was initial or induction training (T3 p11). In, probably, 1996 the applicant was provided with Time Management Training, at her own request, in Sydney (T3 p12) at the respondent's expense. The Use of Generalizations 31. In 1996 a number of documents were generated commenting on the applicant's work performance. Some of those documents refer to specific incidents but a large number of generalizations have been used. This is one of the reasons why this matter occupied so much time. It was necessary to tease out of the generalities the specific events being referred to. If I may say so, it appears to me that none of the witnesses was adequately interviewed prior to the commencement of the matter, leading to evidence being led on a piecemeal basis. This leads to a difficulty in mastering this matter as evidence as to one specific event occurs in a large number of places in the six transcripts. 32. The use of generalizations was much criticised by the applicant's counsel. Whilst it has led to inconvenience, that criticism is in my view unfounded. Most of the documents were generated after meetings attended by the applicant, to record or summarise what was discussed at the meetings. When being cross examined about Exhibit F (memo of 23 March 1996 relating to a meeting on 11 March 1996) Ms Watson gave this evidence (T5 p12): Q. Well do you not think it reasonable that she, the applicant, should know what it was she is alleged to have done wrong. A. To the best of my recollection the actual context of that was discussed at the meeting and I am assuming that this is the summary of the meeting. Yes, it's a summary of the meeting. I guess between all of us who were present at the meeting, we were aware of what those particular problems were. It wasn't a generalization because at the meeting those problems were actually identified. It's just in my recording of it I didn't itemise them and now I'm having trouble remembering what they were because this was four years ago. Two further answers on that page make the same point, as does an answer recorded as T5 p27.8. 33. I am persuaded that those answers represent what actually occurred, but not merely because Ms Watson said so. A number of meetings with the applicant were attended by Ms Watson or Mr Turner. Mr Turner was not challenged to say that that which Ms Watson had said was incorrect. At no time prior to ceasing work did the applicant ever complain to anyone about the use of generalizations in the memoranda. At no time did she protest that she did not know what the criticisms of her work performance were. If any generalities were discussed one would expect any person to ask for the specifics. I would certainly have expected it of the applicant, but there is no evidence of any such request or contemporaneous complaint. If the applicant believed that the generalities had no substance she could attempt to bypass Ms Watson and Mr Turner and go to the Director. She did not. There is no evidence of a complaint of this nature to a fellow worker. She could have raised a complaint of this nature to her Trade Union, but there is no evidence that she did. She did however make use of her Trade Union. One meeting was held on 12 August 1996 and was attended by Mr Clive Carey from a Trade Union. The memorandum following this meeting bears date 12 August 1996. It is couched in generalities. Nevertheless Mr Carey did not give evidence nor was his absence explained. If only generalities had been discussed, if the applicant did not know of the substance or of the specifics, I would have expected him to have been called. 34. The use of generalities is significant in another aspect. It has been suggested that since, at least, 11 March 1996 Ms Watson and or Mr Turner had only one aim in view, the termination of the applicant's services. If that were so, one would expect every specific event, incident or failure to be fully documented, to justify dismissal. No attempt was made to do that. The use of generalizations speaks, in my view, against any animus on the part of Ms Watson or Mr Turner. Transport 35. A major and persistent complaint by the respondent about the applicant's work performance was difficulty in making transport arrangements. The provision of transport may be divided into two categories which I shall describe as the ordinary and the special. Ordinary transport involved picking up clients at their homes and taking them to the HACC premises and returning them to their homes at the completion of the day's programme. For this purpose a form was used, an example of which is Exhibit 3. This is a form for the Monday Drop In for 14 October 1996, the last Monday that the applicant worked. It contains a list of the names of the clients, their telephone numbers and then a column headed "Do you require transport? Yes/No circle" opposite the entry for each name is printed "Y/N?" and the applicant was required to circle either Y or N depending on whether the client's answer was Yes or No. Exhibit 3 was introduced in the respondent's case as an example of her "confusing" written work. The respondent's transport coordinator, Margi Simonovski, "was having trouble understanding it, deciphering it" (T4 p31). The form is confusing, if not explained, which it was not. Some Ys have been circled, some Ns have been circled but for some clients neither has been circled. Many have a tick against them on the left hand side of the form, but I do not know whether that indicates that they were coming or merely had been contacted. Another hand appears to have added ticks on the right hand side of the form. A number of names have been scored out with a line, which might be thought to indicate that no transport was required but, then, the first client listed (whose name is obscured on the exhibit) has a line through the entry but Y has been circled. I leave at this stage consideration of this particular document to continue to describe the usual routine. When the form was completed, the applicant would either give it to the transport coordinator or she would tell the coordinator what was required. The latter practice appears to me to have been unnecessary, if the form had been properly completed and certainly was inefficient with time, the applicant dictating to the coordinator who would no doubt have to fill in another form. That practice adopted by the applicant does indeed suggest that her completion of such a form may not have been up to the required standard. 36. The applicant was required to complete such a form for each of her usual programmes. That appears to have been done by the applicant's inquiring of her clients at the previous programme or, if they were not present, by telephoning or otherwise contacting the client. Clearly, there might be changes during the course of the week. When a client wished to make a change he or she would telephone HACC and advise the change. Whoever took the call would make a note and pass it to the transport coordinator. The applicant's position is that things were out of her control when she was not present on Thursdays and Fridays, but the system adopted ought to have coped with that. 37. Special transport was generally required for an outing. For special transport another form needed to be completed, an example of which is Exhibit 9. It is not clear to me from the evidence whether, when special transport was required, an ordinary form as well as the special form was required. It seems to me likely that it was. 38. Very early in her evidence in chief the applicant acknowledged difficulty with transport arrangements (T1 p5.9): Q. From the time that you started working at the Council, was there any difficulty with transport arrangements. A. Sometimes. On the following page, the applicant advanced a reply to any criticism, assigning the difficulty largely to the clients: Q. Are you able to, from your perspective, tell us what the problem was with the transport arrangements. A. Sometimes they have memory problems, some have dementia, some not. They will forget sometimes. Sometimes they will be waiting but haven't said they were attending the programme, or vice versa, so this kind of things just happen time to time. Q. On occasions they organised transport and were not there. A. Yes. Q. When the transport arrived. A. Yes, or the other way round, you know. Q. On occasions they were waiting for transport but had not rung. Did that happen from time to time right from the beginning A. Yes occasionally. 39. This general reply was again made at T1 p9, T1 p17 and T3 p32. Unfortunately, it does not answer most of the criticisms raised. The applicant herself acknowledged occasional mistakes (T1 p8.7). The general reply does not answer specific complaints of not making the necessary request in writing to the transport coordinator for 13 February 1996 (Exhibit D) or not completing appropriate forms (Exhibit N, dated 10 October 1996). In cross examination the applicant admitted that "sometimes" she might not have filled out forms (T2 p13.4). When being cross examined about Exhibit F, the applicant admitted that faulty transport arrangements were made by her "occasionally", that she "occasionally" mucked up the transport arrangement, that she "occasionally" did not fill out forms. She acknowledged that such failures were capable of causing confusion and distress for clients (T2 pp26-28). 40. The issue really is how frequent were the applicant's mistakes? Her position was that they were "occasional". Exhibit F, a memo of 23 March 1996 following upon a meeting on 11 March 1996 implies that they were more frequent. Exhibit 15 (memo of 30 July 1996) mentions three specific events over a two week period. Exhibit N (memo of 10 October 1996) implies a continuing practice of failure to complete forms. When that exhibit was introduced into evidence, the applicant admitted in chief that she forgot a couple of times (T1 p33). It must be recalled that the applicant was here admitting failures immediately prior to 10 October 1996 when the respondent had first raised its general concerns on 11 March 1996, seven months earlier. 41. Ms Watson's evidence is that problems caused by the applicant "happened regularly", on a weekly basis with one or other of the Monday or Tuesday programmes (T4 p31). Similar problems did not arise with Jennifer Cullen's groups or with any other groups in HACC (T4 p33). That evidence suggests that there was no validity to the general reply initially advanced by the applicant. In cross examination, a bold question was put to Ms Watson and drew an unexpected response (T5 p4.2): Q. You do not suggest, do you, that transport arrangements did not break down in relation to Jennifer's group from time to time. A. I do actually.