Industrial Relations Commission New South Wales Medium Neutral Citation: Borthistle v NSW Health [2012] NSWIRComm 1001 Hearing dates: 23/01/12, 24/01/12 Decision date: 27 February 2012 Before: Ritchie C Decision: Catchwords: Mental Health Nurse terminated. Given first and final warning for bringing a bat onto the ward. Same nurse seen transferring an animal from one cage to another outside entrance to hospital. Respondent's belief that nurse had wilfully breached directive. Nurse believed what she had done during lunchtime not in breach of directive. Nurse terminated. Issue of meaning of words "ward", "unit" and "campus". Commission found in favour of Nurse and ordered reinstatement. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Adami v Maison de Luxe Ltd(1924)35 CLR. Schokman v RTA (2010) NSWIRComm 1011 James v Griffith City Council NSW IR Comm 1137. Rose &Telstra Corporation Ltd (AIRC Ross VP (Q 9292) 4/12/98. Bankstown City Council v Paris (1999) 93IR209. Outboard World v Muir (1993) 51 IR 167 Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410. Category: Principal judgment Parties: New South Wales Nurses Association ( on behalf of Christine Borthistle) and NSW Health. Representation: Respondent : Ms T Randall of Anderson Randall Solicitors. File Number(s): IRC 1565 of 2011 DECISION 1The New South Wales Nurses Association on behalf of its member Ms Christine Borthistle filed a claim for unfair dismissal under section 84 of the Industrial Relations Act, 1996 ( the Act) on 30 September 2011 against Northern NSW Local Health District ( the respondent). 2Conciliation before Connor C took place on 27 October , 3 November and 9 November 2011 when directions were given for the filing and serving of evidentiary material. 3The hearing was held in Lismore over two days when all the evidence was heard. Final submissions were sought by both parties to be in writing after they had read transcript. Commission reserved the ability to hold a further hearing if he had questions for either or both of the parties. Applicant's Case. 4The applicant filed two witness statements and both were required for cross examination. 5Mr Dave Pinson stated that he has held the position of bat co ordinator for Tweed Valley Wildlife Carers for 11 years and deals with approximately 200 injured flying -foxes per year. He is also the author of "The Flying- fox Manual 2009' ISBN: 978-0-9805340-0-9. He has also run one and two day bat rehabilitation training courses in Australia. He stated that flying foxes formed a continuously occupied camp at Rotary Park in September 2005. It was his opinion that there was never the slightest risk of any member being exposed to disease risk at any time. He stated that you can only catch one disease from flying foxes and that is ABLV ( Australian Bat Lyssavirus). There has only been one direct transfer of this very rare disease in 1996. Since that time no incidents have occurred since as a vaccine is freely available and the only method of transmission is from infected bat (less than 1% of the wild prevalence), via a direct bite whereby infected saliva enters an exposed nerve ending. He stated that there is no other transmission path. Because of the flying -fox roost located in Rotary Park less than 400 metres north-west from the handover point, once every 24 hours flying foxes leave their roost and spread out looking for food and then return in the early dawn. Thus at any time at least twice a day, the hospital campus will see hundreds or even thousands of flying foxes swirling or streaming over the very spot the handover took place. 6Ms Christine Borthistle stated that she is a registered nurse and holds a Diploma in Applied Science(Nursing) and a degree in Law and was admitted as a lawyer of the Supreme Court of NSW in 2007. She has been employed as a nurse since 1972. She commenced training as a psychiatric nurse in December 1974 and worked at Rozelle from 1977 to 1994 when she moved to the Lismore area. In 1997 she commenced work as a mental health nurse in the Adult Inpatient Unit, at Lismore Base Hospital which is now known as the Lismore Adult Mental Health Unit(LAHMH). She has worked there continuously until her termination by the respondent on 8 November 2011. 7She stated that prior to a disciplinary process in February 2011 she had never been the subject of any allegations or investigations of a disciplinary nature into her conduct or practice as a nurse. 8Outside of her employment she stated that she is actively involved in the rescue and care of wildlife in the Lismore region. This commenced in 2005. Since that time she stated that she has undergone extensive training on specific care of various animals, birds and reptiles. Since 2008 she has been actively involved in the care and rescue of flying bats. She has paid for and received the Rabies vaccine as protection against Lyssavirus. 9The disciplinary process that commenced in early 2011,concerned complaints regarding her alleged conduct in the workplace at the Lismore Adult Mental Health Inpatient Unit. Of the allegations made against Ms Borthistle three were fully substantiated. One of those was: that on 23 February 2011 it was reported that you have been bringing in live bats on night duty onto the ward on the night of 21 February 2011. The first and final warning letter dated 5 September 2011, signed by Richard Buss, Director , Mental Health Services, stated in part: Of particular concern to the Health Service is the fact that you have been found to bring live bats onto the ward. This is an issue which has been raised to management on several occasions over recent years and has been addressed in general terms by memos and emails to all staff. Bats can be carriers of many diseases including rabies and bat lyssavirus infection. The bringing of bats and other animals into a hospital ward poses serious risks to patients and other staff and undermines the professionalism and credibility of the Unit. This practice is totally unacceptable. I have enclosed a NSW Health Factsheet and NSW Health Control Guideline for your information and as an indication of the risk this practice represents. 10 Whilst Ms Borthistle did not deny that she had brought in the past, wildlife onto the ward, she stated that she had never brought an animal onto the hospital in circumstances where she felt that there was any risk to public safety. She was also of the view that contrary to her disciplinary letter that management were aware of her bringing animals onto the ward. 11She understood that the reference to " the Unit" in the 5 September 2011 meant the LAHMU. Since that date she has never taken animals into the LAMHU. 12On Friday 26 August 2011 prior to receiving her warning letter she parked her car in a spot reserved for the CMH courier. Ms Borthisle did not believe the courier came on a Friday. In her car in a cage was an injured magpie which she was going to deliver to a vet during her lunchtime. Mr Shaw Acting Richmond Network Manager, saw her and questioned why she was parked there. She told him that she had an injured magpie and that it needed to go to a vet which she did in her lunchtime. 13At 6.15 am on 9 September 2011 Ms Borthistle received a phone call from WIRES Northern Rivers Hotline asking if she was available to rescue and injured flying fox from a barbed wire fence. No one else was available so she collected the flying fox and took it to a local vet before continuing on and commence duty at Community Mental Health ( CMH). Ms Borthistle had been transferred to CMH during the disciplinary investigation. Unfortunately the vet would not take the injured animal so Ms Borthistle returned home to shower and change her clothes. She then went to work, parked in the shade in the same courier spot and left the flying fox in a cage in her car. At work she made arrangements for the flying fox to be collected during an early lunch break. 14At the appointed time the transfer took place from Ms Borthistle's car to the volunteer's car by the volunteer wrapping the flying fox in a towel removing it quickly from Ms Borthistle's cage to her own cage. At that point Mr Buss walked past and asked Ms Borthistle whether she was doing WIRES stuff while she was at work. Ms Borthistle replied that she was on a meal break. 15On 20 September 2011 Ms Borthistle went back to work in the LAMHU at the direction of Mr Shaw working only day shift. 16On 22 September 2001 Ms Borthistle received a letter from the Chief Executive Mr Crawford asking her to show cause as to why her employment should not be terminated. 17On 30 September 2011 the NSW Nurses Association filed an application in the IRC NSW seeking relief from a threatened dismissal. 18Ms Borthistle replied to the show cause letter in correspondence dated 4 October 2011. In the correspondence she denied that she was directed not to bring live bats and other animals onto the car park. She did acknowledge a direction to not bring bats and other animals into hospital wards. 19Between 20 September 2011 and 8 November 2011 Ms Borthistle continued to work in the LAMHU working in all three areas of the unit. 20In her statement in reply she advised that prior to the discussion she had had with Mr Shaw no one had questioned her work with WIRES and bats. She denied the suggestion from Mr Crawford that she had a reckless disregard for her responsibilities or that she disregarded the risks to public health and safety.. She stated that she had only rescued five bats in the previous five years and this was the first that occurred prior to shift. She stated in future she would refuse any call for rescue assistance that could possible overlap with her rostered working hours. She accepted that her actions could potentially affect the public's confidence and she unreservedly apologised for her actions. 21She confirmed that prior to February 2011 complaints, she stated that she had not had a complaint made against her that proceeded to a disciplinary investigation. She denied the suggestion made by Martin Gallagher that he told her not to bring a bat onto the unit in 2008. She said that Martin Gallagher called it a "wee beasty'. She stated that at no stage has she filed a formal complaint about Martin Gallagher. 22She stated that during the conciliation proceedings of this matter before Connor C she advised that she would comply with a direction not to bring wildlife onto the hospital grounds. 23She also stated that her termination has created serious problems for her financially with her carrying substantial debt that she had hoped to clear over the course of the next three years. 24Two documents entitled BRIEF undated and unsigned became exhibits. Mr Crawford advised that he received them as information regarding the employment of Ms Borthistle. Exhibit E gave a brief history of Ms Borthistle's work background, the subject matter of February 2011 that was investigated and the outcome which resulted in Mr Buss issuing Ms Borthistle with a first and final warning regarding her conduct in the workplace. " Particular mention was made to the risks associated with bringing live bats(and other animals) onto a hospital ward". It went onto to describe the current issues and recommended that Ms Borthistle be provided with a show cause letter in response to her failure to follow a lawful directive by bringing live animals onto the health campus. 25The second BRIEF exhibit F again directed to Mr Crawford repeated the same work background as exhibit E but this time including Ms Borthistle's response to the show cause letter and what he seen on CCTV footage and recommended her termination. 26Exhibit G consisted of two emails. The first was between Ms Helena Bernard ( Workforce Development Coordinator) to Mr Buss dated 7 November 2011, which stated in part that "the directive not to bring live animals onto a hospital ward, rather than the 'health campus' as an issue, we consider to be hair splitting." The second email same date from Ms Katie Willey A/Workforce Manager to Mr Buss, Mr Shaw and Ms Boyd outlined issues and comment in preparation for the second conciliation before Connor C. It is noted that included is the comment that there was no evidence to support the organisation has issued a directive to Ms Borthistle that the bringing of animals into the health campus is not permitted. "On this premise, it would be difficult to argue that she did not follow directive as no directive was given." It also stated that the issues of Ms Borthistle not wearing protective clothing when transferring the bat and the proximity to patients ,there being no evidence that those issues were raised with Ms Borthistle as part of the follow up to the incident. Respondent's Case. 27The respondent called six witnesses. 28Mr Richard Buss stated that he has been employed by the respondent in a managerial capacity since 1994. He is responsible for the day to day operations of the mental health services from Grafton to Tweed Heads. He stated that in his capacity as Director of Mental Health, he is required to instigate, recommend and organise investigations into employees where there are complaints made against them which warrant investigation. 29He was aware of correspondence between Ms Borthistle and the respondent including her response to the show cause letter and the letter terminating her services. 30He stated that the termination of Ms Borthistle was principally as a result of the conduct of Ms Borthistle on 9 September 2011 which was in direct contradiction of the first and final warning provided to her by him on 5 September 2011. He said her conduct on 9 September 2011 was a flagrant disregard of a directive issued only days before and the incident was of itself considered to represent serious misconduct. 31 Mr Buss went through the history of the investigation from allegations made in February 2011. The investigation report was provided to Ms Borthistle and she responded to it. One of the issues was that Ms Borthistle had brought animals including bats onto the ward. Mr Buss determined that a first and final warning was appropriate. He stated that when provided with the warning he deliberately pointed out to Ms Borthistle that his concern was the bringing of bats on the ward. He said that Ms Borthistle was provided with documentation in relation to health risks posed by animals and in particular bats. She was also advised that a repeat of her conduct would lead to further disciplinary action, including dismissal. His view that the directive only went to the "ward" was rejected as completely disingenuous and misleading. Whilst his warning letter made reference to the"unit" and she has taken that to be the LAHMU in his view it was splitting hairs to suggest it didn't also encompass the campus of the NNSW LHD. 32Annexed to his statement was a Mental Health Services memo dated 12 December 2007. It stated in part: In accordance with Infection Control and Occupational Health and Safety all staff are directed that NO ANIMALS are to be brought onto the unit by staff members, patients or visitors AT ANY TIME. Staff who do not follow this directive may find disciplinary action in train. 33It was Mr Buss's statement that where the transfer took place was within the LAHMU in a driveway that is a clearway because of its use by police and ambulances. It can be a high traffic area. 34On 9 September 2011 he saw Ms Borthistle at a vehicle parked in the Mental Health Courier Parking. As he made his way to the doors of Area Mental Health he observed a number of patients and other people who had cause to be at the hospital. He saw Ms Borthistle move a cage from her car towards another vehicle. He didn't remember whether she was wearing protective gloves at the time. In his view Ms Borthistle was moving cages with animals inside them whilst on campus only a few days after she had received a final warning. 35When he entered the building he told Ms Bernard what he had seen and then sent an email to Mr Shaw for him to investigate the matter. 36In Mr Buss's view the actions of Ms Borthistle that morning were convenient to her and contrary to her final warning. 37He stated that the Northern NSW Local Health District has a legislative requirement to place the health and safety of patients as a paramount concern and has an ongoing obligation to members of the public to assess risks and concerns in relation to public health and safety. The maintenance of health and safety for patients at the Local health District is a legislative requirement in accordance with section 119 of the Local Health Services Act (NSW). In circumstances where this is breached by an employee the Local Health District has no alternative but termination. He stated that the risk that Ms Borthistle did not sterilise herself before returning to her work, presented a risk to public health. Her conduct on that day was a risk to public confidence in the delivery of health services. This was at a time when the Northern Rivers was in the midst of the worst Hendra virus in known history. The applicant did not have any insight in relation to the impact of her actions even after the warning. 38Mr Warren Shaw stated that he had been employed by the respondent and its predecessors since 1990 and is currently Area Nurse Manager Mental Health in Mental Health Services. He has been a registered nurse since 1982. He has held his current position for over three years. He stated that his contact with Ms Borthistle became regular when she was re-deployed into Community Mental Health in 2011 when she returned from leave. He was then her line manager. 39He stated that he remembered that he did speak to Ms Borthistle concerning her parking in part of the health campus. He does not remember be told anything about a magpie. He was also unaware that the courier did not work on Fridays. 40On 9 September 2011 he received a phone call from Mr Buss concerning what he had seen in the car park. Ms Borthistle then came into his office in an agitated state and said that she had been seen by Mr Buss transferring the bats. She then explained the circumstances of how she had the injured bat in her care at work. He stated that she bringing bats onto the campus vis-a-vi whilst the Health Department were sending teams out to care for people and the public perception. Also that he would be horrified if fruit bats were on a general hospital ward and it would be no different in mental health. She replied that she had no intention of bringing the bats into the building. 41Mr Christopher Crawford stated that he is the Chief Executive of Northern NSW Local Health District. He has been the Chief Executive Officer and its predecessors since July 2000. In this role he is required to consider evidence Investigative Reports and Recommendations which may recommend particular disciplinary action against employees. 42He stated that between June 2011 and September 2011 there was a Hendra virus outbreak in the Northern Rivers and Southern Queensland areas. As a result , the Public Health unit within the Local health District was required to issue an Emergency Management Response. 43On 9 September 2011 he was advised of an incident at Area Mental Health of an employee having a live animal on hospital campus. Later he was advised it was a bat. He was provided with a Brief outlining the incident and the previous history of the employee. He was advised that the employee had been provided with a First and Final warning that week in relation to similar conduct. He believed the relationship had broken down and that she be sent correspondence requesting her to explain why her employment should be terminated. In his view what occurred on 9 September 2011 was "in direct contradiction to the first and final disciplinary warning issued to you on 5 September 2011." 44 On 8 November 2011 he sent correspondence to Ms Borthistle terminating her employment. 45The statement of Dr James Francis Clarke-Williams was marked as an exhibit but he was not required for cross-examination. He statement advised that he has been a veterinarian for 31 years and is the business owner of the Goonellabah Veterinary Hospital. His current field of practice includes from time to time dealing with bats including flying foxes that are sick, injured or need to be euthanized. He is aware that he is only one of three or four veterinarians in the Lismore area who is able to deal with bats and flying foxes because of having the relevant vaccinations. Registered WIRES and Northern Rivers Wildlife Carers are aware that he has experience in treating and operating on animals and his details are available through both organisations. 46Mr Martin Gallagher stated that he is employed by the respondent and has worked for them since 1998. He is currently a Nurse Unit Manager. He has known Ms Borthistle for the last 12 years. He confirmed that he knew that Ms Borthistle in about 2008 brought a bat onto the ward. He advised her to stop bringing bats onto the ward. He told her it was a safety risk as they may carry diseases. After he told her again not to bring bats onto the ward she ceased. He refuted the suggestion that he had ever fed a bat or that he called the bat a "wee beasty'. Consideration and Decision. General Principles Meaning of harsh, unreasonable and unjust. 47It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: 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. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable' A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 48In Rose and Telstra Corporation Ltd(AIRC Ross VP) ( Q9292) 4/12/98, it was stated In my view, for the purpose of s170CG, a termination of employment may be: harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or unreasonable, because it was decided on inferences would not reasonably have been drawn from the material before the employer. 49As a consequence of allegations made against Ms Borthistle in early 2011, an investigation took place. Ms Borthistle was given an opportunity to respond to the allegations which she did in August 2011. The result of the investigations was a first and final warning from Mr Buss dated 5 September 2011. One of the allegations that was substantiated was that Ms Borthistle had brought a bat onto the ward whilst she was on duty. 50This correspondence stated in part: Of particular concern to the Health Service is the fact that you have been found to bring live bats onto the ward. This is an issue which has been raised to management on several occasions over recent years and has been addressed in general terms by memos and emails to all staff. The bringing of bats and other animals into a hospital ward poses serious risk to patients and other staff and undermines the professionalism and credibility of the Unit. This practice is totally unacceptable. I have enclosed a NSW Health Factsheet and NSW Health Control Guidline for your information and as an indication of the risk this practice represents. Given the serious nature of your conduct you are issued with a first and final warning that if there are any further departures from acceptable conduct in the workplace, specifically the NSW Health Code of Conduct, the Code of Professional Conduct for Nurses and Occupational Health and Safety legislation, that you may be subject to further disciplinary action, including dismissal. 51She received this first and final warning on or near 5 September 2011. Ms Borthistle understood the reference of "unit" meaning the Lismore Adult Mental Health Unit (LAMHU). She accepted that Mr Buss had the right to protect the professionalism and credibility of the Unit and she did not dispute or cavil with the instruction not to bring animals on to a hospital unit. 52Ms Borthistle gave evidence that she had brought bats into the ward in 2008 and in February 2011. She admitted that in bring a bat into the ward she contravened two written directions from management produced in 2007 and another in 2009. Post February 2011 she did not bring any bats into the ward. It was her view that supervisors had been aware of the injured bats she had brought into the ward. 53On 5 September 2011 she had received an early phone at 6.15am at home that an injured bat was entangled on a wire fence. She found the bat at 6.45am retrieved the bat and sought to take it to a local vet which opened at 8.00am, where she knew had previously taken injured bats. This time the bat was not accepted. Ms Borthistle then returned home showered, changed her clothes and proceeded to work. On that day she was the Duty Officer working 8.30am to 5.00pm. It was agreed she arrived at work just prior to 10.00am. She parked in a courier parking spot near one of the entrances to the hospital. At work she organised for another wild life volunteer to collect the injured bat. This person arrived at approximately 11.00am. At this point Ms Borthistle took an early unpaid lunch and went out of the hospital building to where her car was parked. 54In her evidence Ms Borthistle stated that she took the cat cage out of her car which had the bat inside, and placed it near where the carer's car was stationed. The carer's car was parked near Ms Bothistle's and approximately five metres from the entrance to the hospital. She stated that the carer opened the cage placed the bat in a towel had a brief look at it then placed it in another cage in the hatch back of her car and left the area. Whilst this brief exchange took place Mr Buss walked onto the scene and made a brief comment to Ms Bothistle about her continuing to do work for Wires. In evidence Mr Buss did not actually see what type of animal/bird was involved in the exchange. Ms Borthistle stated that at no time did she touch the bat during the exchange. She stated that she was upset at the way she had been spoken to by Mr Buss and went to speak to Mr Shaw and advised him what had happened. No one from the respondent spoke to her about the incident until she received correspondence from the Chief Executive Mr Crawford. 55The correspondence from Mr Crawford dated 22 September 2011 sought reasons why she should not be terminated . She had ten days to reply. 56The correspondence stated in part : I write in relation to the recent investigation into complaints regarding your conduct in the workplace whilst employed in the Lismore Adult Mental Health Inpatient Unit and subsequent first and final disciplinary warning issued to you in correspondence dated 5 September 2011. In this correspondence , particular reference was drawn to your serious breach in professional conduct regarding bringing live bats and other animals onto the health campus. As stated previously , this is an issue which poses serious risks to the health and safety of patients and staff and undermines the professionalism and credibility of the health service. You have been provided with a NSW Health Factsheet and NSW Health Control Guidlines in relation to the disease risks that bats can carry. You have been provided with clear direction on this issue. On Friday 9 September 2011 Mr Richard Buss, Director Mental health, observed you at the front entrance of mental Health Services, on the health campus, placing and moving animal cages with live animals in them from the ground to the car. This conduct is in direct contradiction to the first and final disciplinary warning issued to you on 5 September 2011. Your continued unsatisfactory professional conduct and your failure to follow a reasonable and lawful directive, as well as your demonstrated lack of commitment to fulfil the employment relationship as a Registered Nurse within the health Service in a safe and considered manner are incompatible with the expected standards of this organisation. The record of formal disciplinary process is : 5 September 2011- First and final warning letter, 16 September 2011- Brief to the Chief Executive confirming further disciplinary process Based upon your employment record the disciplinary action proposed is that your employment contract is terminated. 57In cross examination Mr Crawford identified exhibit E as the type of information he was given in the BRIEF. He was just not sure whether it was a draft or a final. This BRIEF repeated the allegations that were investigated earlier in the year and the outcome of the independent investigation. It noted that : Particular mention was made to the risks associated with bringing live bats(and other animals) onto a hospital ward. Under the heading of RECOMMENDATION it stated: That Ms Borthistle is provided with a Show Cause letter (see draft attached) in response to her failure to follow a lawful directive by bringing live animals onto the health campus. He thought Mr Buss was the author. Mr Buss denied being the author. This BRIEF was undated and not signed. 58Ms Borthistle replied to Mr Crawford letter stating what had occurred on that day of 9 September 2011. In her correspondence dated 4 October 2011, she stated in part : I deny that I was directed to not bring live bats and other animals onto the car park. I do however acknowledge a direction to not bring bats and other animals into hospital wards. 59Exhibit F was another BRIEF undated and unsigned directed to Mr Crawford. Mr Crawford again believed Mr Buss had been the author. Mr Buss denied being the author. Exhibit F built on the exhibit E repeating much of the first BRIEF detailing what had occurred on 9 September 2011 and noting Ms Borthistle's response to the directive. The author gave a report on what the CCTV footage showed. The recommendation was for Ms Borthistle to be terminated. 60Exhibit G was a series of emails between officers of the respondent. Ms Katie Willey A/Workforce Manager sent an email on 7 November 2011 to Mr Buss, Mr Shaw and Mr Boyd concerning the alleged unfair dismissal of Ms Christine Borthistle. Whilst this email preceded the termination of Ms Borthistle it was raised after the NSW Nurses Association had filed a threatened dismissal. She stated in part: The incident by Ms Borthistle in February 2011 resulted, as part of a 'first and final warning' letter, in the issuing of personal instruction to Ms Borthistle that the bringing of bats and other animals in a hospital ward is 'totally unacceptable'. Despite the intent of these instructions there is no evidence to support that the organisation has issued a directive to Ms Borthistle that the bringing of animals into the health campus is not permitted. On this premise, it would be difficult to argue that she did not follow directive as no directive was given. Ms Willey went on to state: The Brief to te (sic) CE advising recommendation for Ms Borthistle's dismissal indicates concern that during the incident on 9 September 2011 she was not wearing protective clothing and that there were concers (sic) aboutt (sic) he proximity of patients. There is no evidence to indicate that these issues were raised with Ms Borthistle as part of the follow up to this incident. 61On the following day Mr Crawford directed correspondence to Ms Crawford terminating her services stating in part: Based on the evidence of the current investigation and your previous employment record the penalty imposed is : Your services will be terminated effective immediately. You will be paid two weeks salary in lieu of notice to 22 November 2011. Monies owing to you , including all relevant entitlements will be deposited into your current nominated account. 62In cross examination Mr Crawford stated that in considering the two BRIEFS he only took into account the first and final warning and the 9 September 2012 incident. When using the term "unit" Mr Crawford was referring to the Lismore Base Hospital Mental Health Unit. The term "unit" is wider than the term "ward". In his view the term "unit" and "campus" are interchangeable. It was his view that the correspondence of 5 September 2011 gave the applicant a direction not to bring the bats into the proximity of patients. Ms Borthistle did this by bringing the bat so close to the patients who were at the entrance turning circle for the Mental Health Unit. He also believed that even if the bats did not get loose and bite or scratch a patient/employee, people would think that we were allowing the risk of that to arise when we shouldn't be allowing that. 63Mr Crawford was asked the following question: Q. Do you agree that if the warning letter had said, "You are not to take bats onto the mental health campus", that would've removed any doubt ? A. It could have been clearer in terms of the sign. We do use certain terminology interchangeably and mental unit and mental health campus are used somewhat interchangeably in terms of their usage. But in terms of linking with the sign, obviously campus may have been clearer. 64In cross examination Mr Shaw agreed that a ward or hospital ward was something that was generally contained within a building. In response to a hypothetical he agreed that a person on the driveway would not be in a ward. He also agreed that the "campus" is bigger than the "unit". 65Mr Gallagher in cross examination was asked the following questions: Q. Is your understanding that a ward is generally an area inside a building ? A. Yes. Q. The health campus is the broader grounds of the hospital ? A. Yes. 66Mr Buss in his evidence accepted in response to a hypothetical question that the driveway was not part of a ward but is part of the campus. 67Ms Borthistle evidence from the very start of this matter was that she did not believe that her actions on 9 September 2011 were in breach of the direction given to her through the first and final warning of "the bringing of bats and other animals into a hospital ward....." 68Taking into consideration the evidence that has fallen from Ms Borthistle, Mr Shaw, Gallagher and Buss I do not accept that the term "ward" covers the driveway of the LAMHS. 69The evidence of Mr Crawford was that the term "unit" in the first and final warning letter meant the whole Lismore Base Hospital Mental Health Unit including the entrance to the unit and the turning circle. Taking into consideration that Mr Crawford was not the author of that correspondence I do think a note of caution has be taken when considering this evidence. 70 Mr Buss stated that Ms Borthistle: " has taken my comments out of context and suggests that my reference to the Unit was reference to LAHMU. Whilst it is true that I meant that the Unit was compromised, it is splitting hairs to suggest that it didn't also encompass the campus of the NNSW LHD." 71 My summary of that statement is that where Mr Buss is stating the word "unit" one should read or interpret as "campus". It was the respondent's submission that a person of Ms Borthistle's experience should have recognised the risks to patients and staff because " bats can be the carriers of many diseases." In their submission that risk is not geographically restricted to the confines of a ward. 72 I note the comment made in Adami v Maison de Luxe Ltd (1924) 35 CLR 143 : An order that is not so clearly or as expressed to be free from doubt has been left so by the act of both parties. Mr Buss's described Ms Borthistle's responding comments as "splitting hairs". I do not agree with this response. I do not think it is acceptable when expressed in a first and final warning where if one transgresses, termination of one's employment awaits that lack of clarity or doubt exists. In my view clarity in the correspondence is essential if the ultimate sanction awaits. It was expressed in the case that if Ms Borthistle had doubts then she should have clarified exactly what she could or could not do. If one is guided by the above High Court judgement, then both parties are at fault, not just Ms Borthistle. 73 I note the comments in the written submissions in reply and the statement that grammatically and contextually, the reference to the word "the unit" ( in the first and final letter of 5 September 2011) can only have the meaning as a reference to a hospital ward. In summary it is my finding that it would be unsafe for this Commission to make a finding that the word "unit" should be read as" campus" in this context. 74One of the main concerns of Mr Crawford was the risk to patients as to the consequences of coming into contact with a injured bat. At the time of exchange of the injured bat, from the viewing of the CCTV there were two persons at an entrance to the hospital. Evidence was heard that a bat can not fly off the ground but must release itself from a perched position so it can flap its wings and commence to fly. Ms Borthistle stated that such were the injuries to this bat that it could not fly. That submission may cover the situation of the bat but does not cover that of the two persons. What they did or did not see is unknown. From the CCTV coverage they did not react to the transfer and did not seek to get involved. But the possibility that they could have reacted in some fashion existed. 75Mr Crawford was also concerned with the public reaction to such a transfer taking place where it did and when it did. This I find would have been genuine for at the time there was a great deal of media coverage ( not all of it accurate) in the area due to the Hendra virus outbreak. The situation that a human being can only get the Hendra virus through contact with an infected horse was not questioned. It was the evidence that lyssavirus can be caught by being bitten or scratched by an infected bat and therefore exposed to the saliva and various products. Ms Borthistle's evidence was that the transfer was done quickly by a trained, experienced and vaccinated handler. The injured bat was wrapped in a towel and transferred from one cage to another. Mr Buss who walked onto the scene did not know what was being transferred. The threat of a third person being scratched or bitten during this exchange, taking into consideration the experience of the person carrying out the exchange and the evidence of Mr Pinson with respect to the % of infected bats in the wild, it is my finding that it would have been at it's highest, minimal. 76Mr Bailey for Ms Borthistle submitted that procedural fairness did not occur. He stated that the respondent failed to adhere to its own policy being the Disciplinary Process in NSW Health-A Framework for Managing. 77In summary Mr Bailey stated that no investigative officer was appointed and therefore no formal investigation of the 9 September 2011 incident took place. Also Ms Borthistle did not have the opportunity to read either of the two BRIEFS( neither of which were dated or signed) that had been prepared as part of the process. There was also no formal interview of Ms Borthistle. He stated that at no stage was Ms Borthistle given a clear opportunity to put forward her version of the alleged facts or an explanation in relation to the allegations prior to Mr Crawford clearly forming the view that she had acted in 'direct contradiction' of the Directive. Findings were made in relation to matters that were never put to the applicant. The decision maker acted upon recommendations that he understood were made by a particular person, when those recommendations were made by some other unknown person. Mr Bailey quoted from Schokman v RTA[2010]NSWIRComm1011 with respect to the issue of failing to grant the employee an opportunity to be heard. 78Ms Randall for the respondent stated that there had not been a serious contest as to the alleged wrongdoing by Ms Borthistle as she had been observed by Mr Buss, her conduct had been captured by CCTV and Ms Borthistle had admitted the conduct immediately after the incident to Mr Shaw. It was submitted that the omissions on the part of the respondent did not result in procedural unfairness. I 79The Disciplinary Process in NSW Health-A Framework for Managing states on the front page under the sub heading of Summary the following: Framework of principles for disciplinary policy and procedures to ensure matters are dealt with effectively in public health organisations and Ambulance Service. Also on the front page is the statement: This Policy Directive may be varied, withdrawn or replaced at any time. Compliance with this directive is mandatory for NSW Health and is a condition of subsidy for public health organisations. 80As expressed previously, post 9 September 2011 Ms Borthistle received a letter dated 22 September 2011 from Mr Crawford stating what was alleged to have occurred on 9 September 2011. He recounted the first and final warning letter of 5 September 2011 and the bringing of live bats and other animals onto the health campus. He stated in part: You have been provided with clear direction on this issue. He went on to state what was seen by Mr Buss on 9 September 2011. He stated : This conduct is in direct contradiction to the first and final warning issued to you on 5 September 2011. The letter went on to state: Based upon your employment record the disciplinary action proposed is that your employment contract is terminated. Ms Borthistle was given ten working days to respond to the proposed action. 81 It is my finding that this correspondence did make a conclusion as to the breach of the first and final warning prior to any opportunity for Ms Borthistle to state her case. 82 It is my finding that an appropriate officer should have been appointed to conduct an investigation who gathered evidence by way of face to face interviews, which would have included Ms Borthistle, Mr Buss, Mr Shaw and Ms Willey and that report then be provided to Mr Crawford. To have provided to Mr Crawford the two BRIEFS giving recommendations, including termination, without the author of the BRIEFS being clearly identified was in my view unhelpful to Mr Crawford. 83In final written submissions, the respondent stated that Ms Borthistle through her conduct on 9 September 2011, wilfully breached the said direction. If by wilfully it is meant intentionally or deliberately, then I do not accept this submission. The bat was brought by Ms Borthistle on that day onto the hospital grounds, because the vet she went to earlier in the morning could not accept it. It was circumstances on the day rather than a considered plan that resulted in the injured bat being transferred where it was. 84I am satisfied that it was Ms Borthistle's genuinely held belief, that in accordance with the directive given in the correspondence dated 5 September 2011, that she did not seek to intentionally breach this directive by what occurred on 9 September 2011. 85In summary it is my finding that the termination of Ms Borthistle was harsh, unreasonable and unjust. 86Ms Borthistle seeks a return to her previous position. Ms Borthistle continued to work in the LAMHU following the 9 September 2011 incident up to her termination on 8 November 2011. There was no evidence placed before the Commission that Ms Borthistle has breached the directive of not bringing animals onto the ward since the 2011 disciplinary process. She advised the Commission that she will not do so in the future. I note that her immediate supervisor Mr Gallagher agreed that any outstanding workplace issues can be worked through. I see no barrier as to the return of Ms Borthistle to her position. 87If reinstated Ms Borthistle sought remuneration for the lost wages since termination. When giving evidence on 23 January 2012 Ms Borthistle stated that she had not formally applied for any positions but made inquiries about the availability of nursing. No evidence concerning these inquiries was provided to the Commission. She did not believe that at her age ( born in 1950) and limited ability to just work in mental health anyone would employ her having been sacked. She then stated that she had looked at the possibilities of other types of employment. When asked what types of employment she stated "Well, working in the mines as a cleaner perhaps." Taking into consideration what she had previously stated about her age and work background I do not think this was a serious response to an appropriate question. No details were given to the Commission with respect to the names of any companies she has applied to or interviews she has attended. 88 As she had in 2007 been admitted as a solicitor to the Supreme Court of New South Wales she was asked about any inquiries about finding a position in the legal profession. She advised she had not at that stage. 89I note the comments made by Bishop C in James v Griffith City Council at 528: Unfortunately there was no evidence before me as to any action that Mr Grose has taken to seek to mitigate his loss by seeking alternate employment. An applicant just cannot sit on his/her hands awaiting the outcome of an unfair dismissal case even if they are seeking reinstatement and believe that they have a good case. I therefore am in a similar situation. As I am unaware of what action(s) Ms Borthistle may have taken post the hearing dates, I will only award back pay from that date of hearing being 23 January 2012, less any monies that have been received from any employment, up to the date of reinstatement. 90Ms Borthistle also sought continuity of service. I note the comments made in the written final submissions with respect to Ms Borthistle's leave balances being restored and a reconciliation conducted between the amount of lost remuneration ordered and the monies received by Ms Borthistle upon termination in satisfaction of untaken leave. The parties should meet for this reconciliation to take place. I give leave to the parties to have this issue brought back before this Commission, if required. 91I make the following Orders. 1.That in accordance with s. 89(1) 0f the Act, I Order that the Director-General of the NSW Department of Health in respect of the Northern NSW Local Health District reinstate Ms Christine Borthistle to the position of registered nurse within the Lismore Adult Mental Health Unit within 14 days of the date of this Decision. 2.That in accordance with s. 89(3) of the Act, I Order the Director-General of the NSW Department of Health in respect of the Northern NSW Local Health District pay to Ms Borthistle a sum of money equal to her award rate of pay from 23 January 2012 to the date of reinstatement less appropriate taxation, less any wages from any employment she may have received during this period. 3.That in accordance with s. 89(4)of the Act, I Order that the period of employment of Ms Borthistle is taken not to have been broken by the dismissal. D.RITCHIE COMMISSIONER 92 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: 24 April 2012