Industrial Relations Commission New South Wales Medium Neutral Citation: Richie Robles v Health Secretary in respect of Western Sydney Local Health District (No. 2) [2019] NSWIRComm 1051 Hearing dates: 11 and 12 July 2019 Date of orders: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application is dismissed Catchwords: UNFAIR DISMISSAL – employee was registered nurse in mental health facility – failure to comply with employer's policies and procedures – attempt to mislead employer – failure to accept responsibility – dismissal not harsh, unreasonable or unjust Legislation Cited: Industrial Relations Act 1996 (NSW) ss 84, 88 Cases Cited: A v Local Health District [2017] NSWIRComm 1079 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Richie Robles v Health Secretary in respect of Western Sydney Local Health District [2019] NSWIRComm 1028 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: Richie Robles (Applicant) Health Secretary in respect of Western Sydney Local Health District (Respondent) Representation: J Cheetham (Applicant) D Gardner (Respondent) File Number(s): 2019/24081 EX TEMPORE Judgment 1. This is an unfair dismissal application brought by Mr Richie Robles, pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). The claim is brought against the Health Secretary in respect of Western Sydney Local Health District ("WSLHD"). 2. The hearing of the application took place on 11 and 12 July 2019. Mr Robles was represented by Mr J Cheetham, who is not a legal practitioner. The respondent was represented by Mr D Gardner, a solicitor. 3. As Mr Cheetham is not legally qualified, I took particular care during the hearing to ensure that he had every opportunity to put the case for Mr Robles. This included providing some assistance to him to formally tender into evidence the documents on which Mr Robles sought to rely and accepting that evidence (subject to weight), over objections raised by Mr Gardner. I also took a reasonably active approach during Mr Robles' cross-examination, to ensure that I understood his evidence properly. I acknowledge that Mr Gardner raised no objections to the approach adopted by the Commission. 4. I am satisfied that Mr Robles has had every opportunity to put his case to the Commission. 5. Mr Robles read two statements he had prepared, dated 23 May 2019 and 25 June 2019. It must be said that the documents comprised a combination of evidence and submissions. 6. The respondent read affidavits of: 1. Ms Beth Kotzé dated 20 June 2019. Ms Kotzé is the Executive Director of Mental Health within the WSLHD; and 2. Ms Danielle Levis dated 29 June 2019. Ms Levis is the Acting Executive Director of Nursing and Midwifery and Clinical Governance at the WSLHD. 1. The respondent also tendered into evidence a number of separate documents, which it is not necessary to separately identify. The respondent relied also on fairly detailed written submissions, which I have read closely. Background 1. Mr Robles was employed by the respondent as a registered nurse. He had been employed within the WSLHD for approximately 11 years in total. At the time of his dismissal he was employed at Bungarribee House, a mental health facility at Blacktown, New South Wales, which falls under the auspices of the WSLHD. He had been employed at Bungarribee House for approximately eight years. 2. In so far as it is relevant for present purposes, Bungarribee House has two wards, which were described generally in these proceedings as acute and sub-acute. There was a nurses' station positioned, as I understand it, between those two wards. Both of those nurses' stations provided line of sight and access to the respective wards. As this case predominantly relates to the acute ward, it is enough to concentrate on that side of the nurses' station. 3. It was described to me that the nurses' station looks out across a common area, with glass going all the way up to perhaps 30 centimetres or a foot below the ceiling level. Behind the nurses' station appears to have been a work station which team leaders used for performing their duties during the course of their shift. Access between the nurses' station and the team leader's desk was through a door, which was in close proximity to the desk. 4. Mr Robles was rostered to work at Bungarribee House on the night shift which traversed 5 and 6 December 2017. He was rostered on that evening as the team leader. I note that during the hearing different nomenclature was used, such as, "nurse in charge" or "shift co-ordinator". For present purposes, I propose to adopt the term "team leader", as that is the one that was used most by the parties during the course of the proceedings. 5. During the night, at approximately 12.05am on 6 December 2017, a patient on the acute ward attempted to strangle herself with a cord attached to a public telephone located in the common area ("Incident"). While it is, to some extent, a matter of conjecture, it appears the patient entered the common area, moved a chair so as to screen her actions from the nurses' station and then attempted to strangle herself. Thankfully, the attempt at suicide failed, when one of the other nurses on duty, Evangeline De Leon, saw what had happened and raised the alarm. 6. As would be expected, the Incident was the subject of an investigation by the WSLHD. At the request of the Nurse Unit Manager, Nicolle Murray, Mr Robles wrote an email on 20 December 2017, setting out his recollection of events. 7. On 14 June 2018, Mr Robles was interviewed by Ms Claire Alder who had been appointed by the WSLHD to conduct an independent investigation into the Incident. The transcript of that interview was tendered into evidence. 8. It is necessary to digress briefly, at this point, to address an evidentiary matter that arose during the course of the hearing. It was Mr Robles' evidence, and I do not think it was controverted, that when he was first advised of the need to be interviewed by Ms Alder, he was informed that the interview was to discuss an incident which had occurred in February 2018. He deposed that when he attended a meeting with Ms Alder on 13 June 2018, he did so on the mistaken understanding that it was the February 2018 incident which was to be the subject of discussion and not the Incident. On this basis, the interview with Ms Alder was pushed back a day to 14 June 2018. 9. It became clear during Mr Robles' evidence under cross-examination, however, that this version of events was quite incorrect. Ms Alder had in fact written to him on 11 June 2018, clearly explaining the purpose of the meeting and attaching a significant amount of documentation relevant to the investigation that she was conducting. This is an example, and not the only example in the proceedings, where Mr Robles appears to have been less than candid in his evidence to the Commission. This does not reflect well on his credibility. 10. In any event, on 17 July 2018, Ms Claire Lorenzen, the Executive Manager, Mental Health at the WSLHD, wrote to Mr Robles setting out "Allegations concerning your professional conduct" connected with the Incident. The letter contained two allegations, the first containing four "examples", against Mr Robles. 11. On 3 August 2018, Mr Robles wrote to Ms Alder, providing what he described as his "formal statement" in apparent response to Ms Lorenzen's letter of 17 July 2018. 12. At some point after that letter, Ms Alder completed her investigation into the Incident and provided her report to the WSLHD. An extract of the report appears as one of the attachments to Mr Robles' statement of 23 May 2019. The entire report does not appear to be in evidence. 13. On 1 November 2018, Dr Kotzé wrote to Mr Robles a letter which was titled "Preliminary Investigation Outcome and Show Cause". That letter repeated the allegations against Mr Robles which had been contained in the letter from Ms Lorenzen of 17 July 2018. It is convenient to set them out as follows: "1. That you breached cl 4.3 of the NSW Health Code of Conduct PD2015_049 and the WSLHD policy 'Mental Health Levels of Observation' (which was in force at the time of the incident) by not carrying out patient observations as per the WSLHD policy 'Mental Health Levels of Observation' (which was in force at the time of the incident). Examples of this include: (a) falsifying the Handover Checklist Allocation Sheet with an intent to mislead, by completing the Checklist after the critical incident on 6 December – with it not being in existence at the start of the nightshift; (b) completing the Handover Checklist Allocation Sheet with inaccurate information, with it not reflecting the correct patient allocations; (c) despite it being the Team Leader/Shift Coordinator's responsibility to allocate specific patients to the nurses on the nightshift, on 5 and 6 December 2017, it appears that Evangeline De Leon was given responsibility for conducting all of the observations on all 15 patients on the acute side whilst Ramon Samson dealt with other matters on the unit. This is contrary to the Patient Allocation Collaborative Care Model that was launched in 2017 to address the issues around task allocation rather than patient centred care; (d) that despite your responsibilities as Team Leader, when Ramon Sampson informed you that he was leaving the acute aside to get blankets, you failed to ensure the appropriate staffing levels were met by adequately covering the acute side in his absence. 2. That you breached cl 4.3 of the NSW Health Code of Conduct PD2015_049 by conspiring with Evangeline De Leon and Ramon Sampson to cover up the facts and mislead any investigation in that you all 'called each other after the incident and agreed that Evangeline would say that she was sitting in the acute area nurses station when you knew that was not true as there was no one in the acute area at the time of the incident'." (Sic, emphasis in original) ("Allegations") 1. In her letter, Dr Kotzé informed Mr Robles that she had made a preliminary determination that a recommendation be made to the Chief Executive that his employment be terminated. Dr Kotzé invited Mr Robles to provide a written reply to the report and to the preliminary determination and recommendation. 2. On 16 November 2018, Mr Robles responded to Dr Kotzé's letter. 3. I have previously determined, in Richie Robles v Health Secretary in respect of Western Sydney Local Health District [2019] NSWIRComm 1028, that Mr Robles' employment was terminated during a conversation he had with Ms Kristin Adair, the Human Resources/Workforce Manager, Mental Health, for the WSLHD, on 27 November 2018. Nursing and Midwifery Council 1. On 18 October 2018 Ms Caroline McSherry, the Acting Director of Nursing, Mental Health Service for the WSLHD, wrote to the Nursing and Midwifery Council of New South Wales ("Council") to report "notifiable conduct", arising out of the Allegations. From the documentation the Council appears to have conducted a hearing into that notification on 17 December 2018. In a decision dated 19 December 2018, the Council expressed the following conclusions: "43. Having regard to our assessment of the information and evidence relevant to the above issues, we conclude that Mr Robles' practice does pose a risk to public health and safety, which requires us to take action, because of the following risk factors: • Mr Robles has not been proactive about acknowledging his professional accountability and responsibilities as a RN, particularly when acting as Team Leader and • Mr Robles had not demonstrated that he understands and accepts his professional obligation and responsibility to ensure his own continuing professional development and learning, particularly when changing his scope of practice • We remain concerned about Mr Robles' current practice as he has not been proactive in ensuring he now understands the patient centred care model, nor did he give us confidence that, if confronted with the same situation again, he would respond appropriately • We have concerns regarding Mr Robles' awareness of current policy and his responsibilities as a Team Leader and a Registered Nurse • We are concerned that Mr Robles' practice appears to be task-oriented and lacking in critical thinking skills. As a result of this he may not have the personal resources, and professional confidence, to resist pressures of other staff to follow the local 'culture', rather than policy. 44. We are also of the view that this risk can be addressed by the imposition of conditions." 1. Having made these conclusions the Council imposed a number of conditions on Mr Robles' registration. It is not necessary that I repeat all of those conditions. 2. Under cross-examination Mr Robles stated that he had taken some steps to address those conditions. The evidence included an extract that appears to have been taken from the website of the Australian Health Practitioner Regulation Agency, which describes Mr Robles' registration as having been due for expiry on 31 May 2019. While Mr Robles gave evidence that he had applied to renew his registration, his status as a registered nurse remains quite unclear. Legal Principles 1. This matter is brought under s 84 of the Act, which relevantly provides as follows: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 1. Section 88 of the Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. To be entitled to any remedy under the Act the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. It is now well accepted that each of the words "harsh, unreasonable or unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32]. 2. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." Consideration 1. It is convenient to consider the matter initially by reference to the particular Allegations made against Mr Robles, which it is asserted by the respondent justified the termination of his employment. 2. In her affidavit, Ms Levis deposed as follows: "43. As a Team Leader on the night of the Incident, Mr Robles had many responsibilities, which I will now outline. 44. As a person working in NSW Health, Mr Robles was required to comply with NSW Health's policy titled NSW Health Code of Conduct PD2015_049 applied to Mr Robles's employment… 45. As a Registered Nurse, Mr Robles was required to comply with the Registered Nurses Standards for Practice… 46. As a Team Leader, Mr Robles was required to comply with the LHD's policy titled Team Leader's responsibilities, duties and expectations… (Team Leader's Responsibilities). 47. The Team Leader's Responsibilities state: 'When there is not a NUM on duty the Team Leader assumes full responsibility for the unit during the period of the shift. The Team Leader's responsibilities/duties encompass clinical and management domains hence extend to those nursing staff on duty and the unit patient population. The responsibilities/duties aim to guide the Team Leader to perform this role. … CLINICAL RESPONSIBILITIES/DUTIES … • Provide a comprehensive clinical handover… • Coordinate care • Ensure safe care is provided in accordance with the local policy and procedures • Allocate staffing according to the unit model of allocation… • Allocate responsibility for conducting mandatory checks for the unit… • Allocate duties at the beginning and during the shift as required. Consider staffs professional scope of practice and competency of clinical practice… • Ensure that the patients are supervised by staff at all times. • Ensure the professional conduct and direction of staff is maintained • Provide clinical leadership and role modelling to the staff on the shift and always display professional behaviours' 48. As a Team Leader on the night of the Incident, Mr Robles was required to comply with the LHD's policy titled Mental Health Levels of Observation WSYD-POL202181… 49. As part of the LHD's specialist mental health workforce, Mr Robles was required to comply with NSW Health's policy titled Clinical Care of People Who May Be Suicidal PD2016_007… 50. As a Team Leader on the night of the Incident, Mr Robles was covered by the LHD's policy titled Shift to Shift Clinical Handover for Nursing and Midwifery – WSYD-PROC202291…" 1. That evidence was not controverted. 2. The Allegations, at a high level, alleged a breach by Mr Robles of clause 4.3 of the New South Wales Health Code of Conduct PD2015_049 ("Code of Conduct") and the WSLHD Policy "Mental Health Levels of Observation". 3. Attention was focused during the hearing on the examples offered as evidencing those breaches. The first two of those examples are related. The allegation is that Mr Robles falsified a document titled "Handover Checklist Allocation Sheet", with an intention to mislead, by completing the checklist after the Incident, with it not being in existence at the start of the night shift, and by completing the "Handover Checklist Allocation Sheet" with inaccurate information, with it not reflecting the correct patient allocations. 4. To some extent there is no real contest around these allegations. Mr Robles does not deny that on the night of 5 December 2017, he assigned two nurses, Evangeline De Leon and Ramon Sampson, to the acute ward and left it to them to decide how tasks and responsibilities were to be shared. It was only after the Incident that he filled out a document purporting to note the allocation of patients to nurses. 5. While there was some debate during the hearing as to the proper name of the document and whether the Allegations made reference to a document which did not exist, it seemed common ground at the end of the hearing that the relevant documentation, whatever the name, was that which is annexure E to Mr Robles' statement of 23 May 2019. For ease of reference I will refer to it simply as the "Patient Allocation Form". 6. The significance of the Patient Allocation Form comes from a document titled "Patient Allocation Collaborative Care Model". That document requires that patients be allocated to nurses at the start of each shift. Ms Alder's investigation found that the Patient Allocation Form had not been completed at the start of the shift but, as admitted by Mr Robles during his interview with Ms Alder, only after the Incident. Ms Alder also found that the allocation of patients to nurses was incorrect, in that in at least five instances, patients in the sub-acute ward were allocated to the nurses who were only stationed that night on the acute ward. That fact does not appear to have been controverted in the evidence. 7. To that extent, as I say, the factual underpinning of the Allegations is not seriously in doubt. 8. Mr Robles' approach to these allegations was fundamentally to challenge the extent to which he should be held culpable for a failure to comply with the Collaborative Care Model. 9. Before turning to address the issues which arise, I note that in A v Local Health District [2017] NSWIRComm 1079 Commissioner Stanton made the following observations: "167. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employees may also be subject to obligations that require them to conduct themselves in the workplace in a particular way or to meet particular standards or observe particular constraints. For these reasons, it is entirely reasonable and often necessary, for employers to put in place policies requiring mandatory compliance at all times. However, policies need to be clearly articulated to staff". 1. In the context of those observations it is worth reiterating that Mr Robles was a registered nurse in a mental health care facility, attending to the needs of, amongst others, those with acute mental health needs. 2. It is entirely reasonable, and indeed, unexceptional, for an organisation such as the WSLHD not only to have policies and procedures for the management and care of patients, but to insist on strict compliance with those policies and procedures by their employees. 3. Mr Robles sought to convince the Commission in the first instance that he was not aware of the Collaborative Care Model. That simply cannot be accepted on the evidence. The documents relied on by the respondent clearly show that Mr Robles received emails and was present at a staff meeting where the Collaborative Care Model would have been brought to his attention. His claim that he did not always read his emails, or that he could not recall the meeting at which the Collaborative Care Model had been discussed, stretches credibility. 4. Further, after the Incident, Mr Robles knew to fill out the Patient Allocation Form. There is no suggestion, much less evidence, that the existence of the form was only at that time brought to Mr Robles' attention, or that it was only at that time that he was made aware of the need to fill it out. The fact that he knew that it was a requirement that the Patient Allocation Form be completed, and that he expressed that to his co-workers at the time, clearly suggests that it was a requirement which had not been complied with. 5. It must follow that completing the Patient Allocation Form after the Incident, so as to create the impression of compliance with the Collaborative Care Model, can only have been done with an intention to mislead the WSLHD. 6. Mr Robles next argued that, whatever the Collaborative Care Model may have required, it was contrary to the culture or practice at the workplace, which he asserted was consistent with that he had adopted, namely, simply allocating registered nurses to either the acute or sub-acute wards and leaving it to them to divide the particular responsibilities between them. 7. The evidence of Dr Kotzé and Ms Levis was that the Collaborative Care Model applied, and that whatever may have been the practice prior to the introduction of that model, that is the procedure that should have been applied from that time on. 8. That is assuming that there was indeed the culture or practice which Mr Robles asserts. In this regard, it is to be observed that he has called no corroborative evidence from former co-workers to demonstrate that their understanding of the system of work is as he described. 9. Mr Robles next argued that management had not done enough to promulgate the Collaborative Care Model or to police the extent to which it was being complied with, for example, by conducting audits to ensure compliance. 10. I find that Mr Robles was aware, or ought to be taken to have been aware, of the Collaborative Care Model on 5 and 6 December 2017. On that basis, I do not accept the submissions by Mr Robles that more should have been done by management to promulgate the policy. 11. In any event, the submission is unfortunately representative of the way in which Mr Robles has framed his case, that is, by seeking to divert attention from his own behaviour by pointing to the alleged failings of others, or, in some instances, placing the blame directly on others. I will return to this. 12. Finally on this point, Mr Robles submitted that the Commission should consider that the Collaborative Care Model was not indeed in force, as it had not been signed by any of the people for whom the document made provision to sign. 13. There is no evidence before the Commission that the applicability or enforceability of a policy of WSLHD is conditional upon the relevant signatures being on the document. Further, the evidence of the respondent's witnesses was clearly that, as far as they were concerned, the policy had well and truly been introduced and applied in the workplace by 5 and 6 December 2017. Under cross-examination, Dr Kotzé offered the evidence, which I will paraphrase, that just because a document is not signed does not mean it does not exist. 14. The next example given in the Allegation was that, despite it being the team leader's responsibility to allocate specific patients to the nurses on the night shift, on 5 and 6 December 2017 it appeared that Evangeline De Leon was given responsibility for conducting all of the observations on all 15 patients on the acute side, whilst Ramon Samson dealt with other matters on the unit. This was also said to be contrary to the Collaborative Care Model. 15. Again, there did not seem to be any particular challenge by Mr Robles to the facts underpinning that allegation. It is indeed consistent with what he told Ms Alder, the investigator, that he would leave it to two registered nurses, in the form of Ms De Leon and Mr Samson, to decide between themselves how tasks were to be allocated. The transcript suggests that he believed that Ms De Leon was happy to do observations on all of the 15 patients. Under cross-examination, Mr Robles made the observation that both Ms De Leon and Mr Samson are experienced registered nurses, and he would not, to use his words, "micro-manage them". 16. Whether or not Ms De Leon and Mr Samson were experienced registered nurses, and indeed, whether or not they had more experience than Mr Robles, does not overcome the requirement to comply with the Collaborative Care Model and any other relevant policies and procedures that applied at the time. 17. The effect of the argument raised by Mr Robles in this respect is tantamount to leaving it to employees to decide generally, based on their own experience, which of an employer's policies should or should not apply in a particular case. That way lies anarchy. 18. The fourth example of the Allegation against Mr Robles is that, despite his responsibilities as team leader, when Mr Samson informed him that he was leaving the acute side to get blankets, he, that is, Mr Robles, failed to ensure the appropriate staffing levels were met by adequately covering the acute side in his absence. 19. The evidence satisfies me that it was a requirement that during the night shift two staff members be on duty in the acute ward at any given time. Mr Robles gave evidence that from at least 11.30pm until the time of the Incident at 12.05am, he was situated only at the team leader's desk, at some slight remove from the nurses' station in the acute ward. 20. It is not disputed that Mr Robles was aware that Mr Samson left the acute ward to collect blankets. Indeed, the evidence would suggest that he did so twice during the course of the shift. 21. Mr Robles gave evidence that he believes that he heard Ms De Leon working in the nurses' station throughout this time, although there is some doubt on the evidence as to whether she was in fact in the nurses' station throughout that period. It is certainly the case that Mr Robles himself, until he was called out by Ms De Leon, having found the patient, did not go into the nurses' station himself. 22. Ms Alder found that Mr Robles appeared to have made assumptions as to staff coverage in the acute ward, but did not proactively ensure that the ward was adequately staffed at all times. I agree with those findings. 23. In this regard, I digress to note that the evidence would suggest that the telephone at which the patient attempted to strangle herself was in clear line of sight with the nurses' station. It might reasonably be inferred that if the nurses' station had in fact been staffed immediately prior to the Incident, the nurse would have seen the patient entering the common room and moving a chair so as to block visibility to that nurses' station. 24. Having said that, I note that it is not suggested by the WSLHD as part of its case that Mr Robles himself is responsible for the Incident. 25. Having considered the totality of the evidence, and in particular having observed Mr Robles in the witness box, I find that the Allegations have been substantiated. 26. I am satisfied further that the Allegations were clearly outlined to Mr Robles and that he had, over a considerable period of time, ample opportunity to respond to them or to make out a defence. 27. This is demonstrated by the history of the matter outlined earlier, which included his interview with Ms Alder on 14 June 2018, the letter of 17 July 2018 setting out the allegations against him, his response, which he described as a "formal statement" of 3 August 2018, the show cause letter from Dr Kotzé of 1 November 2018 and Mr Robles' response on 16 November 2018. 28. At [68]-[77] of her affidavit, Ms Levis set out what she regarded as the "failings" of Mr Robles on the night of the Incident by reference to the various policies referred to in the extract from her affidavit reproduced above. I am satisfied that the evidence supports those conclusions, although I note that they go beyond the matters which were alleged against Mr Robles and which were stated to form the basis of his dismissal. 29. I do accept, however, that Mr Robles breached clause 4.3 of the Code of Conduct and the policy titled "Mental Health Levels of Observation". 30. I do not accept Mr Robles' submission that the way in which the Allegations were framed required a finding by this Commission that he had breached all of the subclauses of clause 4.3 of the Code of Conduct. The subclauses identified by Ms Levis in her evidence are enough to establish a breach of clause 4.3. 31. I acknowledge Mr Robles' submissions that the Code of Conduct allowed for the respondent to take action short of dismissal. However, it is true of every dismissal that termination is only one option available to an employer. It will always be in the employer's discretion as to whether, in any given case, it will impose the sanction of dismissal. The question here is, with the respondent having taken the decision to dismiss Mr Robles, whether that dismissal was harsh, unreasonable or unjust. 32. It has to be said that the evidence discloses a marked lack of self‑awareness, contrition, remorse or acknowledgement of wrongdoing on the part of Mr Robles. Indeed, it was only in closing submissions was it conceded by Mr Cheetham that Mr Robles "may have made mistakes", and that he was not perfect. In every other document before this Commission, and in his testimony before this Commission, Mr Robles did not concede that he had made mistakes. 33. Throughout the evidence, Mr Robles blamed management for having breached its own requirements. Whether that was through allowing a public telephone to be stationed in the common area, through the promulgation of the Collaborative Care Model, or in a number of other respects, Mr Robles seemed to be trying to divert attention away from his own failings, rather than face up to them. 34. The respondent submitted, and I accept, that a person with Mr Robles' considerable experience and qualifications should know better. 35. I recognise that there is very much a live issue between the parties as to whether the phone should have been in the common area or not. Ultimately, it is an interesting question, but one which is not relevant to the consideration here. The Allegations, as I have previously said, do not go to causation of the Incident, but to whether Mr Robles was guilty of the conduct alleged in the Allegations. 36. While it is a good question, which to some extent Dr Kotzé explained in her evidence, whether there should or should not have been a public telephone in the common area, it seems to be another example of attention being focused on the alleged wrongdoing of others in an apparent attempt to divert attention away from Mr Robles' own failings. 37. For the sake of completeness I observe that Mr Cheetham, in some respects indirectly, made submissions in relation to the fact that at Bungarribee House, team leaders were not appointed, but only performed those roles sporadically. While the submission was not elaborated upon by Mr Cheetham, the implication seems to be that when someone performs the role of team leader only sporadically they should perhaps not be held to the same high standard of someone who performs it on a daily basis. 38. My recollection of Mr Robles' evidence under cross-examination was that he understood full well the obligations of a team leader, and acknowledged, in response to questions, various documents and policies that applied that imposed particular obligations on him as a team leader. Perhaps the one exception to that statement is Mr Robles' willingness to accept that as a team leader he had some responsibility or accountability for the staff under his supervision. Conclusions 1. I am satisfied that the Allegations made by WSLHD against Mr Robles were legitimate and based on cogent evidence. I am also satisfied that the Allegations were properly sustained on the evidence by the WSLHD. They provided a proper basis for the termination of Mr Robles' employment. The WSLHD undertook a careful and considered process which gave Mr Robles every reasonable opportunity to respond to, or defend himself against the allegations being made against him. 2. For these reasons I find that the dismissal was neither unreasonable nor unjust. 3. On the question of harshness, Mr Robles relied predominantly on the length of his employment with the WSLHD and the impact of the dismissal on his ability to remain a registered nurse. 4. Against these considerations is the fact that as a registered nurse of Mr Robles' experience and qualifications, he should be aware of the need to comply with procedures, particularly in the context of an acute care mental health facility. Moreover, he should recognise that tragedies like the Incident provide an opportunity for reflection and improvement at both a personal and organisational level. 5. Unfortunately for him, Mr Robles appears to have adopted from the outset an approach of obfuscation, denial and blame shifting. This continued into these proceedings, in a manner which, regrettably, undermined his credibility. 6. I find that Mr Robles has not discharged his onus to persuade the Commission that his dismissal was harsh, unreasonable or unjust. Order 1. I order that the application be dismissed. Damian Sloan Commissioner ********** 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: 01 August 2019