Industrial Relations Commission New South Wales Medium Neutral Citation: Rosten v Mid North Coast Local Health District [2014] NSWIRComm 29 Hearing dates: 14-15 May 2014 Decision date: 12 June 2014 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: (1) Pursuant to section 89 (1) of the Industrial Relations Act 1996 Mid North Coast Local Health District is ordered to reinstate Ms Eveon Rosten to her former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision. (2) Pursuant to section 89 (3) of the Industrial Relations Act 1996 Mid North Coast Local Health District is ordered to pay to Ms Eveon Rosten the remuneration she would, but for being dismissed, have received before being reinstated in accordance with the order. (3) Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Ms Eveon Rosten by Mid North Coast Local Health District is taken not to have been broken by the dismissal. Catchwords: UNFAIR DISMISSAL - allegation of misconduct in treatment of elderly patient. Held - allegations not supported by the evidence - termination harsh, unreasonable and unjust - reinstatement ordered with no loss of wages and continuity of service Legislation Cited: Industrial Relations Act 1996 Cases Cited: Minister for Immigration and Citizenship v Li [2012] FCAFC 74 Re Pochi in Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Jones v Dunkel (1959) 101 CLR 298 Briginshaw v Briginshaw (1938) 60 CLR 336 Texts Cited: Heydon, Cross on Evidence at [1065] Category: Principal judgment Parties: Eveon Rosten (Applicant) Mid North Coast Local Health District (Respondent) Representation: B & C Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): IRC 832 of 2013 DECISION 1Ms Eveon Rosten was employed as a nurse at Kempsey Hospital from May 2002 to 14 October 2013 when her employment was summarily terminated on the basis of misconduct. 2Ms Rosten's employment was terminated on the grounds that the employer, Mid North Coast Local Health District, had formed the view that on the night of 18 February 2013 Ms Rosten had abused a patient identified to the Commission, referred to herein as "Mrs B". 3The specific allegations are set out in correspondence to Ms Rosten of 27 August 2013 (Attach I to Ex 10) in the following terms: Allegation 1 You slapped patient Mrs B twice across the face in the night shift of Monday 18 February 2013 whilst caring for TB on the Medical floor of Kempsey District Hospital, which may constitute a serious breach of the MNCLHD Code of Conduct and Code of Professional Conduct for nurses in Australia. Allegation 2 You manually handled patient Mrs TB legs in a rough and uncaring manner whilst assisting her back into bed on the night shift of Monday 18 February 2013 which may constitute a breach of the MNCLHD Code of Conduct and Code of Professional Conduct for nurses in Australia. Allegation 3 You referred to Mrs TB in a derogatory manner (using words to effect of "she has been a pain in the ass") during clinical handover to the oncoming shift on the morning of Tuesday 19 February 2013, which may constitute a breach of the MNCLHD Code of Conduct and Code of Professional Conduct for nurses in Australia. 4Ms Rosten denies that these events occurred and asserts that Mrs B is mistaken in her complaint. 5The matter was unable to be resolved in conciliation and was subject to Arbitration proceedings at Kempsey Courthouse on 14 and 15 May 2014. 6Mr Byrnes, Solicitor, appeared on behalf of the Applicant and brought evidence from her only. 7Mr Mattson, Solicitor, appeared for the Respondent with Mr Cameron, an Officer of the Respondent 8Mr Mattson brought evidence from: Ms Margaret Scott, formerly Nurse Unit Manager, Kempsey Hospital, now retired; Ms Melinda Macfarlane, Registered Nurse, Kempsey Hospital; Mr Stephen Rodwell, Executive Director Nursing, Midwifery and Workforce of Mid North Coast Local Health District; Ms Milu Tom, Registered Nurse, Kempsey Hospital; Mrs Jenny Rodwell, Nurse Manager Special Initiatives at Coffs Harbour Health Campus for the Mid North Coast Local Health District; Ms Gai McPherson, Dementia / delirium / psychogeriatric Clinical Nurse Consultant, Aged Care Services, Mid North Coast Local Health District; Ms Christine Brown, Endorsed Enrolled Nurse, Kempsey Hospital; Ms Gillian Stubley, Nurse Unit Manager on the Medical Ward at Kempsey Hospital. The Evidence 9Mrs B was 96 years old when admitted to Kempsey Hospital on 14 February 2013. 10On the night of 18 February 2013 Ms Rosten was working with Ms Milu Tom. 11Ms Rosten provided care to Mrs B during the night, which required a number of assisted movements from her bed to the toilet. Mrs B called for her daughter on each occasion; Ms Rosten responded, advising Mrs B that her daughter had gone home and would return the next day. Notwithstanding this advice Mrs B continued to call for her daughter when seeking assistance. 12There is evidence that Mrs B is attentively cared for by her family, one or more of whom it would appear attend the hospital regularly and consistently to comfort and assist her, relieving nursing staff of much of the routine requirements. 13On the morning of 19 February 2013 Mrs B told her daughter that she had been slapped and roughly handled. 14There is a question of Mrs B's competence. The clinical records (Ex 7) identify mild dementia and episodes of delirium. 15A report was sought by the employer (Attach O to Ex 13, the statement of Jenny Rodwell) from Ms Gai McPherson, who reviewed Mrs B's clinical records and made the following findings and conclusions: "7.3.2 Findings and Conclusions Eveon Rosten was the nurse assigned to care for Mrs B on the night shift when Mrs B alleges a nurse slapped her across the face and roughly manually handled her. There is evidence that Mrs B needed to go to the toilet frequently overnight. There is evidence from a witness that Eveon Rosten was 'frustrated' with Mrs B, possibly due to frequency of toileting and incontinence. Milu Tom confirms that Mrs B was 'calling out' frequently during the night. Mrs B described the nurse who assaulted her as being 'angry' numerous times and using 'bad words'. This is consistent with Eveon Rosten referring to Mrs B in a derogatory manner during clinical handover. This allegation is substantiated as it is more probable than not that Eveon Rosten referred to Mrs B in a derogatory manner." 16The evidence of Ms Scott is that she had been a nurse for over 50 years, is now retired but was the Nurse Unit Manager on duty on 19 February 2013. 17Ms Scott deposed that around 4pm on 19 February 2013 she spoke with Mrs B and her daughter in response to the complaint which she described in her statement of evidence (Ex 8 p 3): [daughter] explained that her mother had been in hospital, which we knew, for a bladder infection and she'd been given a range of antibiotics which gave her gastric so she had diarrhoea during the night and when she's got to go, she's got to go. The nurse assisting her to the toilet had, I don't know which trip to the toilet as the nurse had written in the notes 'taken to the toilet x 3, uneventful night' if I recall correctly, so [daughter] said to me sometime during those trips to the toilet that the nurse had become angry and had slapped her mother twice. I said where and she said across the face. And she also complained that she more or less pushed her into bed. She explained that mum always gets into bed on all fours and then rolls over. "She said to me that this nurse had taken her legs and thrown them up onto the bed" is what mum had told the daughter. So she told me all that story. We then started to talk to Mrs B so that I could hear her side and Mrs B agreed with what her daughter asking her that she had been slapped twice, "and she's angry and she's right in my face, and don't you put her back here tonight with me." We asked her through her daughter to describe this nurse and she was quite adamant, she didn't say it once, she probably said two or three times, the same description - "she had this long white hair and a white coat, and don't you put her back here tonight with me, she's very angry" those were her mum's words. She told me several times the same story, that didn't change at all. So then I spoke with the daughter and asked her what she would like to see done and she said "I want this nurse spoken to." 18In cross examination Ms Scott deposed that she concluded that the slap took place in the bathroom area. Her evidence is (TR 14/5/14 pp 68, 69): Q. Did she give you any information in relation to where she said that the incident of slapping occurred? A. Toilet. On the way back from toilet. So that could have been anywhere. Q. Let me take you to, about halfway on the page of page 3 of 6, after that big quote that I've just drawn your attention to. Do you see the question, "In relation to where the slap occurred, did you hear any information at the time where they were standing?" and you say, "I believe it was on one of her trips back from the toilet and I believe it happened in the bathroom area." Do you see that? A. Yes. Q. Are you now saying that despite being told by Mrs B Senior three or four times as to her version of this incident that you don't know where it happened? A. I do. Somewhere in the bathroom area. Q. I take it that the bathroom area is an area which is distinct from Mrs B's bed; is that a fair comment? A. Yes. Q. At no stage during the three or four I'll use the word accounts of the incident, at no stage, did Mrs B communicate to you that it happened while she was in her bed. You agree with that? A. Yes. 19Ms Melinda Macfarlane has been employed at Kempsey Hospital as a registered nurse since 2012. 20Ms Macfarlane deposed that she was not required to do much for Mrs B as her daughter was there a lot of the time. Ms Macfarlane confirmed that Mrs B was difficult to communicate with until her daughter explained to her that she was deaf and that it was necessary to speak loudly and directly to her. Ms Macfarlane made no cognitive assessment of Mrs B. 21Mr Stephen Rodwell deposed that his role was to review information and come to a view of the allegations. 22Mr Rodwell conceded that he had only met Ms Rosten briefly on one occasion. 23Mr Rodwell acknowledged that he accepted the information put to him without independent inquiry. Mr Rodwell accepted that he had not seen the complete medical records having been provided only with the aspects referred to him by the investigators. 24The evidence of Ms Gillian Stubley rebutted assertions that she knew that Mrs B had made complaints about another nurse, or that Mrs B had a problem with blonde haired nurses, or that she had advised nurses to attend to Mrs B in pairs. Ms Stubley refuted an assertion that Nurse Jacqueline Glasgow, who has red hair, was assigned to take over care of Mrs B from Nurse Rhonda Parkes who has blonde hair. 25The evidence of Ms Milu Tom is that she is employed at Kempsey Hospital as a registered nurse. Attached to the statement of Ms Tom (Ex 12) is the record of interview on 25 February 2013 covering the events of the night shift of 18 February 2013. 26Ms Tom was working with Ms Rosten on 18 February 2013. Ms Rosten and Ms Tom arranged that Ms Tom would look after five patients and Ms Rosten would attend to four including Mrs B. 27In the interview Ms Tom provided the following information (Ex 12 p3-5): "Who was allocated to care for Mrs B on this night shift? MT Eveon was. During the night did Nurse Rosten make any reference to Mrs B? MT No she did not make any reference to her. Did you visit Mrs B's room during this night shift? MT Only once I took the rounds of Eveon Rosten's patients as I had five patients and Eveon had four. Most of my patients were awake with toileting and IV fluids running so only at the beginning of the shift I got to take the rounds of the full patients. What did you think of Mrs B's condition when you saw her on that round, her state of orientation? MT She was sleeping. When I was busy with my patients I could hear her call out her daughter's name, [name] she was calling out. That was usually when she wanted to use the toilet. Eveon was helping her with her toileting - I had seen her taking her to the toilet. By calling out the name [name], did you think Mrs B might have been confused? MT No I don't think so. She was very loud. She was calling 'take me to the toilet'. Was this frequent on the shift?. MT Yes it was frequent. Can you describe nurse Rosten's general demure during the shift, how did the nurse appear to you? MT I was mostly busy with my patients and when I saw her she was either in the nurses' station or taking Mrs B to the toilet. Can you describe what you were wearing on this night shift? MT I was wearing the dark blue scrubs. Did it include a white gown? MT No, I had my uniform jacket on. Mrs B was admitted the previous Thursday - Did you provided (sic) care to her previously on any other shift? MT No, because that was after my days off, I think and I had not seen her before. So it is true to say that you never really had anything to do with Mrs B during her admission this time? MT Yes Is there anything else you would like to tell us about the issue today? MT I didn't personally see Eveon hurting her. I came to know about it the next day. I received a call from Robin (Norton) as she saw me in the office area and thought I had come to see her about what happened during the shift. Were you surprised by what happened? MT Yes of course I was very surprised because I never expected such a thing to happen. She was very loud so why did she not call out; she was very loud during the shift. When you say she was very loud you mentioned that she was calling out to [daughter] to go to the toilet, what other things did she call out? MT I had my patients in the kids wing; so most of the time I was far away from Mrs B; when such a thing happened it must have been when I was there in the kids wing or I would have heard her call out as she was very loud." 28Mrs Jenny Rodwell was the lead investigator into allegations against Ms Rosten. 29Mrs Rodwell reviewed clinical records and conducted interviews in company with Ms Robyn Norton. The records of interview and clinical records relied upon are attached to Mrs Rodwell's statement (Ex 13). 30In cross examination Mrs Rodwell confirmed that her role was to provide a report to the Decision Maker, Kathleen Ryan. 31In cross examination Mr Byrnes challenged Mrs Rodwell concerning the absence of any report of the allegations by Ms Brown, who was the first person to whom Mrs B complained on the morning of 19 February 2013. 32Mrs B was examined by Doctor Pennick at 11am on 19 February 2013. The evidence of Mrs Rodwell is that she did not consider a report from the Doctor to be relevant as she was aware that the Doctor reported no injury to Mrs B or complaint by her to him concerning the events of 18 February 2013. 33Doctor Johnston was asked by the co-investigator, Robyn Norton, to undertake a cognitive examination of Mrs B. The report by Doctor Johnston, referred to in the investigation report (Ex 13 Attach E p 8), notes that Mrs B was examined at 9.15am on 20 February 2013 stating: "Does not look obviously demented" 34In cross examination Mrs Rodwell defended the absence of the full report by Dr Johnston which notes that Mrs B was not anxious or complaining as she had settled. 35Mr Mattson examined Ms McPherson on the characteristics and complexity of dementia and delirium. 36In cross examination Ms McPherson concluded that she is not qualified to diagnose dementia and that she had never met or observed Mrs B. 37In re-examination Ms McPherson put that hearing and sight difficulty or traumatic event may trigger delirium. 38Ms McPherson confirmed that she had been given the investigation report (Ex 13 Attach E) prior to preparing her report (Ex 15). 39Ms Christine Brown was interviewed by Mrs Rodwell and Ms Norton on 25 February 2013 and on a second occasion on 28 March 2013. The record of interview of 28 March 2013 is attached to Ms Brown's statement (Ex 16). 40In this interview Ms Brown was asked about Mrs B (Ex 16 Attach A pp2,3): "What did nurse Rosten say about Mrs B during clinical handover? CB Not 100% sure but something like "been a pain in the arse all night". Can you describe nurse Rosten's manner when giving clinical handover and in particular when providing information about Mrs B? CB She was rattling off handover stating that the patient was up all night, loud and needed taking to the toilet 4 or 5 times, calling out every hour, getting out of bed. I am aware of this as I have looked after Mrs B in the past. She is loud when she has no hearing aids in. I told Eveon when her hearing aids are in she can hear everything. CB Eveon was frustrated with the patient. Can you describe Mrs B's cognitive state on this morning? CB She was totally 'with it', effective communication, no confusion. She was like this the day before also. She was only confused the first night of her admission. Can you describe Mrs B's state of wellbeing on this morning? CB Went to sit Mrs B up, put her hearing aids in and glasses on. She stated 'that nurse outa [sic] be put off'. I asked her why and she said that 'she was rough and slapped me twice'. I went and told the RN and Margaret Scott (NUM). I said surely Eveon would not hit you, but she was adamant and told me that same thing all morning. She repeatedly told the same to her daughter. [daughter] came to tell us and was very upset. Daughter was adamant that this occurred. Where did the incident occur? CB She said it occurred in the bed. Pt stated she was roughly put back to bed and slapped across the face twice. How would you describe Mrs B's vision? CB Fine with her glasses on. She could see things in front of her. Whilst providing care to Mrs B, was she able to recognise you? CB Yes On the morning of Tuesday 19th February did Mrs B tell you about any events that occurred during the previous night, if so describe in detail? CB I asked her where the slap occurred. She said she was roughly put back to bed and slapped two times across the face. She was upset and angry and repeated 'that nurse oughta be put off'. When asked what nurse she stated 'that blonde night nurse, the one with the hair all out long'. 41The location of the alleged slap is distinctly different to that provided to Ms Scott, which she deposed (supra) was in the bathroom area. Submissions 42Mr Byrnes submitted that the description given by Mrs B more accurately fits Ms Brown. 43Mr Byrnes was at pains to emphasise that there is no accusation against Ms Brown but the whole event is a delusional experience by Mrs B. 44This leads to a probability that Mrs B could have equally or more accurately been describing the nurse to whom she made the complaint. 45Mr Byrnes submitted that there is a lacuna in the respondent's case in that neither the decision maker nor the complainant were brought to give evidence. Nor were Mrs B or either of her daughters. 46Mr Byrnes noted that though the exclusion of a 96 year old person is understandable, there is no explanation offered for the absence of Mrs B's daughters. 47Mr Byrnes relied upon a 31 page extract (Ex 14) of the medical records of Mrs B (Ex 7) which details episodes of confusion, deteriorating health and intermittent delirium. The extract contains a clinical note (Ex 14 p 13) concerning a previous admittance, recording Mrs B's determination to leave the hospital at 1 am and again at 3 am because her daughter needed a baby cot. This episode was of sufficient concern to staff to have a wardsman in attendance for supervision. 48It is not necessary to list all of the entries, which include acute confusion (p21), an inability to use a knife and fork (p19), and dementia (p23). 49An admission document for Mrs B dated 14 February 2013 (Ex 14 p 26) lists 18 separate medications and describes her as confused, as she thought it was 1996, and pleasant. It is noted (p29) that on 19 February 2013 at 8.30pm Mrs B was disoriented in time, unaware of year, month or day, negating the assertion that the confusion and delirium present on admission had been resolved. 50Clinical notes for 17 February 2013 (Ex 14 p27) record a self-inflected injury to the right forearm resulting in a crescent shaped skin tear 3 cm in length. There is no particular evidence available as to how this occurred beyond a suggestion that Mrs B bumped her arm. 51The capacity for injury from minor events in a 96 year old person is quite understandable and supports a view that if she had been slapped as alleged there would be some evidence of injury. 52Mr Mattson relied upon Minister for Immigration and Citizenship v Li [2012] FCAFC 74 at [17] (Greenwood and Logan JJ); Heydon, Cross on Evidence at [1065] and Re Pochi in Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-7 (Brennan J) to support the acceptance of the hearsay evidence of the allegations without calling Mrs B or her daughters. 53Mr Mattson submitted that a Jones v Dunkel (1959) 101 CLR 298 inference was not available (pars 26, 27 of written submissions): 26. For example, it was not deemed necessary to call the daughters as staff (like EEN Brown and NUM Scott) had heard the complaint direct from Mrs B. It was not necessary to call DON Norton as the lead investigator Mrs Jenny Rodwell has been called and there is evidence from NUM Scott as to the discussion DON Norton had with Mrs B as NUM Scott was present. 27. It was not necessary to call the decision-maker for two reasons (1) the letter of dismissal clearly expresses the reasons for dismissal and (2) the case by and large depends on whether the allegations are made good by the Respondent; there is no dispute if they are made good, then the dismissal was justified. 54Mr Mattson submitted that the principles enunciated in the references had been met (par 21 of written submissions): 21. In this case, the hearsay evidence (when viewed collectively) has the following pertinent features: a. The source is identified as Mrs B; b. The evidence of what happened to Mrs B is sourced from Mrs B herself; c. There is credible evidence to show that Mrs B does not have dementia, was not confused or suffering from other mental illness at the time; d. Mrs B reported the story unsolicited at first opportunity; e. Mrs B told various persons the same story i.e. was consistent in her recount; f. The persons told the story tested Mrs B as to her recollect and they believed Mrs B as genuine and believable in her recollection; g. Mrs B has no reason to lie and the persons recounting the story are disinterested parties so there is no risk of distortion of what they were told. 55Mr Mattson further relied upon in R v Exall (1866) 4 F&F 922 (Pollock CB) to support his submissions (par 23 of written submissions): 23. It is submitted that the following broad strands support the Respondent's case: a. The probative nature of the hearsay evidence including its timeliness and consistency: b. The medical opinions and records that support the genuineness of Mrs B's account; c. The omission in the Applicant's notes of any material supporting any confusion to discredit the probative value of Mrs B's account; and d. The general unreliability of the Applicant's evidence including the lack of evidence to support the Applicant's responses and theories in answer to the allegations. 56Mr Mattson submitted that the evidence of Ms Brown, Ms Macfarlane, Ms Scott and Ms Tom should be accepted as they are all disinterested parties and gave consistent evidence. 57Mr Mattson submitted that there are no procedural issues with the investigation, putting that the investigator, Mrs Rodwell, acted without bias or prejudice. Mr Rodwell investigated Ms Rosten's defence without discovering any evidence to support it. 58Mr Mattson submitted that the denials by Ms Rosten are undermined by her offering a range of theories and excuses to explain away the allegations. 59Mr Mattson submitted that the suggestion from Ms Rosten of dementia, delirium and confusion of Mrs B and a suggestion that the assault occurred the night before, that is 17 February 2013 by Nurse Brown, is totally without credibility. 60Mr Mattson submitted that in considering Mrs B's competence and the probability that she had a delirium experience on the evening of 18 February 2013, the full medical records be taken into account, not just those extracted by Mr Byrnes from Mrs B's Patient Care Plan (Ex 14). 61In his submissions Mr Mattson undertook a detailed examination of the medical records and provided a summary in the following terms (par 45 of written submissions): 45. A few comments about that analysis and review of the records: a. Mrs B had 8 admittances in the last 6 years; b. Mrs B spent about 40 nights in hospital; c. When confusion or delirium was present at the start of her admittance it related to her condition (requiring her admittance) but quickly resolved with often there being no reporting of confusion or delirium in her stay; d. There are four nights out of that 40 where Mrs B had some confusion or disorientation during her stay following her initial admittance; e. Out of those four, the disorientation on 19 February 2013 was due to her distress of the Applicant working that night following the incident. The confusion on 24 and 6 June 2011 related to low sodium and it was noted that Mrs B "usually sleeps well'. The disorientation on 10 April 2007 was when looking for the toilet but otherwise Mrs B was described as "cheerful mood and settled well'; Mrs B was discharged the next day; f. As such, Mrs B usually sleeps well and confusion, disorientation or delirium is not the norm; g. There are no records of confusion, disorientation, delirium or transient nocturnal behaviour being a regular and common feature for Mrs B; h. Rather there are various records of Mrs B being settled, pleasant, alert, orientated and co-operative; and i. There are no records of Mrs B making any complaint about treatment from staff (other than the Applicant). 62Mr Mattson submitted that: "It cannot be assumed that simply because Mrs B has had occasions of confusion or disorientation that that state of mind applies to all occasions." 63Mr Mattson submitted that the evidence does not support a conclusion that Mrs B was suffering from dementia or delirium on the evening of 18 February 2013. 64In support of this submission Mr Mattson put (pars 47-53 of written submissions) 47. The Applicant in her responses has variously observed that the Applicant had dementia or a deficit in cognitive function. The issue of dementia appears to be an issue to explain that Mrs B's recollect of what she said occurred is unreliable. 48. The medical records at Kempsey Hospital on 14 February 2013 stated Mrs B had "moderate dementia". When questioned, the doctor that wrote that said he simply copied the remark from a previous admission. 49. The Applicant wrote on 15 February 2013 that Mrs B had dementia in the Adult Patient Assessment Tool form. When asked how she came to that conclusion in her interview the Applicant said: I don't know. Can't answer that'. In cross examination, the Applicant conceded she just copied that from the records. The Applicant too relied on past notes. 50. Ms Wilma Sims, the Director of Nursing at Mrs. B's nursing home said Mrs.B "definitely does not have dementia". Dr Kurilowich said Mrs. B "does not have a diagnosis of dementia". 51. The family of Mrs. B denies any dementia. NUM Scott was told by (name), Mrs. B's daughter, that Mrs. B did not have dementia. 52. Indeed, the medical evidence is that Mrs. B's consistent reporting of the incident is inconsistent with dementia: "Also the story that Mrs. B had to tell was consistent across multiple telling's which would be quite difficult for someone with a moderate level of dementia." 53. The medical records at Kempsey Hospital state on 20 February 2013 "does not look obviously demented". 65This submission is not accepted. 66There are many clinical notes of dementia in reference to Mrs B, both in recording of the history and diagnosis, in particular a diagnosis by Dr Tim Platt on 10 December 2012 and a question of dementia by Dr Aaron Goldstein (Ex 7 Attach 10-12-12 pp 13 and 16 of 27). 67Mr Mattson referred to the clinical notes for Mrs B for admission on 14 February 2013 to support his submission that whilst Mrs B was disorientated on admission she improved with treatment, leading to a note on 17 February 2013 (Ex 7 Attach 14-12-13 p16) that: "Dtr states memory perfect" 68The clinical note does not provide a time for this observation, however, it is after 0645 and prior to 1400. 69When taken to this Mr Mattson was given further instruction, conceding that the note "Dtr" is a reference to Mrs B's daughter, not a doctor. 70This discloses a capacity for the Respondent to be less than objective in regard to the evidentiary material and a tendency to interpret evidence detrimental to Ms Rosten. 71The fact that Mrs B continued to call for her daughter during the night is suggestive of a functional impairment. 72I do not accept the conclusions advanced by Mr Mattson. 73There is evidence of surprise that Ms Rosten was accused of mistreating Mrs B, which supports a finding that such action as she is accused of is out of character. There is nothing in Ms Rosten's ten year employment record to suggest otherwise. 74Mr Mattson's submission that Ms Rosten offered too many alternatives for her evidence to be believed is not accepted. 75In my opinion Ms Rosten was cornered by the accusation and asked to explain. Ms Rosten was not obliged to go beyond denial. She fell into the trap of trying to explain the inexplicable. 76Ms Rosten's suggestions that Mrs B identified the wrong nurse, it could have been someone else on another shift, Mrs B has problems with blonde nurses and NUM Stubley had advised assisting her in pairs rather than alone, all lacked substance and were not pressed by Mr Byrnes in these proceedings. 77None of this assists an objective consideration of the available facts to determine whether Ms Rosten is guilty of the misconduct alleged or whether Mrs B had a delusional experience. 78The case against Ms Rosten is weakened by failure to call the decision maker, and failure to call Mrs B's daughter. 79In cross examination of Mr Rodwell it was established that the material put to him from the investigator did not include the medical history of intermittent but recurring confusion, dementia and delusion experienced by Mrs B from time to time. 80Mr Rodwell acknowledged that he did not have this information and did not give consideration to the possibility that Mrs B experienced some delusion on the night of 18 February 2013. 81The evidence of Ms Tom is that Mrs B was loud on the night. This opens room for the view that had Mrs B been slapped or roughly treated, she would have reacted in a clearly audible manner. Such a possibility must be given equal probability that the events were a product of delusion during a difficult night for Mrs B and Ms Rosten. 82The absence of any sign of injury to Mrs B when examined by Dr Pennick the next morning supports the consideration that Mrs B was not slapped. 83The fact that Ms Rosten referred to Mrs B as a "pain" or "pain in the arse" during the night of 18 February 2013 cannot be taken as evidence that she was frustrated and angry with her. A more probable conclusion is that Ms Rosten was informing the nurse coming on shift that Mrs B had experienced a difficult and unpleasant night. 84I do not accept that this reference to Mrs B in venting to a colleague is referring to Mrs B in derogatory terms such as to constitute misconduct. Whatever was said, and there is some doubt about the exact term, it was a private communication. 85There is no doubt that Mrs B had experienced a difficult night and that Ms Rosten provided care. 86It is not an offence to privately vent to a colleague, more a necessary coping action. 87It is more likely, in my opinion, that had Ms Rosten lost her temper with Mrs B and slapped her, she would not be making a point of drawing the difficult evening to attention. 88In cross examination Ms Brown was quizzed as to whether Ms Rosten referred to Mrs B as a "pain" or as "a pain in the arse". 89There is no evidence of the standard of language and communication between colleagues at Kempsey Hospital, however, it would seem that management's view of the facts were coloured by the embellishment, which Ms Rosten denies. Conclusion 90The test to be applied is the balance of probability; see Briginshaw v Briginshaw (1938) 60 CLR 336. 91The absence of any sign of injury to Mrs B, the lack of complaint by her to the examining doctor, the continual calling for her daughter through the night, the propensity to delusional experiences, the absence of any reaction by Mrs B to the alleged slap, the inherent unlikelihood that if a nurse lost her temper she would slap an aged patient twice in the same manner, the uncertainty of time and location of the alleged offence, all lead me to the conclusion that the probability of assault on Mrs B is not supported by the evidence in this matter. 92I determine that the termination of employment of Ms Rosten is harsh, unreasonable and unjust and order reinstatement with no loss of wages or continuity of service. 93I make the following orders: ORDERS (1)Pursuant to section 89 (1) of the Industrial Relations Act 1996 Mid North Coast Local Health District is ordered to reinstate Ms Eveon Rosten to her former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision. (2)Pursuant to section 89 (3) of the Industrial Relations Act 1996 Mid North Coast Local Health District is ordered to pay to Ms Eveon Rosten the remuneration she would, but for being dismissed, have received before being reinstated in accordance with the order. (3)Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Ms Eveon Rosten by Mid North Coast Local Health District is taken not to have been broken by the dismissal. I so order. R W Harrison Deputy President 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: 12 June 2014