Federal Court of Australia
Han v St Basil’s Homes [2023] FCA 1010
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth), because she had exercised her workplace right as an employee to make a complaint or inquiry in relation to her employment.
2. It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 351(1) of the Act, because of her race.
3. On or before 1 September 2023, the parties confer and file draft agreed orders or, in the event of disagreement, her and its draft orders providing for:
(a) the applicant to file and serve points of claim and evidence in support of:
(i) any compensation for any loss she claims under s 545(2)(b) to have suffered because of the contraventions declared in order 1 and 2 above;
(ii) any claim for reinstatement; and
(iii) any pecuniary penalty she seeks in respect of the contraventions;
(b) the respondent to file and serve any points of defence and evidence in response;
(c) written submissions:
(i) by the applicant limited to 5 pages;
(ii) by the respondent limited to 5 pages; and
(iii) by the applicant in reply limited to 2 pages; and
(d) an estimate of the length of the balance of the hearing in respect of this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RARES J:
Introduction
1 At the time of the summary termination of her employment on 23 January 2020, Wei Han, also known by her Anglicised name, Casey, had worked for over nine years in her profession as a registered nurse on a permanent part time basis for St Basil’s Homes at their Lakemba aged care facility in Sydney.
2 Ms Han, who represented herself in the proceeding, alleged that St Basil’s contravened the Fair Work Act 2009 (Cth) by taking adverse action against her twice, first, when St Basil’s wrote a letter to Ms Han on 10 September 2019 giving her a first and final warning (the warning) and, secondly, by terminating her employment on 23 January 2020 (the termination). She alleged that St Basil’s took each alleged adverse action because of one or both of the reasons that:
(a) she had exercised her workplace right to make a complaint or inquiry in relation to her employment in contravention of s 340(1)(a); and
(b) her (Chinese) race, in contravention of s 351(1).
3 Ms Han claimed orders for her reinstatement, compensation for loss of income, pain and suffering and for the imposition of pecuniary penalties under ss 545(1), (2) and 546 of the Act.
4 Many of the registered nurses, assistants in nursing (or AINs), recreational activity officers (or RAOs), other staff and a general manager at the Lakemba facility, Meriem Mota, with whom Ms Han worked at St Basil’s Lakemba, were Filipinos, some of whom, like her, also did not have English as their first language.
5 In her statement of claim, Ms Han alleged that, from June 2019, she had raised a number of complaints about the close relationship between her Filipino co-workers and their discriminatory and bullying conduct toward her because she was Chinese. Her complaints raised issues about her being overworked, unsupported, bullied and discriminated against in the workplace and that other employees had not provided appropriate care to residents in circumstances that Ms Han described. She alleged that, instead of investigating those complaints, St Basil’s took adverse action by, first, disciplining her (by giving her the warning), secondly, after she had made her complaints in her emails of 1 and 24 December 2019, terminating her employment and, thirdly, making a complaint about her to the Australian Health Practitioner Regulation Agency (AHPRA) and the Nursing and Midwifery Council of New South Wales.
6 On 6 December 2020, the first day of the hearing, I ordered that all issues relating to St Basil’s liability be heard and determined before issues relating to penalty, compensation and or damages.
7 The trial posed difficulties on both sides. Ms Han did not comply with an order that I had made on 10 September 2021 to serve outlines of evidence of any witness on whom she proposed to rely by 23 September 2021. Immediately before the trial began, Ms Han provided St Basil’s with an extensive bundle of paginated documents on which she sought to rely. The bundle was interleaved with statements by her about matters related to one or a group of nearby documents. She was assisted at the bar table by her partner, Matthew Cosgrove, during the trial.
8 At the outset of the trial, counsel for St Basil’s sought to ensure that the issues were clarified. Ms Han acknowledged that her claim for the trial was confined to the two instances of adverse action to which I have referred, namely the issue of the warning letter and her termination. Counsel for St Basil’s recognised the difficulties for his client, Ms Han and myself that Ms Han’s unfamiliarity with the rules of evidence and court procedure created. He sought properly to assist the Court and to protect St Basil’s interests while, very fairly, allowing Ms Han a considerable degree of latitude in presenting her case.
The legislative scheme
9 Relevantly, Ch 3 of the Act provided in Div 3, headed ‘Workplace Rights’:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
…
Note: This subsection is a civil remedy provision (see Part 4-1).
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
(emphasis added)
10 The table in s 342(1) set out “circumstances in which a person takes adverse action against another person” (original emphasis). Item 1 in that table provided that adverse action was taken by an employer against an employee if the employer dismissed him or her, injured him or her in his or her employment, altered his or her position to his or her prejudice or discriminated between him or her and other employees.
11 Division 5 in Ch 3, headed ‘Other protections’, commenced with s 351 which relevantly provided:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(emphasis added)
12 Division 7 contained ancillary rules for the application of the provisions of Ch 3 of the Act, including:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(emphasis added)
13 In addition, s 793(2) provided that if, for the purposes of the Act, it is necessary to establish the state of mind of a body corporate, including a person’s knowledge, intention, opinion, belief or purpose and reasons for any such intention, opinion, belief or purpose (see s 793(3)) it is enough to show that, first, the conduct was engaged in by an employee of the body corporate within the scope of his or her actual or apparent authority and, secondly, that employee had the relevant state of mind.
Legal principles
14 In order to engage the presumption in s 361(1), an applicant must plead in the originating application, statement of claim or some other document the particular reason or intention for which he or she alleges that the respondent took the adverse action complained of in the proceeding. That pleading must make clear what the case is about and include the identification of that particular proscribed reason or intention: Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239 at 282 [140] per Bromberg, Kerr and Wheelahan JJ.
15 In order to be a workplace right within the meaning of s 341(1)(c), an employee must have the ability, founded on a source of entitlement (whether instrumental or otherwise), to make a complaint or inquiry in relation to his or her employment: Alam v National Australia Bank Ltd (2021) 288 FCR 301 at 331–332 [97] per White, O’Callaghan and Colvin JJ applying (at 288 FCR 325 [74]–[76]) Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 at 298 [33] per Collier J as approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at 56 [28] per Greenwood, Logan and Derrington JJ.
16 The central issue under Pt 3-1 of the Fair Work Act in the determination of a claim that a person has taken adverse action against another person in contravention of ss 340(1) or 351(1) is a factual one that must be evaluated in the matrix that the Parliament created through ss 360 and 361. The factual question requires the Court to ascertain, having regard to the rebuttable presumptions created by ss 360 and 361, what was the decision-maker’s substantial and operative reason for taking or engaging in the action alleged to be adverse: see Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 at 430–432 [30]–[39] per Rares and Katzmann JJ and their analysis of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; see also Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at 447–448 [32] per Tracey and Buchanan JJ. In other words, the factual enquiry must answer the question “why was the adverse action taken?”. If the Court’s answer is a finding that the decision-maker’s reasons for taking that adverse action included a reason proscribed by ss 340(1)(a) or 351(1), then the applicant will have established that the other person, in taking the adverse action, contravened the relevant provision.
17 The effect of ss 360 and 361 is that the person alleged to have taken adverse action under Pt 3-1 of the Act has the onus of proving that the pleaded proscribed reason or intention for taking the action did not form the, or a, substantial and operative reason or intention of each of the decision-maker(s) or other individual(s) involved in the decision-maker(s) coming to have the relevant impugned state of mind in doing so: Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at 86–87 [174], [177] per Bromberg, Rangiah and Bromwich JJ. Their Honours also held, in the context of considering the position where there is more than one decision-maker or individual involved whose reasons for taking the adverse action must be evaluated (at 101 [230]):
It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma (2022) 291 FCR 311 per Allsop CJ at [305], citing March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).
(emphasis added)
18 Where more than one person is involved in the taking of action, including the making of a decision, it is necessary to consider and evaluate the role that each played in that action or decision and whether that individual had the, or a, substantial and operative reason for the taking of the adverse action that, by force of s 793(2), would be the, or a, proscribed reason because of which that person or another person involved took that action.
19 The reason or intention for which a person takes adverse action for the purposes of ss 360 and 361 of the Act need not involve the person having an accurate appreciation of the legal nature of the action: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at 585–568 [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. They explained (relying on what Gleeson CJ had said in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 330–331 [26]) that it is sufficient to establish the person’s intention or purpose by showing that he or she intended to take the particular action (here, giving Ms Han the warning or terminating her employment) with actual knowledge of the circumstance that, and engaged in that conduct because, relevantly, the employee had exercised the workplace right in issue or the conduct discriminated against him or her because of his or her race (or one or more other reasons or characterisations proscribed in s 351). But it is not relevant to establish liability that a person acts under a mistake of law as to whether an adverse action is lawful.
20 A person involved in a process that leads to the adverse action may be a decision-maker, or person whose state of mind suffices, pursuant to s 793(2), for the purpose of determining whether adverse action was taken for a proscribed reason, even though the ultimate act, such as termination, is taken or conveyed by another decision-maker: see Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at 347–348 [90]–[91] per Greenwood, Besanko and Rangiah JJ. That is because, as Lee, Madgwick and Gyles JJ held in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 at 260 [37], where a decision-maker takes adverse action in reliance on another individual’s input, such as his or her report or assessment of a matter that the ultimate decision-maker took into account, and the individual was influenced in making the report or assessment for a reason, or with an intention, proscribed in Pt 3-1 of the Act, such as one in ss 340(1) or 351(1), whether disclosed or undisclosed, the participation in the decision-making process of that individual, while he or she acts with the impugned state of mind, will amount to a reason or intention for the taking of the adverse action within the meaning of s 360, even if the decision-maker is not aware that the individual acted because of that proscribed reason.
21 Thus, in Kodak 129 IR 251, an employee, Mr Lay, gave a ranking of employees to assist his superiors in determining whether to make particular ranked employees redundant. Mr Lay’s rankings played an indispensable part in the assessment process that his superiors undertook in arriving at the adverse action against Mr Elliot. Lee, Madgwick and Gyles JJ explained that, if Mr Lay was influenced in giving a low assessment for a proscribed reason, first, it was likely that he would have given a different assessment were he not so influenced, secondly, this inevitably would have affected the ranking process for employees based on the assessment, whatever the view of appropriate ranking by others, including one of the company’s directors, involved in the decision to take adverse action, and that, therefore, it “would have been a different assessment process”. Their Honours explained (at 260 [37]):
Furthermore, whatever debate there might be about the extent of [the director’s] power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he [scil: the director] would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of [the director].
(emphasis added)
22 In Wong v National Australia Bank Ltd (2022) 318 IR 148 at 159 [37], 167–168 [78]–[83], Katzmann, Charlesworth and O‘Sullivan JJ applied Kodak 129 IR 251. In that case, an individual provided information to the decision-maker on which the latter proceeded without investigating its reasonableness, truth or accuracy (at 167 [79]). Their Honours said that, first, it is necessary to enquire into whether an individual contributed to the decision-making process culminating in the adverse action to a degree sufficient to warrant an evaluation as to whether he or she acted for a proscribed reason or with a proscribed intent (at 167 [78]). Secondly, where the decision-maker acts on the basis of such information, the state of mind of the individual who supplied it is relevant. They said (at 167 [80]):
an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act.
23 Depending on the nature and degree of the involvement of the other individual (or individuals) in the decision-maker’s process in arriving at the decision, it may be necessary to assess whether each individual relevantly had a proscribed state of mind, within the meaning of s 793(2), that affected the reason or intention why the decision-maker took the adverse action (at 167–168 [81]–[82]). Their Honours said (at 168 [83]):
it was necessary to inquire into Mr Arnott’s reasons for making the contribution that he did, whether it be described as “significant”, “plainly important”, “major”, “substantial” or “essential”. It is enough to identify that Ms MacLeod proceeded from factual assumptions that were detrimental to Ms Wong and that were principally (although not solely) based on an assumption that Mr Arnott’s assertions were true. Mr Arnott’s motivations were relevant and as such his actions and accompanying state of mind may be attributed to NAB in accordance with s 793 of the [Fair Work Act].
(emphasis added)
The witnesses
24 Ms Han was the only witness in her case. I formed the view that she was honest and generally reliable. However, she was often repetitive, sometimes unresponsive, an advocate for her claim and dogmatic in giving her account. Nonetheless, I found her to be reasonably accurate in her testimony when she was focused.
25 Ms Han is Chinese. She spoke English reasonably fluently and was able to make herself clearly understood. However, as with many persons who speak a second or other language than their native tongue, Ms Han’s command of English lacked the command of idiom, vocabulary and syntax of a person for whom it is the natural means of expression. In saying this, I am not being critical of Ms Han, whose English skills were considerable and equipped her to fulfil the significant responsibilities of her profession in an English speaking environment. However, as I explain below, because of the way in which she spoke and understood English, she delivered what she believed was a humorous or harmless joke in a way that could be understood as inappropriate and offensive.
26 In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 190 [21]–[22], Ipp JA, with whom Mason P and Tobias JA agreed, cautioned about the need to take “great care” in assessing, and making findings on, a witness’ demeanour when he or she is from a different cultural and ethnic background from one familiar to the judge (or jury). As I noted in Berry v CCL Secure Pty Ltd [2017] FCA 1546 at [196]:
Although Ipp JA and his quotation from Sir Thomas Bingham’s article: “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) Current Legal Problems 1 at 10-11 concerned specifically the difficulty in making demeanour based findings, what both judges wrote has equal application to taking account of cultural differences in the behaviours of individuals. Sir Thomas Bingham wrote:
[H]owever little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when … the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter. Such matters as inflexion become wholly irrelevant; delivery and hesitancy scarcely less so. … If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in a deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear to the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer be given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.
27 St Basil’s called four witnesses who were in senior positions in it at the time of both occasions on which it took adverse action against Ms Han and who were involved in one or both decision-making processes the subject of the two claims. Those were:
Father Nicholas Stavropoulos, who then was the chief executive officer (CEO) of St Basils and left its employ in about August 2020;
Stephen Rooke, who was, until 1 July 2019, the chief operating officer responsible for the operation of St Basil’s residential aged care facilities (of which the Lakemba premises was one), its home care, human resources and information technology departments and some financial strategy and risk management functions. After 1 July 2019, Mr Rooke became the chief risk officer when another executive took up his former responsibilities for the residential aged care facilities. He left St Basil’s employ in February 2021;
Sonya Darwich, who was the director of care at St Basil’s for over three years until May 2021. She was responsible for clinical care at St Basil’s six sites, as well as dealing with complaints and interactions with the Commonwealth Aged Care Quality and Safety Commission. She was a registered nurse, held a bachelor of nursing degree and had a postgraduate qualification in education in business. She had worked in the aged care industry for over 20 years; and
Ms Mota, who began working for St Basil’s as a care manager in September 2017. During 2019, Ms Mota was a general manager for the Lakemba premises. She ceased employment with St Basil’s in January 2022. She was a registered nurse and had worked in management roles for over 10 years. While a general manager at Lakemba, she had responsibility for a staff of about 160 to 170.
Ms Han’s contract of employment
28 On 10 August 2010, Ms Han signed an offer of employment with St Basil’s to work as a registered nurse. She agreed to become familiar, and carry out her responsibilities in accordance, with all relevant aged care legislation. St Basil’s had the right to terminate her employment without prior notice in cases of serious misconduct by her, including if she was, among other matters, first, “grossly negligent or incompetent in the performance of the duties of the position” and, secondly, “guilty of conduct that causes serious risk to the health and safety of a person”. She was also required, at all times, to abide by the policies and procedures in St Basil’s employment manual as published and amended from time to time. St Basil’s policies and procedures included its code of conduct, counselling and discipline policy, and a medication management – procedural framework policy. All of those policies were well drafted.
29 Importantly, as I will explain below, there was no St Basil’s policy or procedure relating to the administration of oxygen to a resident or specifying the employees who could administer it or direct its administration.
30 The code of conduct identified St Basil’s cultural expectations of behaviour in the workplace and set its core values as respect, dedication, working together and accountability. The code of conduct created three primary obligations, the second of which was that an employee deal with other employees equally and respectfully. Item 7.5 in the code of conduct stated:
7.5. Bullying, harassment and vilification
St Basil’s Homes does not tolerate any bullying, harassment or vilification. Any such conduct will be investigated, and appropriate corrective action will be taken. For further explanation about bullying, harassment and vilification please refer to St Basil’s Workplace Bullying Policy.
St Basil’s Homes expects that all individuals are to be treated with dignity, courtesy and respect. Therefore, St Basil’s Homes will not condone any behaviour or actions that may offend, insult, humiliate, or result in the risk of violence to another person or group of people.
31 The code of conduct concluded with a list of examples of breaches of professional conduct, including:
• Putting customers at risk through:
• Medication errors due to careless act.
…
• Any form of abuse towards a customer, employee or visitor, including physical, verbal and financial abuse
32 The counselling and discipline policy included section 4 which was headed ‘What is Misconduct?’. This specified that misconduct occurred when staff either behaved deliberately in a manner inconsistent with the continuation of their contract of employment or caused serious and imminent risk to the health and safety of another person or the reputation or profits of St Basil’s. The policy gave examples of misconduct and serious misconduct. One example of misconduct was: “Inappropriate behaviour at work such as telling inappropriate jokes, bullying, sexual harassment or discrimination”. An example of serious misconduct was: “Refusing to carry out work duties”.
33 The counselling and discipline policy laid out St Basil’s disciplinary procedure, which, in most cases, would involve five stages, although that might not apply in cases of serious misconduct attracting summary dismissal. The general manager, in consultation with the human resources manager, would investigate all cases of a serious nature. The five stages were investigation, disciplinary interview, disciplinary action, termination and documentation. During the investigation stage, pending its completion, St Basil’s could suspend the employee from duty on ordinary pay. Next, stage 2 provided, relevantly:
Disciplinary Interview: Once the investigation is completed, St. Basil’s management will make a determination whether or not the staff is required to attend a disciplinary interview to further discuss the allegations and concerns.
The following procedure must be adhered to when arranging and conducting a disciplinary interview:
• The staff must be given advance notice of the meeting and the allegations or concerns that will be discussed. Any relevant data and witness statements need to be attached to the notice of meeting for the staff.
• The staff will be given a reasonable opportunity to have a representative at the meeting. Please see Section 6: Role of a Support Person for more information.
• At the meeting, the allegations or concerns will be openly discussed with the staff, including any evidence upon which the allegations or concerns are based.
• The staff will be given the opportunity to respond to the allegations or concerns.
…
• Staff will be sent a copy of the meeting minutes, which they must sign and return a copy to be placed in their file.
(emphasis added)
34 If the disciplinary action were to be termination, then the CEO had to be consulted.
35 The procedural framework policy provided that a breach of it would be considered to be a breach of the medication management policy, which St Basil’s did not tender or seek to adduce in evidence. The procedural framework policy stated what it conveyed was important information and procedures on 28 topics, including items 12 and 24. Relevantly, item 12 provided:
12. Delegation of Medication Administration:
Registered nurses conduct assessments for competency of administration by non-registered staff and have a professional responsibility to take over the administration of medications in certain circumstances in accordance with the requirements of the Nurses and Midwives Board. Such assessments are made in the interests of safety for consumers based on the:
• Type of medication
• Route of administration
• Condition of the resident
• Training and competency of care staff who may administer medication
• Medication system in place
(emphasis added)
36 Item 24, headed ‘High Risk Medication Management’, set out in detail the legislative requirements for documenting the management and administration of schedule 8 medications, and provided, in particular:
To prevent any error or [misappropriation] of S8 [scil: schedule 8] Medications, St. Basil’s will ensure that the:
• Registered nurse and witness to administration must remove S8 medication from storage as required.
• Procedure for medication administration as outlined in Section 13: Medication Administration Procedure (DAA and non-packed Medications) of this document is followed by the registered nurse and observed by the witness.
• Removal of S8 medication for administration is recorded in S8 register by registered nurse including quantity of drug, time of day, quantity of drug held after administration and signature of registered nurse.
• Witness checks the entry and countersigns the entry if all details are correct.
• Remainder of S8 medication is returned to storage and locked away.
(emphasis added)
Background
37 Prior to June 2019, Ms Han had not experienced any difficulties in her work for, or relationships with her fellow workers or management at, St Basil’s. She worked as the registered nurse assigned to the east/west wing at the Lakemba premises. Late in the first half of 2019, she perceived a change after a new senior registered nurse, or as Ms Han understood her to be, a new care manager, Djeddalyn Alcantara, was appointed. Ms Han and the registered nurse assigned to level 2 at the Lakemba premises reported to Ms Alcantara.
38 In fact, in about June 2019, St Basil’s increased Ms Han’s workload by about 40% from what it had been. Ms Han understood that Ms Alcantara was responsible for this. However, as Mr Rooke made clear in his evidence, St Basil’s board had required economies to be made and, in consequence, St Basil’s introduced a new model in July 2018 which increased the numbers of recreational activity officers on floors and decreased the qualified nursing staff. He said this was because, as he put it, “on the nursing staff, there was actually a big problem, because we had overspent because we had too many people on the floor … So, in 2019, we were clawing that back a little bit”. This involved allocating to Ms Han responsibility for, in addition to her then current 32 residents, five care staff and one team leader (a position below a registered nurse) in the east/west wing and an additional 10 residents, two care staff and one team leader in the dementia unit on level 1. Those two locations were about five minutes’ walk from each other. There were also about 35 residents on level 2 and about another 9 in the dementia unit on level 1 who had been allocated to the other registered nurse (the level 2 registered nurse) on duty with Ms Han. This appeared to be the result of a cost cutting measure that split the work previously done by the registered nurse in the dementia unit on level 1 between the level 2 and east/west wing registered nurses.
39 Ms Han perceived that Ms Alcantara caused a number of her Filipino relatives, friends and associates to be allocated to better, or less onerous, shifts or jobs while she (Ms Han) felt more and more overworked on her shifts because of her recent new workload allocation. Ms Han was now so busy that often she had no time in which to eat her lunch and felt unsupported by the new staff. Ms Han reported to Ms Mota and Ms Alcantara on several occasions that the increase in her workload from June 2019 had resulted in her not being able to take her lunch breaks and was upset at not being paid for working the corresponding extra time.
40 Importantly, after her termination, St Basil’s changed the east/west wing registered nurse’s duties to exclude responsibility for the level 1 residents.
41 Ms Han raised a number of incidents that caused her concern over the period from June 2019 which she perceived as either discriminatory or unfair treatment of her but were not the subject of the circumstances involved in the adverse action relating to either the warning or her termination. I will deal with those other incidents below only to the extent that they affect the resolution of the two issues relating to her adverse action claims.
The warning adverse action claim
The incident leading to the warning
42 On Sunday, 4 August 2019, during the handover, at around 3:00pm, Ms Han had a conversation with Sia Bangao, who was an aged care worker, in the presence of a new staff member, Aakash Dhungana, whom Ms Bangao was introducing to Ms Han. Ms Han said that Ms Bangao raised the topic of being called “a bitch” as follows:
she said “I don’t care they call me a bitch”. I said “Are you a bitch, Sia?.” Then I said to the male nurse, “There you go, you work with bitch. I’m going to, I’m going home.”
43 According to Ms Han, another registered nurse, Sharmila Pandey, caused Ms Bangao and Mr Dhungana to make a complaint to Ms Mota and Ms Alcantara (all of whom were Filipinos) accusing Ms Han of calling Ms Bangao “a bitch”. When pressed about this in cross-examination, Ms Han adhered to her account that she had given consistently to her superiors at St Basil’s when they questioned her about the complaint and during the trial. She was asked about what occurred at a meeting with Ms Mota and another general manager, Rosy Thapa, on 5 September 2019 and said:
what I’m going to suggest is that, during this meeting, you admitted that you had called Ms Bangao a bitch. Correct? --- I admitted, I repeat - - -
And and - - -? --- ? --- I repeat what she said … I just repeat what she said. I’m not calling and saying, “You bitch”. I just said, “She said, ‘I don’t care, they call me bitch’”. I said, “Are you a bitch?” Yes. I was laughing. We … always joking. That’s exactly what I said. I didn’t call her a bitch. I just repeat what she said.
(emphasis added)
44 In Ms Han’s understanding, she was engaging in harmless repartee with Ms Bangao, making a joke with Mr Dhungana and did not intend to be offensive. I accept her evidence that, as she understood what she said, she was not accusing Ms Bangao of being “a bitch” and was attempting to be humorous. However, even as she re-enacted this scene on numerous occasions during the trial, both in evidence and submissions, her manner of delivery did not sound jocular or light hearted to me as a listener. This was even though Ms Han was, obviously, delivering her account in court in a way that she believed accurately reproduced what she had said and how she had said it to reinforce or justify the character of what, to her, was a benign episode of banter.
45 Even for fluent English speakers, jokes can misfire or fall flat, including when the delivery does not come across as entertaining. I think this is what happened here, but it had very serious consequences for Ms Han.
46 The incident developed within St Basil’s as follows.
47 At about 8:25pm on 4 August 2019, Ms Pandey emailed Ms Mota, Ms Alcantara, Ms Thapa and Danna Huang (who was also a general manager). Ms Pandey wrote:
We have a compliant [scil: complaint] about Sr Casey [viz: Ms Han] from the afternoon staff. As per the Care staff, Sia Bango [sic] and Akash Dhungana, CSE Sia was introducing to Sr casey at 1440, but Sr Casey replied to CSE Akash that “you know that you are working with bitch” and she repeat the sentence twice in front of CSE Sia. At the beginning CSE Sia though, she was joking but she never apologised to her or even say “Sorry”. CSE Sia was reporting me that she is very upset. The witness is CSE Akash.
I have told to both of the staffs that I will escalate the matter to the managers and they will investigate the issue.
(errors in original; emphasis added)
48 On 5 August 2019, Ms Bangao emailed Ms Huang, saying:
Sorry to bother u on sunday afternoon I had an issue with day shift Rn [registered nurse] during handover who labeled me a bitch in front of other staff. Her comments are offensive and embarrassing to be called that in front of other staff I never want to go thru that situation again I feel very upset at moment we should not be talking like this we do a job that is hard and need each other’s support hope u can help me with this situation the Rn involved was casey.
(errors in original; emphasis added)
49 Next, on 6 August 2019, Mr Dhungana emailed Ms Mota his corroborating version which he said was at the instigation of the registered nurse on level 2 (ie. Ms Pandey).
50 On 12 August 2019, Ms Mota wrote a letter to Ms Han requiring her to attend “a fact-finding meeting” with Ms Mota and Ms Darwich to discuss “An alleged serious breach of Code of Conduct” on 14 August 2019 (the first 12 August letter). The letter was bereft of any information at all about what the alleged serious breach was. The letter bore no relationship to the requirements in stage 2 of the counselling and discipline policy or the importance of giving Ms Han procedural fairness. As will appear, despite the requirements of that policy, Ms Mota gave evidence that “this is what we normally do in our process when we’re investigating and we try to determine … the severity of an incident that we’re trying to investigate”. She asserted (but I do not believe) that she would have sent that letter after “liaising with H[uman] R[esources]”.
51 Mr Rooke said (and I accept) that the first 12 August letter was not sent in accordance with “usual practice”. He said that “We provided some support to … Ms Mota, and advised that the correct approach to do this was to at least spell out what was to be discussed and that this letter by itself was not the most appropriate thing to have sent”. He said that such a letter would be likely to upset its recipient.
52 Later on 12 August 2019, soon after she received the first 12 August letter, Ms Han sent Ms Mota a text message asking for details of the incident, saying that the information in the letter was very general. At 4:42pm that day, Ms Mota emailed an amended letter (the second 12 August letter) which, in evidence, she said was “just to give her a bit more background”, that now included an opaque paragraph that read:
The allegations include use of inappropriate language, denigrating fellow employees, causing undue emotional distress to a fellow employee. These events are alleged to have occurred on 4 August.
53 Ms Darwich was aware that a letter was to be sent to Ms Han to attend a fact-finding meeting. She gave this evidence in answer to questions I asked her about the first 12 August letter, which was revealing about her insouciant attitude to treating a person in Ms Han’s position (who was asked to attend a fact finding meeting) fairly:
As the director of care, if I was sending out this letter I may have put a paragraph in there stating what the actual issues were so that Wei Han maybe had time to reflect or think about it prior to the meeting. But then again, the code of conduct is … a document that’s printed, that … if there was a breach, it is directly related to that document.
But the employee has no idea of … what the alleged serious breach is, and the code of conduct is a long document? --- But it is only a fact-finding meeting, it’s not a disciplinary meeting in any way. It’s only a fact-finding meeting, to come in and give Wei Han the opportunity to answer. It’s … not a disciplinary meeting, it’s only for her to come and it’s just a fact-finding. It’s not a formal disciplinary.
So am I to understand that you think it’s fair to say to an employee, “It’s alleged that you’ve committed a serious breach of the code of conduct”, and not tell the employee anything about what that alleged breach is in a letter sent to the employee and requiring her to come to a meeting? --- Your Honour, yes. … I believe that it should have had some additional information. But if I received this letter, I would know that it would directly relate to the code of conduct.
It would, but you wouldn’t know why - - -? --- No.
- - - would you? --- No.
And you would be - - -? --- But I would find out in the fact-finding meeting.
…wouldn’t you think the employee might be a bit distressed that … they’re being accused of something but not told what it was? --- Correct, but that’s why it’s only a fact-finding it’s not formal. … if we were bringing someone in to discipline them, then … the layout of the letter would be different where you would have all the issues listed, but the code of conduct is, it’s very descriptive, … and it’s there.
As you say, it covers the whole range of activity that the employee is expected to adhere to - - -? --- Correct.
(emphasis added)
54 This concept of a fair procedure seems to have been inspired by matters decried by Franz Kafka. Ms Darwich’s dealings with Ms Han reflected the peremptory and insouciant attitude that she displayed in that evidence.
55 On 14 August 2019, Ms Han attended a meeting with Ms Thapa and Mr Rooke (the 14 August meeting). She gave them a medical certificate from a traditional Chinese medicine practitioner and told them that she had taken some traditional medicine because she felt nervous, anxious and unwell. Mr Rooke said that they told her that this was not acceptable under the sick leave policy and gave her the opportunity to obtain a standard sick leave certificate from a general practitioner. Ms Han asked them to give her details about what was alleged against her because of the lack of content in both of the first and second 12 August letters. Mr Rooke told her that a staff member had reported that she had called them “a bitch” twice. She said that she was not aware of ever having had an argument with, or confronting, another staff member. Ms Thapa said that the alleged incident had occurred on 4 August 2019 at the handover time. Mr Rooke realised that Ms Han needed to be informed of the allegations and said that they would send them to her. Later on 14 August 2019, Ms Mota wrote to Ms Han and confirmed that she had been suspended for being in breach of the code of conduct.
56 On 21 August 2019, Ms Mota wrote to Ms Han giving her details of the allegations for the first time. The letter attached Ms Bangao’s and Mr Dhungana’s emails of 5 and 6 August 2019 which stated their version of events. The letter said that St Basil’s had found that the allegation, that Ms Han had referred to Ms Bangao as a “bitch” in front of another staff member, had been substantiated. It recorded that, at the “initial fact finding meeting”, Ms Han had “denied any knowledge of ever conducting [herself] in this manner”. It directed Ms Han to attend a meeting on 23 August 2019 “to show cause in relation to the sustained allegations against you”. It stated that St Basil’s believed that Ms Han’s conduct was a “serious breach of St Basil’s Mission and values, Policies and Procedures and Employee Code of Conduct”. The letter said that Ms Han could submit a written response before or at the show cause meeting and have a support person in attendance who should not be another St Basil’s employee.
57 Ms Han said that, because she was unwell, the meeting was rescheduled to 5 September 2019. She said that earlier, in June 2019, St Basil’s had refused to let her bring another employee as her support person to a meeting on an unrelated matter. She had no one to bring to support her on 5 September 2019.
58 On 5 September 2019, Ms Han attended the show cause meeting with Ms Mota and Ms Thapa (the 5 September meeting). Ms Han handed them a medical certificate and a written statement in which she apologised for the distress she had caused Ms Bangao and said that Mr Dhungana had told the truth. She wrote that she had a good relationship with Ms Bangao and they were friends who joked with each other. She said that she had not denied anything at the 14 August meeting but, rather, was then unaware of what or who was involved in the accusations against her. She wrote:
4. On 4/8/19, after handover (3:5pm [sic], I finished my duty) Sia starts making some complaints about some staff then she said “I don’t care if they call me a bitch”
I was joking to Sia “oh, you a bitch Sia?” she wasn’t upset and angry. Then I was laughing and said to the male staff “there you go, you working with a bitch”
I’m already late and need to go home “Have a good shift guys”
Then I left and went home
5. As the male staff stated that he thought we were close and friendly. All that happened in a very friendly way.
NOW I understand people are sensitive to certain word or certain things. I also understand that Sia got hurt from the word “bitch” even though it was purely a joke. I believe it is misunderstanding. However the damage already done. I wish Sia understand me that I did NOT intend to hurt her. I’d like to apologize and wish she accept my sincere apology
59 Ms Han admitted to Ms Mota and Ms Thapa that, indeed, she had called Ms Bangao “a bitch”, but in the context set out in her written statement and confirmed in her oral evidence as I have set out at [42] and [43] above.
60 On 10 September 2019, Ms Mota sent to Ms Han a two page letter headed ‘Final Written Warning’ (the 10 September letter). The letter recited that St Basil’s had made decisions based on interviews with, and statements from, the witnesses and Ms Han and stated:
The Investigation findings are:
1. Breach of St Basil’s Homes Unacceptable Workplace Behaviours policy: Substantiated. Our investigation found that you told a joke that humiliated, offended and caused unnecessary distress to your colleague.
2. Breach of St Basil’s Homes Code of Conduct: Substantiated. Our investigation found that you did not treat your colleague with dignity, courtesy and respect.
3. During the investigation period, you have claimed sick leave without providing a medical certificate for the effected period. This is a breach of the St Basil’s Homes Leave policy.
4. Despite initially denying the alleged behavior [sic], at our most recent meeting on 05/09/2019 you have confirmed that each of the above behaviors [sic] happened. You have also apologized for your behavior [sic] to your colleagues and you confirmed that you do not have a medical certificate for the period of sick leave.
(emphasis added)
61 The letter informed Ms Han that St Basil’s had decided to give her a final warning because of her breaches of the code of conduct, her unacceptable workplace behaviour and breaches of its leave policies. It required Ms Han, by 24 September 2019, to retake and pass St Basil’s bullying and harassment online module and to read, understand, sign and return the code of conduct. Next, it stated:
4. We have decided to support you by placing you on weekday morning shift on Mondays and Tuesdays so we can monitor your behavior [sic] towards your colleagues and provide more direct management support and guidance. This arrangement will be until further notice, with a view to a return to the weekend duties at some point in the future. The details of this timeframe will be discussed with you when you commence your new shifts. Prior to this arrangement, we are giving you 2 weeks to organize any necessary preparation to commence the new roster days.
62 Mr Rooke said that the reason for including in the 10 September letter the finding that Ms Han had breached the leave policy was that a manager had explained to him that, during the investigation process, Ms Han had had a “short period of HR authorised leave” prior to the investigation which had expired and that:
then there was meant to be a reconciliation process to come back to work and return to work. During that time when the return to work was scheduled, Ms Han was on sick leave and started her own period of sick leave after the end of the authorised process.
63 That answer reflected the statement below in the 10 September letter:
Your requested sick leave for the last fortnight has been denied. You did not obtain a medical certificate for the sick leave and acknowledged this at our meeting. The leave taken over the past 2 weeks has been recorded as unpaid leave and you will not be paid in the payroll period that is being processed on 11 September 2019.
(emphasis added)
64 Since Ms Mota signed the 10 September letter, I infer that she told Mr Rooke what he attributed to a manager.
65 During her evidence, Ms Darwich acknowledged that Ms Han did not need to provide a medical certificate because she had been suspended. In the end, nothing turned on this. That position became common ground in the hearing.
What were St Basil’s reasons or intent for the warning?
66 Each of Mr Rooke, Ms Darwich and Ms Mota gave evidence about the reason or intent each had in causing Ms Han to be given the warning that the 10 September letter conveyed to her.
67 Mr Rooke said that, during the 14 August meeting with Ms Han, St Basil’s had given Ms Han an opportunity to provide a compliant medical certificate but she did not do so by “the deadline we set to provide the letter. So the decision was made to say that it wasn’t sick leave in accordance with our policy”. Mr Rooke said that Ms Han had characterised her use of the word “bitch” as not intended to give offence but as an attempt at humour that had been misunderstood. He said that, even accepting that Ms Han had not intended to harm the employee, she (Ms Bangao) had told St Basil’s that she:
felt humiliated and that they had been vilified in front of another staff member. So we felt that the language was inappropriate for the culture and being around the consumers and the space we were in. And that whether it was a joke or not, we did not put intent behind what Ms Han had said but we said it was inappropriate notwithstanding, given our policies of conduct and behaviour.
(emphasis added)
68 In examination in chief, Mr Rooke said that he had reviewed and approved Ms Mota sending the 10 September letter and the final warning that it gave to Ms Han. He said that his review and approval occurred in the context of his authority, in relation to serious warning letters, “to check them, to make sure the process had been correct and to sign off”. He gave his approval to Ms Mota sending the 10 September letter based on the four findings in it, in the context that, while the first two related to the one incident involving Ms Han using the word “bitch”, that conduct had been in breach of two different policies. He said:
There are four investigation findings here. There is a breach of unacceptable workplace behaviour, which was substantiated. There is a breach of code of conduct, which was substantiated. There is a breach of the sick leave policy, which … we gave time to rectify, and wasn’t rectified. And there was confirmation during discussion that the behaviours had happened without intent, but they had happened. In combination, these workplace, employee relations behaviours were of sufficient standing for us to issue a warning.
(emphasis added)
69 He said that his role was to look at the process that Ms Mota, as a general manager, had followed and to decide whether she had the discretionary power to issue the warning, but if she had that power, it was for the general manager to exercise as she saw fit. He said that, while he provided advice, perhaps based on information from an external service provider, about which of St Basil’s policies had been breached, the manager (scil: Ms Mota) “dealt with Ms Han in terms of their own feedback in that process, because it was a standard incident and did not go to my desk” (emphasis added). I accept this evidence of Mr Rooke.
70 Ms Darwich said that she discussed the findings in the draft of the 10 September letter with Mr Rooke and Ms Mota. She said that she came to an understanding with them that:
As a healthcare professional you don’t have the right to go to work and call anyone a bitch. Whether you apologise or not, the fact that it still happened … caused other staff members … within the workplace distress and anxiety. Then regardless of whether someone apologises or not, the incident occurred, people were affected by it and that was the outcome decided by the organisation.
71 She said that “for a healthcare professional to call another staff member a bitch within the workplace … doesn’t show respect, it doesn’t show dignity and it’s not courteous”. Ms Darwich said that the behaviour did not comply with the code of conduct. She believed that a registered nurse was a leader in the workplace to whom the assistants in nursing looked up and that people “don’t go to work to be treated badly or to be called a bitch”. Ms Darwich understood that Ms Han was scheduled to be on leave for the whole of the period during which the 10 September letter required Ms Han to retake and pass the bullying and harassment online module and sign the code of conduct. However, she was not aware that that would cause Ms Han to cancel her planned trip to China during that leave.
72 I accept Ms Darwich’s evidence that her reasons for approving the warning were only those she gave in the evidence I have summarised above.
73 Ms Mota said that, during the 5 September meeting, she tried to explain to Ms Han that, even though she may not have intended to harm Ms Bangao, the latter “was really upset by what happened”. Ms Mota thought that Ms Han was “open and honest”. In deciding to send the 10 September letter, Ms Mota said that she discussed the outcomes with the human resources team (scil: Mr Rooke and his team) to see what could be done to support Ms Han “and at the same time be able to give us the confidence that this behaviour is not happening … at any point … when you’ve got someone in … a leadership role”. Ms Mota regarded the incident of calling Ms Bangao “a bitch” to be a major breach of the code of conduct. I accept Ms Mota’s evidence on this issue.
Ms Han’s submissions on the reasons for the warning
74 Ms Han alleged (in essence in her statement of claim) that St Basil’s took adverse action against her in giving her the warning because, from June 2019, she had complained to St Basil’s about the close relationship between her Filipino co-workers, their discriminatory and bullying conduct towards her and because she was Chinese. She asserted that St Basil’s gave her the warning, denied her sick pay while suspended because she had not provided a medical certificate and changed her shifts from weekend to weekdays so that another, newly employed, Filipino registered nurse, Heidee Lee, could be given her weekend day shifts, which were more favourable for Ms Lee, because she was a relative or friend of the Filipino employee cohort.
Was the warning adverse action taken because of a proscribed reason?
75 I reject Ms Han’s argument that St Basils contravened ss 340(1)(a)(ii) or 351(1) of the Act in giving her the warning in the 10 September letter.
76 I am satisfied that each of Mr Rooke, Ms Darwich and Ms Mota decided to give the warning and to send the 10 September letter to Ms Han only because she had contravened the code of conduct by calling Ms Bangao “a bitch” and for the mistaken, but, for present purposes, irrelevant reason, that they thought she had contravened the sick leave policy. I am satisfied that each of them regarded Ms Han’s use of the word ‘bitch’ as unacceptable in the workplace and because that conduct had caused Ms Bangao to be distressed, even though they each accepted that Ms Han did not intend to cause distress or harm when she said it. I accept Ms Mota’s evidence that she regarded Ms Han’s use of the expression “a bitch” to be a major breach of the code of conduct.
77 While Ms Han alleged that Ms Alcantara, who appears to have encouraged Ms Bangao to complain, and Mr Dhungana were all Filipino and Ms Han suggested they acted to discriminate against her, because she was Chinese, there was no direct evidence that the actual or perceived state of mind of those co-workers was shared by St Basil’s, through its decision-makers (Mr Rooke, Ms Darwich and Ms Mota), when each gave or agreed to give Ms Han the warning or that they acted in doing so for a substantial and operative reason that included that state of mind.
78 A contravention of ss 341(1) or 351(1) depends on the person who takes, or refrains from taking, the act alleged to be adverse or discriminatory doing so for a reason, or with an intent, that includes the proscribed reason as I have explained at [15]–[23] above. I am satisfied that, having seen and heard them, each of Mr Rooke, Ms Darwich and Ms Mota did not take the adverse action of giving Ms Han the warning with any reason or intention either to discriminate against her because she was Chinese or to deal adversely with her because she had exercised a workplace right to make a complaint. Ms Han did not articulate any basis on which, even if St Basil’s should have paid her while she was suspended without her needing to provide a medical certificate, it took that adverse action for a proscribed reason. I am satisfied that Mr Rooke, Ms Darwich and Ms Mota decided to reject Ms Han’s complaint about not being paid sick leave while suspended and to include their finding about this in the 10 September letter only because they were mistaken about her entitlement to such a payment in the circumstances.
79 In reaching these findings, I have been conscious of the unfavourable views that I have formed about the reliability and honesty of the evidence given by Ms Mota and, to a lesser extent, Ms Darwich, as to Ms Han’s termination and the manifestly unfair process that I find Ms Mota followed in both of St Basil’s desultory attempts to give Ms Han an opportunity to deal with allegations against her that resulted in, first, the warning, secondly, her termination and, thirdly, her not being paid while suspended. However, unlike what happened when she was terminated, Ms Han’s conduct in relation to Ms Bangao, while unintentional, was, on the material before Mr Rooke, Ms Darwich and Ms Mota, objectively in breach of cl 7.5 of the code of conduct and fell within the concept of misconduct as described in section 4 of the counselling and discipline policy. Moreover, Ms Bangao’s complaint that Ms Han’s calling her “a bitch” had distressed her left the three decision-makers with no real choice but to decide as they did in giving Ms Han the warning and sending the 10 September letter.
80 As French CJ and Crennan J explained in Barclay 248 CLR at 523 [62], the Act does not require a decision-maker to establish that his or her reasons for adverse action “be entirely dissociated from an employee’s union position or activities” or from the employee’s political opinion in Rumble 275 FCR at 433 [41] per Rares and Katzmann JJ and at 442–443 [76]–[77] per Flick J.
81 While the decision to give the warning may also have suited a wish or desire of Ms Mota to prefer Filipino employees to the Chinese, Ms Han, in allocation of work and shifts, I am satisfied that that congruence was not any part of Ms Mota’s substantial and operative reasoning for her decision on this occasion. In other words, I am satisfied that Ms Mota (as well as Mr Rooke and Ms Darwich) did not take the action of giving Ms Han the warning for a substantial or operative reason that included Ms Han’s complaints to that time or to discriminate against her because she was Chinese or by favouring Filipino employees.
82 Accordingly, I reject Ms Han’s claims that St Basil’s contravened ss 340(1) or 351(1) in issuing the warning or sending her the 10 September letter.
The termination adverse action claim
The 26 September 2019 meeting
83 On 16 September 2019, Ms Han contacted Ms Darwich to raise some concerns, and they arranged to meet on 26 September 2019.
84 On 26 September 2019, Ms Han met with Ms Darwich and Ms Mota (the 26 September meeting). In that meeting, Ms Han gave them a long note of over six pages raising her concerns about, first, understaffing and her increased responsibilities on weekends in the east/west wing, secondly, feeling that she was discriminated or ganged up against by other staff, including Ms Alcantara and persons whom she said were related to, or friends of, one another and were “from same country” (viz. the Philippines) and, thirdly, experiencing problems in working with them that were not addressed when she raised issues or concerns about their conduct or professional work. The note said that Charito Young, a team leader, was Ms Alcantara’s aunt. Ms Han complained in the note that another registered nurse, Ms Lee, who (Ms Han said) was also a close friend or relative of Ms Alcantara, had been given Ms Han’s weekend shifts after 10 September 2019. She also complained about having had to work extra time, not being able to take breaks and not being paid or recognised for doing so.
85 During the 26 September meeting, Ms Han elaborated on the matters in her note when speaking with Ms Darwich. Ms Darwich told her that there was nothing wrong with family members working together and that the CEO did not have a problem with this occurring. Ms Han said that these staff did not like her because she reported them to management. Ms Darwich said that the issue was that Ms Han had called someone “a bitch” and that this was not professional. Ms Han said that she had made a joke, but acknowledged that it was unprofessional and said that she had admitted her mistake and apologised to Ms Bangao. Ms Darwich responded that she was lucky to have her job because, had Ms Darwich dealt with the matter, she would have sacked Ms Han.
86 Ms Han asked Ms Darwich to investigate the treatment about which she complained before Ms Han returned to work after the suspension because she did not feel safe. At about this point Ms Mota briefly joined the meeting and reiterated that Ms Han had called someone “a bitch”. At some further discussion, Ms Mota left.
87 Ms Han told Ms Darwich that she had to deal with complaints from both staff and relatives on her weekend shifts. Ms Darwich told Ms Han that the suspension and disciplinary outcome of 10 September 2019 could not be changed. Ms Darwich phoned Ms Mota and asked her when Ms Han would return to weekend shifts. Ms Darwich then told Ms Han that she would try to have the weekend shifts restored in about two weeks’ time and invited Ms Han to ring her if she was struggling.
The lead up to the 12 December 2019 meeting
88 By about 26 October 2019, Ms Han was back working in the east/west wing and level 1 on her usual weekend shifts.
89 During the period from June 2019, Ms Han perceived that Ms Pandey (a Filipino) was treating her badly and putting her down in front of other staff and residents. Ms Han also raised a concern in her opening address (which became part of her evidence in chief) that Ms Lee received favourable treatment, as compared to Ms Han, in respect of incidents that Ms Han said had occurred on 16 and 23 November 2019 and 15 December 2019.
The issues Ms Han raised about events on 16 and 23 November 2019
90 St Basil’s used a system called “Leecare” for staff to make records about the health and care of residents which included the ability to generate an electronically recorded incident form to report on matters that healthcare regulatory requirements or St Basil’s policies required to be notified or documented.
91 On 16 November 2019, Ms Han recorded on an incident form a complaint by Anne Jones that the treatment by staff of her resident mother, Katina Kalantzis, was elder abuse. Ms Han wrote that Ms Jones had informed her that:
staff were not taking her mother to the toilet at night;
when Ms Kalantzis rang the buzzer for assistance to go to the toilet at night the staff asked what she wanted, turned the buzzer off and walked away;
this had occurred on the previous night three or four times; and
at around 4:00am, when Ms Kalantzis rang the buzzer, a staff member came in, turned it off and said to her “It’s only 4 o’clock. you need to wait until 5 o’clock” before leaving the room.
92 Ms Han said that this conduct had occurred during Ms Lee’s shift. She noted on the incident form that Dr Calligeros, who, I infer, was Ms Kalantzis’ or the Lakemba home’s normal hours doctor, had said that she should make a report. Ms Han informed the manager who asked her to get Ms Jones to write an email to her with the details, which request Ms Han communicated.
93 Next, on Saturday, 23 November 2019, Ms Han recorded on an incident form that, when she was assisting another resident, George Arnaoutis, she noticed that he had bruises on both arms. She took, and posted as part of the incident form, the photo below showing the bruising on his right arm:
94 As is evident in the photo, the bruising is pronounced and looks like the impressions made by four fingers being pressed into the depicted arm with considerable force. Ms Han recorded that she had informed Mr Arnaoutis’ daughter, Lisa, and the facility manager of these matters on 23 November 2019. The incident form also recorded that Mr Arnaoutis suffered from Parkinson’s disease, Alzheimer’s disease and dementia.
95 The only other recording on this incident form was included much later by Ms Alcantara on 19 December 2019 who, in resolving the incident (as the form recorded), wrote against the entry ‘Actions taken to prevent future incidents’:
George can be agitated and usually up and down.
He rolls over to crash mat when in bed time and again. He tries to get up and reach out for chairs and tables around his room. Staff to continue monitor and ensure that when George observed agitated, to ask him what he wants and where he want[s] to go to settle him.
To continue monitor pain.
To continue with wound dressing regime.
Staff to apply moisturiser cream regularly for skin integrity.
96 In seeking to explain why she had done nothing to investigate the bruising depicted in the photo, Ms Mota asserted in evidence that Mr Arnaoutis “had a lot of incidences of bruising”. Ms Mota also gave this evidence, which I found unresponsive, to explain what Ms Han’s complaint or incident form suggested must have been very strong pressure needed to produce such bruising:
So … what the incident form is saying is there was bruises on both arms and part of the investigation is saying he as I mentioned prior, George has an tendency to regularly fall, regularly hit himself, like, when he’s you know, bump his elbow, bump his arm, etcetera, etcetera. He does bruise very easily. So that’s what was part of the investigation.
HIS HONOUR: Well - - -? --- And, as I say, I’m not always the one that investigates these incidences. So to go like I can’t say that I went to have a look at this bruise or I specifically looked at that incident.
Well, would it be fair to say that by 19 December 2019, bruises that were evident on 23 November 2019 are likely to have substantially, if not completely, resolved? --- Completely resolved. Yes.
So if one looks at the photograph that Ms Han has attached to this report and the nature of the bruising that he has indicated on the photograph, is that consistent with simply saying he was agitated and fell out of bed and the like? --- Possibly. Possibly. If he’s agitated, sometimes he might lash out at the staff. Sometimes, … it’s a roll out of bed. Sometimes, it’s a stand up and …, you know, trying to walk. He had a bed sensor a chair sensor. … I think, at one point, we had a helmet on him because he was just, like, a really high falls risk.
(emphasis added)
97 When Ms Han asked her in cross-examination, in relation to Mr Arnaoutis’ bruising, whether physical abuse or neglect was a serious incident that needed to be reported, she replied “Correct. Neglect abuse now, yes” (emphasis added). I asked her what she meant by “now” in that answer and she replied that, after April 2021, neglect had to be covered, whereas before, only physical abuse, sexual abuse and a missing resident had to be reported. The changes, she said, were based on recommendations by the recent Royal Commission. Ms Mota’s evidence was unpersuasive. The bruising in the photo had not been investigated and, as Ms Han said, raised issues as to how the resident had been treated.
Ms Han’s complaint on 1 December 2019
98 Ms Han’s feeling of disquiet about Ms Pandey intensified to the point that, on 1 December 2019, she sent Ms Mota an email with a list of her grievances to that time (the 1 December complaint).
99 In the 1 December complaint, Ms Han wrote that, until the previous few months, she had not had any trouble with staff, residents or their relatives. She then said that, in the recent past:
I was repeatedly targeted by a staff member which made me feel unsafe to work at St Basils. I would like to make a formal complaint in regards to this staff member – Sharmilla [Pandey]’s unacceptable conduct towards me. The following are a few incidents [that] happened recently.
(emphasis added)
100 She then listed three incidents (which I have renumbered chronologically):
(1) On 6 June 2019, during an offsite training session, a discussion occurred in which a colleague said that support from management was important. Ms Han said that she responded that support from maintenance and IT personnel was also important. She said that Ms Pandey told those present “they are both panicking”, which, Ms Han said, made her and her colleague feel embarrassed in front of all those present.
(2) On 9 November 2019, Ms Han worked on the same shift as Ms Bangao for the first time since 4 August 2019. She said that Ms Bangao said “Hi Casey, I’m very happy to see you back”. Ms Han said that she thanked Ms Bangao and commented:
I always believe TIME WILL TELL THE TRUTH
The issue between me and Sia was not dealt with in a proper and professional manner. Sharmila encouraged and pushed staff to report me immediately rather than follow the procedure. Shamily did not follow the identified steps as laid out in the online training:
step 1 Discuss the issue directly with person involved
step 2 Discuss the issue with a manager, supervision or nominated person
step 3 Participate in mediation
step 4 Make a formal written complaint
and she did not comply the confidentiality policy which resulted in almost all staff at St Basils knowing of the issue between Sia and I.
(errors and italic emphasis in original; bold emphasis added)
(3) On Sunday, 17 November 2019, staff noticed that a resident, Leon Karitatis was in distress during the morning rounds. Ms Han called his daughter to inform her that he needed to be admitted to hospital. The daughter asked that he be treated at St Basil’s while she made her way there. After her prompt arrival with her brother, they discussed Mr Karitatis’ condition with the doctor on the telephone and decided not to move him to hospital. On the following Saturday, 23 November 2019, Ms Han asked the team leader on duty about Mr Karitatis. The team leader told her that, on the previous Sunday afternoon, first, Mr Karitatis had been sent to hospital and, secondly, Ms Pandey said to the team leader “What’s yours [sic] doing all morning? Sr Casey has 26 years’ experience, why she did not [sic] send him to Hospital?”. Ms Han added:
the comment Sharmila made was ill informed and unprofessional and made me feel humiliated.
on that particular Sunday I missed my lunch break, spent most of morning discussing with family and doctor to ensure the best care for the consumer. It would be a lot easier for me if I had sent him to hospital. however, instead of receiving a bit support or appreciation for our hard work, Sharmilla criticized my hard work in front of other staff.
THIS IS NOT THE FIRST TIME
(errors in original; emphasis added)
101 Ms Han concluded her list by repeating that, although she was trying hard to forget the past:
I continue to work hard as usual, however I was repeatedly targeted by her [Ms Pandey] and I no longer feel safe to work at St Basils.
(emphasis added)
102 On 3 December 2019, Ms Mota replied by email, copying Ms Darwich, saying that she acknowledged the concerns that Ms Han had raised. Ms Mota said that she had “escalated your concerns” to Ms Darwich and proposed a meeting on 12 December 2019 “for a feedback session”. Ms Mota concluded by saying that the meeting was not a fact-finding meeting but was only “to discuss your feedback and issues you have raised with us”.
The 12 December 2019 meeting
103 On Thursday, 12 December 2019, Ms Han met with Mr Rooke and Ms Mota (the 12 December meeting). After the meeting, Mr Rooke emailed his notes of it to Ms Mota. This meeting is important because, in St Basil’s letter dated 6 February 2020 giving reasons for Ms Han’s termination (the 6 February letter) (which I consider at [211] ff below), she was told that:
Our thorough investigation process took into account:
1. Opportunities for you to understand and respond to the allegations, including at our meetings on 12/12/2019 and 23/01/2020.
(emphasis added)
104 The reference in the 6 February letter to Ms Han being able “to understand and respond to the allegations” (emphasis added) did not relate to any allegation made in the 12 December meeting against Ms Han for she was the person making the complaints in that meeting.
105 Ms Han gave evidence, as part of her opening, that at this meeting, rather than addressing the concerns that she had raised in the 1 December complaint, Mr Rooke reiterated to her that she had called someone “a bitch”. Mr Rooke gave evidence that Ms Han asserted in the meeting that she had not done anything wrong “multiple times”. He said:
Because that meeting, to me, had exactly the elements that Ms Han described and another series of elements that caused me quite a lot of concern through the process because of the way Ms Han was representing all of her colleagues and co-workers. Because there were patterns of behaviour … if that’s the hospital incident.
(emphasis added)
106 He said that he sat next to Ms Han and saw the 1 December complaint as she was going through it. He said that “Those were all serious concerns” but told her that they had addressed them in July and August 2019. He said that Ms Mota and he were trying to focus on the clinical issue (being the care of Mr Karitatis) but “Ms Han spent the rest of the meeting talking about the behaviour of the other staff towards her as opposed to dealing with the clinical issue”. He recalled that the nurse who took over after Ms Han’s shift noticed that a resident (whom I infer was Mr Karitatis as described in item (3) of the 1 December complaint) had been deteriorating for two shifts and decided that he should have been sent to hospital, which occurred immediately. He then said that, in the 12 December meeting, he left it to Ms Mota to deal with this topic since it was a clinical issue involving a resident’s unplanned transfer to hospital “because it’s something we report, because of the risk of substandard care”. He described Ms Han’s response as creating an “impasse” because she was complaining of being victimised and not focusing on the clinical issue. He said that the allegations raised in the 12 December meeting, to which the 6 February letter referred, were that “[the] resident should have been transferred to hospital … and she [Ms Han] had not acted for eight hours, and the next shift had immediately transferred them to hospital”.
107 Mr Rooke said that this incident (involving Mr Karitatis) “didn’t result in a finding in the final letter”. He said that in the 12 December meeting:
we talked about the behaviour of … the supervisor in the afternoon shift and you [Ms Han] doing exactly the same thing with your supervisor and not seeing that they were the same sets of behaviours that could have resulted in the same sets of outcomes. And that your complaint to us was related on you doing your job and them doing their job, and you finding that when they did the same thing, that they had bullied or harassed you in some way. And when you did the same job, you had actually just undertaken your normal business duties as a registered nurse. And that went in a circle for quite some time. I put it to you a couple of times during the meeting.
(emphasis added)
108 He added that “you [Ms Han] raised it as a concern that someone doing the same job as you was out to get you” and:
I also decided during that process that your complaint about your afternoon supervisor [scil: Ms Pandey] wasn’t founded on them being out to get you with some level of bias because they did exactly the same thing you did. I left that with your manager who said they would follow up with you, and they were okay with the clinical issues that were behind it.
(emphasis added)
109 Mr Rooke said that, from his perspective, Ms Han’s clinical judgment or conduct was not under question in the 12 December meeting.
110 In his nearly contemporaneous notes of the 12 December meeting, that he emailed to Ms Mota, Mr Rooke wrote that he had told Ms Han that the “current investigation was completed properly”. Mr Rooke’s notes recorded:
5. Casey appears delusional and/or paranoid. She is inferring intent into the behaviours if [sic] other staff members. Examples:
a. Someone saw her change to a weekday shift and asked her about it. She assumed that her confidentiality had been breached and that Sharmilla had told everyone that she was on that shift after getting in trouble
b. When the in-charge (Sharmilla) went to help Rebika, Casey assumed she was there to pick on Casey and criticise her work
6. The situation was not improved by an inconclusive investigation into comments about Casey during Sharmilla’s review with Rebika
7. This led to Casey submitting a complaint letter listing every assumes [sic] slight by Sharmilla and asking each item to be investigated and Sharmilla to be reprimanded.
8. SR [Mr Rooke] advised Casey that none of the items were breaches of the code of conduct and that the investigations had all been closed.
9. Casey asked why she got letters about her behaviour and the others did not. SR advised was because Casey called a staff member a ‘bitch’ in a confirmed incident with witnesses and the staff members were accused of asking about some of Casey’s work or suggesting that Casey and others had panicked and none of these were the same as calling someone a ‘bitch’. Also, none of these were substantiated. Meriem read out the key points of her investigation summary confirming these were not substantiated.
10. SR Counselled Casey that she was in a negative space and needed to drop the baggage that was leading her to assume all parties were against her
…
13. Every point made was linked back to people picking on Casey and most point were related back to Sharmilla picking on Casey
…
16. Casey discloses that she does not take breaks (Meriem notes that Casey also does medications instead of her Team Leader for now [sic] reason)
17. SR counselled Casey that she was not coping and needed to look after herself, drop the baggage and let go of the past. Casey denied she had a problem
(emphasis added)
111 I infer that some investigation of Ms Han’s complaint occurred, although there was no evidence of it adduced other than what Mr Rooke said in evidence about what others did and recorded in his notes of the 12 December meeting. I infer that the “complaint letter” to which par 7 of his notes referred was the 1 December complaint. His notes conveyed that, by this time, he had a pejorative view of Ms Han based on his description that she “appears delusional and/or paranoid”. During the hearing, Ms Han demonstrated a degree of doggedness, sometimes verging on obsessiveness, about her perception that the Filipino staff, including Ms Pandey and also Ms Mota, were ganging up on her. That characterisation may have led to Mr Rooke’s description, in his notes of the 12 December meeting, that she appeared “delusional and/or paranoid”. He advised her at that meeting that none of the items in her 1 December complaint was a breach of the code of conduct and, based on what I infer Ms Mota had told him, that the investigations had been closed.
112 Ms Mota explained why she included a reference in the 6 February letter to Ms Han being able to “respond to the allegations, including at our meetings of 12/12/19 … ”. I asked her about the process of investigating the 1 December complaint and she gave the following evidence:
But what were the allegations against her in that meeting? I thought you were there to [give] feedback with her. So what, just what did you understand, when you wrote this letter, the allegations against her in the meeting of 12 December were? --- Let me try to remember. I think we were touching on the subject of the issues that she had raised … particularly about Sharmilla. And going through this investigation process, that some of that information … we weren’t able to substantiate. … yes, I think that was part of the reason why it was almost as if these issues were raised like, it was, like, … almost like Sharmilla was tagged onto the issue of Sia, which was then tagged onto this issue and issue … of [Mr Karitatis] and then also in addition to that, tagged onto the issue of this education session. And she, in some respects … when we investigated, they were not able to be substantiated. So … I guess what we were talking about is taking into account that there were a number of allegations that were also made that were not fairly made, I guess.
Well, is there a difference between an allegation that can’t be substantiated and one that’s not fairly made? --- I guess also … the sense or the feeling that the like, of the other parties as well. I guess that was where - - -
(emphasis added)
113 Ms Mota did not give any substantive answer to the second question above. Ms Mota asserted that she had little memory of the 12 December meeting, even after being taken to Mr Rooke’s minutes. However, when asked why she included the reference to that meeting in her 6 February letter as one in which Ms Han had been given opportunities “to understand and respond to the allegations”, she was keen to paint Ms Han as making unfair allegations against Ms Pandey. Ms Mota said:
we were touching on the subject of the issues that she had raised … particularly about Sharmilla. And going through this investigation process … some of that information … we weren’t able to substantiate.
114 I understood Ms Mota to be saying in that evidence that, because her investigation into the 1 December complaint was “not able to substantiate” Ms Han’s complaints, Ms Mota believed that Ms Han’s complaints “were not fairly made”, and that she took this into account in deciding to terminate her. Because Mr Rooke deferred to the clinical staff on matters involving their expertise and Ms Mota was with him in this meeting, I infer that he relied on her to, and that she did, inform him about her “investigation” and its results of Ms Han’s complaints about clinical matters, including Mr Karitatis’ care.
115 Ms Mota’s “investigation” found no fault with any of the staff about whom Ms Han had made the 1 December complaint. That is also what she found with Ms Han’s later 24 December complaint, as I explain below. I formed considerable misgivings about Ms Mota’s objectivity toward Ms Han in conducting those “investigations” and the adverse conclusions that she relayed to, respectively, Mr Rooke and Ms Darwick about, first, each of the 1 and 24 December complaints and, secondly, Ms Han. The objective material in St Basil’s medical records to which I refer in these reasons gave the concerns that Ms Han raised in her complaints real substance and did not appear to have been considered by Ms Mota or others impartially or with any substantive care. The deep bruising shown in the photo of Mr Arnaoutis’ arm was not even considered until 19 December 2019 when Ms Alcantara perfunctorily dismissed it. Ms Mota’s evidence that I have quoted at [96] brushed off the four deep finger bruises made on his arm as somehow attributable to his falling regularly.
116 I infer that Ms Mota’s views about Ms Han’s 1 December complaint (which it is highly likely they discussed before the meeting) caused Mr Rooke to think, during the 12 December meeting, that, indeed, Ms Han had no real basis for what she was saying and was “delusional and/or paranoid”. This was because Ms Mota is likely to have told him, as confirmed by her evasive evidence about Mr Arnaoutis’ bruising, that Ms Han had no clinical basis for what she asserted.
117 Mr Rooke clearly formed a negative view about Ms Han and her complaints as being “delusional and/or paranoid”, and that she “needed to drop the baggage”. He relied on the investigation that Ms Mota told him that she had undertaken and deferred to her so far as her views involved any clinical judgments.
The events of 15 December 2019
118 What happened next when Ms Han worked, on Sunday, 15 December 2019, provided the catalyst of events that led directly to her employment being terminated.
Ms Han’s account of the events of 15 December 2019
119 Ms Han gave evidence about the events of Sunday, 15 December 2019 that led to the complaint that she emailed to Ms Mota on 24 December 2019. As will appear below, Ms Mota obtained statements from two of the other staff involved the use of which I limited under s 136 of the Evidence Act 1995 (Cth) to evidence of what those staff members had said, but not as evidence of the truth of those statements.
120 Ms Han’s evidence of those events, which follows, is relevant to the circumstances which led to the termination of her employment at St Basil’s.
121 Ms Han said that, first, just before 7:00am on 15 December 2019, when her shift began, she saw a resident, Helen Emvlomas, sitting on the floor in front of room 20 in the east/west wing. She and another care worker began trying to assist Ms Emvlomas when Ms Han saw Von Carlo Agbada in the nurses’ station. Ms Han called out to him “Hi brother, can you give us a hand, help us to lift this lady?”, but Mr Agbada walked away from them towards level 2.
122 Secondly, Ms Han said that Christina Karabatsos, a team leader, reported to her around 11:00am that, during the previous shift, there was no second signatory recorded in the schedule 8 medicine register book for the obtaining and administration to Helen Nicolopoulos of Targin, a drug of addiction for pain relief. Targin was a listed schedule 8 medicine in the poisons and therapeutic goods regulations in force in New South Wales. The one signatory in the register book was that of Ms Lee, the registered nurse on duty on the previous shift. Ms Han reported this in an incident form on Leecare at 12:45pm on 15 December 2019, as she understood was necessary under St Basil’s policy for schedule 8 substances (the Targin incident report). That policy also repeated the requirements set out in item 24 of the procedural framework policy (see [36] above). Ms Han noted that that policy reflected the requirement in those regulations that persons authorised to be in possession of schedule 8 substances notify the Director-General of Health of any loss or theft of such substances. It follows that Ms Han was reporting a substantive error under both the legal requirements governing dispensation of schedule 8 substances and St Basil’s procedural framework policy by the registered nurse on duty on the previous shift.
123 Thirdly, Ms Han said that, around 1:30pm, during the lunch break for some staff, other staff were doing rounds helping residents with toileting and transferring them into bed. Ms Han was continually occupied with her duties, as well as answering buzzer calls for assistance and was not able to have a lunch break. She responded to a call in the east/west wing by Ms Jones to help Ms Kalantzis to the toilet. Ms Jones complained to Ms Han that there had been no improvement in her mother’s treatment since their discussion on 16 November 2019 (see [91] above).
124 At about 2:00pm, while she was attending Ms Jones and her mother, Ms Young phoned Ms Han and informed her that Helen Toliopoulos’ oxygen level saturation (SPO2) was 87%. Ms Han told Ms Young that she was with Ms Kalantzis and her daughter but would come to level 1 immediately and that Ms Toliopoulos may need to be transferred to hospital. She asked Ms Young to apply oxygen to Ms Toliopoulos and inform the doctor and her family. Ms Young phoned Ms Han back within about a minute and told her to call Dr Malik. Ms Han then spoke to Dr Malik and ran down to level 1, which as I noted earlier, is about a five minute walk away from the east/west wing. When Ms Han arrived, Ms Young was not with Ms Toliopoulos. Ms Han assessed the resident’s condition as stable, then phoned Ms Toliopoulos’ daughter, Anastasia, and Dr Malik again. Anastasia and Dr Malik told Ms Han that, according to Ms Toliopoulos’ advanced care directive and the family’s wishes, she was to be treated at the nursing home and not transferred to hospital. Dr Malik instructed Ms Han that Ms Toliopoulos should be administered oxygen.
125 At around 2:15pm, when she was back on level 1, Ms Han spoke to Ms Young in the lounge room in the presence of a recreational activity officer, Spiroula Kakias, to update her about Dr Malik’s orders. She asked Ms Young to administer oxygen to Ms Toliopoulos while she made her way to level 1 from the east/west wing. Ms Young replied that she had finished work and needed to go home. Ms Young would not let Ms Han talk and repeatedly told Ms Han that she could not administer the oxygen because she had finished work and was going home. While Ms Young was speaking (or to) Ms Han, Ms Kakias eventually intervened saying “Casey just called doctor and wants to tell you what doctor said”. After this, Ms Han went to Ms Toliopoulos’ room and administered oxygen to her and, at around 2:30pm, Ms Han checked her vital signs, found them to be normal and, as the vital signs records confirmed, her SPO2 was by then 95% having been 87% when Ms Young had taken them at around 2:00pm.
Ms Toliopoulos’ medical records for 15 and 16 December 2019
126 Ms Toliopoulos’ medical records had the following entries for 15 and 16 December 2019:
her vital signs records for 15 and 16 December 2019 showed:
her Leecare entries were:
• at 13:45, Ms Young recorded that “All care needs attended by staff” and “Due medication given as charted, witnessed by other staff + drink supplement”. She wrote that Ms Toliopoulos had spat out food at lunchtime and not eaten anything. Notably, this entry did not refer to the SPO2 87% reading taken at 13:00 and entered in the vital signs records;
• next, however, at 14:26, Ms Young added the following comment:
Consumer oxygen level 87% when checked, reported to RN,
Contacted LMO [local medical officer] re Consumer that she is not feeling well. Informed LMO regarding Helen condition that she did not eating and very drowsy … Call Casey to checked on the Consumer but she said that she was busy talking with other relatives
(errors in original)
• at 14:52, Ms Han recorded that, when contacted, Anastasia asked that her mother be treated in the nursing home and, after Dr Malik was informed, she directed that the resident receive two litres of oxygen and be kept comfortable. The doctor said that there was “no need [for] analgesia such [as] morphine to be ordered at this stage”. Ms Han recorded that, after receiving oxygen, Ms Toliopoulos was settled and not in any apparent distress;
• at 15:10, Ms Han made a further entry that the team leader (scil: Ms Young) had reported that Ms Toliopoulos had low SPO2 and was unable to take anything orally, but all her other vital signs were stable. Her note then reflected most of the 14:52 note, but added, at the end, that Dr Malik had requested to be contacted if the resident’s condition changed;
• at 15:13, Ms Han added a copy of the vital signs, being those taken at 14:30 in the vital signs records, including that Ms Toliopoulos’ SPO2 then was 95%;
• at 19:39, the enrolled nurse on duty recorded Ms Toliopoulos’ vital signs from the vital signs records;
• at 22:12, the registered nurse on duty recorded that Ms Toliopoulos was “still on oxygen via nasal prongs”, her vital signs were stable and the local medical officer had been informed; and
• the next entry was only made on 16 November 2019 at 09:21 by the aged care worker on duty. This recorded Ms Toliopoulos’ vital signs from the vital signs records and noted that she was receiving two litres of oxygen per minute via nasal prongs.
127 There was no record of, or any observation or taking of vital signs from, Ms Toliopoulos for over 11 hours between 22:12 on 15 December 2019 and 09:21 on the next day, by which time her pulse was 105 beats and breaths 40 per minute which were both entered in red on the vital signs records. The registered nurse on duty recorded in Leecare, at 10:08 on 16 December 2019, that Ms Toliopoulos had lost consciousness.
128 Ms Toliopoulos passed away on 19 December 2019.
Ms Han’s complaint on 24 December 2019
129 On 24 December 2019, Ms Han emailed Ms Mota and made two complaints about the lack of teamwork that she said she had experienced in her shift on Sunday, 15 December 2019 (the 24 December complaint). That turned out to have been her last day working at St Basil’s. First, she wrote that, when she began her shift at around 7:00am, she saw a resident (Ms Emvlomas) sitting in the corridor in the east/west wing on the floor in front of room 20. She wrote that, while she and another staff member were trying to assist the resident, she saw Mr Agbada in the nurses’ station, waved to him and called out “hey brother can you please give us help?” She wrote that he waved back to her but then walked away towards level 2. Secondly, she complained:
Helen Toliopoulos’ condition deteriorating. after spoke to NOK [next of kin] and LMO Dr Malik. I went to L1 to ask the T/L [team leader] to help put O2 [oxygen] on the consumer. the T/L refused loudly “no I can’t. I finished work and I need to go home.” I looked the clock and noticed It was not yet 1430hrs at that moment. RN [registered nurse] tried to tell the T/L about doctors instructions. she did not want to listen and cut off the RN multiple times. it was witnessed by another staff member (RAO [recreational activity officer] in L1).
Please investigate.
(errors in original; emphasis added)
130 On 30 December 2019, Ms Mota phoned Ms Han and asked to whom she was referring in the complaint. Shortly after this, Ms Mota emailed Ms Han confirming that, in their conversation, Ms Han identified the team leader as Ms Young and the recreational activity officer as Ms Kakias.
131 On 2 January 2020, Ms Mota phoned Ms Han and asked her to attend a meeting with herself and Ms Darwich on 6 January 2020. Ms Han told Ms Mota that she was on annual leave and planned to return to work at the end of January. At this stage, Ms Mota said that she had not done anything to investigate Ms Han’s complaints about Mr Agbada or Ms Young.
132 On 9 January 2020, Ms Young wrote a note that said she had checked Ms Toliopoulos’ vital signs at 11:00am on 15 December 2019. She said then that her SPO2 was 87% and that she contacted the registered nurse on duty (viz. Ms Han):
but no answer, continued to monitor the consumer. Several times I tried to contact RN but no answer. Contacted RN on level 2 and reported about the condition of consumer and told her that if she see Casey to inform her to check the consumer. At around 1330 RN (Casey) contacted.
133 I note that Ms Young’s assertion of the SPO2 being 87% at 11:00am was manifestly wrong since Ms Toliopoulos’ vital signs records showed her SPO2 then was 92%. Moreover, Ms Young’s own records in Leecare did not corroborate anything about this aspect of her account, which portrayed Ms Han as uncontactable for 2.5 hours and so neglectful that the other registered nurse had to be contacted. Rather, Ms Young or someone else took Ms Toliopoulos’ vital signs at 1:00pm and 2:00pm and, on each occasion, recorded in the vital signs records that her SPO2 was 87%.
134 Ms Young’s note continued by asserting (contrary to the Leecare record that she made at 14:26 of this occurring after her 13:45 record that, as at then, “All care needs attended by staff”) that she had reported to Ms Han at about 13:30 on Ms Toliopoulos’ condition:
but without checking [the condition of] the consumer RN instructed to call after hour doctor. I told her I will contact Helen’s LMO. Contacted LMO and informed about the condition of consumer. Dr Malik told me that she will give telephone order. I told her that I’m not allowed to get that order. LMO told me to tell Casey to call her. Immediately told to RN Casey.
(emphasis added)
135 Ms Young then wrote that she believed it was the registered nurses’ duty to check an unwell patient. She wrote that, at around 14:25 (again contrary to her own Leecare recording), Ms Han came down to level 1 and:
I was attending to one of the consumer[s], when she told me in a raised voice that she will give me handover which, I believed that she supposed to give to the incoming staff, but then I listened to the handover.
At around 14:35, RN told me to give the O2 [oxygen], since I have appointment on that day, if possible, I ask other staff to help her which she aggreed. I went home with sobbing feelings and very upset the way she treated me. I felt that I am being bullied by her (RN). I felt that I did not get the support during that time.
(errors in original; emphasis added)
136 Also on 9 January 2020, Ms Mota spoke to Ms Kakias (who then was on leave) and made a note of the conversation. Ms Kakias said that she vaguely remembered:
Casey telling T/L what the doctor wanted and I didn’t know why T/L was not listening to her. She spent about 10 min[utes] explaining to her about the O2 [oxygen]. I can’t remember all the details but the T/L kept refusing saying I can’t do it and it’s time for me to go etc.
(emphasis added)
137 On 10 January 2020, Ms Kakias returned to work and Ms Mota took a further statement from her. Ms Kakias said that she did not see Ms Han on level 1 until about 2:15pm to 2:20pm. She said that Ms Han then spoke to Ms Young in the lounge room and said “I just spoke to the [doctor]” and:
was trying to tell her [Ms Young] that the Dr wants her [Ms Toliopoulos] to have O2 and she wanted her to put the O2 on her. Casey was stressed that day and had a lot to do, all she kept trying to explain to her is to put the O2 because this is what the GP want. Charito would not listen to her, she kept saying I’m not doing it and it’s almost time for me to go but it wasn’t yet 2:30pm. She didn’t let Casey talk and was cutting her off, in the end I think Casey did it.
(emphasis added)
138 Ms Mota gave the following evidence in chief, which I do not accept. As I explain below, any cursory look at Ms Toliopoulos’ vital signs records and Leecare entries for 15 and 16 December 2019 does not support Ms Young’s account of Ms Toliopoulos’ condition or her allegations about Ms Han’s lengthy inattention for over 2.5 hours:
Now, Ms Mota, from 30 December, once you had sent that email to Ms Wei Han, … what essentially did you do from there about this matter? --- So, of course, just like, due process, when someone raises a concern we need to investigate. So the investigations … for both of these incidences were about looking at interviewing the staff, getting some statements from the staff, looking at the condition of Helen, having a look on Leecare. I’m … pretty sure I remember, sort of, looking at Leecare. And then yes, and … just, sort of, gathering … that information to give me an idea of what happened and why that, or and what, happened in these incidences.
(emphasis added)
139 Ms Mota’s evidence was that she understood that Ms Young had refused even to get the oxygen equipment to Ms Toliopoulos in order to assist Ms Han. Ms Mota said, however, that when Ms Young brought her note to her, she reported that “she was really stressed … she was a little bit, like, disagreeable with RN, but she just felt like, during the shift, she felt helpless because a resident was deteriorating and she didn’t feel supported”. Ms Mota did not suggest that Ms Young had done anything inappropriate.
140 Ms Han cross-examined Ms Mota on the basis of the Leecare entries that Ms Young had made, including that at 13:45 on 15 December 2019 that “All care needs attended by staff”. Ms Mota agreed that that entry indicated that Ms Toliopoulos’ condition at that time was stable and, even if unwell, not life-threatening because she was able to take her medication and drink a supplement. Ms Mota accepted in cross-examination that the Leecare entries showed that only after 13:45 did Ms Young report to Ms Han that Ms Toliopoulos had an SPO2 reading of 87%. She agreed that, by 14:30, Ms Toliopoulos’ vital signs records showed that her SPO2 level had improved to 95% and other signs were normal.
141 Again, I note that Ms Young’s note was obviously inconsistent with her own Leecare entries that she made at 13:45 and 14:26. In the 13:45 entry, she made no reference to Ms Toliopoulos having an SPO2 of 87% for the previous 45 minutes or of attempting to contract Ms Han. It was only just before the end of her shift, at 14:26, that she recorded the SPO2 of 87% and of contacting Dr Malik and Ms Han. Clearly, by the latter time, Ms Han had attended Ms Toliopoulos and applied oxygen to her to ameliorate the SPO2 to 95% by 14:30. Ms Young did not suggest in her note that she did not have the qualifications, knowledge or ability to administer oxygen, but instead said that she was too busy because she was off to an appointment and Ms Han only asked her at 14:35, well after the time in the objective material in the records.
142 Moreover, when Ms Han took Ms Mota to the 14 hour period between the last vital sign record taken at 19:00 on 15 December 2019 and the next such record at 09:21 on 16 December 2019 when no vital signs were taken for Ms Toliopoulos, Ms Mota prevaricated saying “I guess there should have been some more vital signs taken”. She added in her next answer “admittedly, people don’t always have the opportunity to document”, before conceding to Ms Han that if, as was pellucid, there was no documentation of vital signs or observations for the length of time following Ms Han’s last shift, “that means no care provided” (emphasis added). Ms Han then drew out this evidence:
we’re talking about 14 hours, whole night no one attending this resident and you go further from 16 December until the end the resident the vital signs deteriorating, yes? And then until she dies. … I think this resident passed away on 19 December? --- Yes. A few days later.
So when I finish work at 3 o’clock, three to four hours later, 7 pm this resident condition is stable according to this; correct? --- With oxygen on. Yes.
…
As a manager or if I was managing, I’m a registered nurse, I would [have] concern about this shift. The whole shift, what the staff have done for this resident. What kind of care they provide; correct? --- Yes. If there’s no documentation.
Are you concerned? --- Yes.
Especially this resident from 16 December 2019 her condition vital signs just deteriorating until she dies three days later? --- Yes.
Yes. You’re concerned? --- Yes.
So you take any action against for this my shift - - -? --- I wasn’t - - -
Registered nurse? --- I wasn’t aware of this.
(emphasis added)
143 Ms Mota’s assertion that she was not aware of what Ms Toliopoulos’ Leecare entries and vital signs records showed in the period following Ms Han’s shift raises real issues about whether Ms Mota looked at those records at all or with any care. That is because all of Ms Toliopoulos’ vital signs for the period between 6 November 2019 to 18 December 2019 were on the one page comprising 13 lines, that is depicted at [126] above, and the Leecare entries for 14 December and up to 10:08 on 16 December were on four pages.
144 Ms Mota also asserted that “I had a look at Helen Toliopoulos’ file, but I guess my focus was on the issue at hand, which was that she [Ms Han] had an issue with the way in which the team leader was responding to her”. That assertion was inconsistent with Ms Mota’s assertion in her 6 February letter that her “thorough investigation process” had “found” that Ms Han had failed to provide the necessary care to Ms Toliopoulos. When I asked Ms Mota about that claim, she responded that Ms Han had not “come to eyeball the resident to do an assessment” between 11:00am, when, as she said, Ms Han’s statement recorded that she was made aware that the resident looked unwell, and 2:00pm. However, Ms Han’s statement also said that she had asked that the team leader attend Ms Toliopoulos and do a set of observations, after which “T/L [team leader] called me after 1100hrs and told me Helen’s vital signs stable, she took medication and tolerated oral intake at breakfast time”. Ms Han’s statement went on to say that she asked the team leader (namely, Ms Young) to continue monitoring and report any changes. The vital signs records showed Ms Toliopoulos’ SPO2 level at 11:00 was 92%.
145 After more prevarication, Ms Mota accepted that what Ms Han did reflected normal and correct procedure and there was no issue suggested in the vital signs records, including Ms Toliopoulos’ SPO2 levels, at 11:00am, and Ms Young’s reporting in Leecare that would alert a registered nurse in Ms Han’s position that it was necessary for her to attend Ms Toliopoulos.
146 Also on 10 January 2020, Mr Agbada emailed Ms Mota with his explanation. He wrote that his shift ended at 7:15am on 15 December 2019 and, about then, he went past the nurses’ station for a minute to check his phone. He wrote, bizarrely:
After going out, AM RN in E/W [Ms Han] said that she was waving at me and was asking for help about a consumer that time when I was inside the nurse’s station. I replied that I did not notice her waving at me at the left side of the station as my eyes were focused on my phone. I told her that I was truly sorry for what happened.
(emphasis added)
147 It is difficult to understand how Mr Agbada, in the same breath, could have replied that he did not notice, but then apologised to, Ms Han and yet did nothing to help her attend to a resident who was sitting in the corridor. His account seemed to corroborate Ms Han’s that he saw and ignored her.
148 Ms Mota gave this evidence of what she wanted to assert as her understanding of Mr Agbada’s acknowledged behaviour:
I just think he felt that it was just sort of a misinterpretation of an issue … I don’t think he felt that there was an issue. He was apologetic. He said, “if she was, you know, Casey was calling out for help and I didn’t hear her, honestly”. He said, “Look, I’ve just finished a nightshift”. … I think he even said he had his earphones in. He was ready to … he’s clocking off and it just so happens that where they clock off at from a shift is actually just opposite the nursing station in east/west, which is the section that Casey works. So I don’t believe he had any intention not to support and I’ve never had any issues with Von and teamwork. So I think it was and even in the letter, he was apologetic. You know, “This was not what I intended on, you know, … it wasn’t my intention to make her feel like she wasn’t supported”, I guess.
(emphasis added)
149 Thus, each of Ms Young’s, Ms Kakias’ and Mr Agbada’s written accounts that Ms Mota received on any fair reading supported what Ms Han asserted in the 24 December complaint about a lack of teamwork or support for her. Ms Mota’s assertion that she had “never had any issues with Von and teamwork” had an air of unreality when she asserted that, in his email, he was apologetic. His account was incredible, because in it he said that he apologised at the time to Ms Han but never explained how, if he did, he failed to help her with a resident lying on the floor.
150 As Ms Mota acknowledged, it would have been a significant issue for a nurse not to respond to another nurse and to leave a resident, who had appeared to have had a fall in a corridor, without assisting. Ms Mota accepted that she had hired Mr Agbada but denied that she decided to accept his version of this conduct because he was Filipino.
151 Mr Agbada’s note and manner of expression made manifest that English was not his first language and he had some difficulty in clearly expressing in English what he had to say. However, his response that he was looking at his phone, did not see Ms Han, or the resident seated in the corridor, and then replied and apologised to Ms Han for not seeing her was not coherent. Leaving a resident still on the floor and ignoring Ms Han’s request to help lift her does not seem to fall within the concept of an intelligible contemporaneous acknowledgment or apology or to involve conduct that an unbiased person in Ms Mota’s position could fail to think raised, at least, a real issue of unacceptable behaviour. Yet, Ms Mota decided then to put Ms Han, not Mr Agbada, into the line of fire.
152 On the basis of all the evidence, including what she said in the witness box, Ms Mota was not a reliable witness or a person whose uncorroborated evidence on a contentious matter should be accepted. She turned an investigation of Ms Han’s 24 December complaint into a trumped up attack on Ms Han which Ms Mota then provided orally to Ms Darwich. The latter accepted Ms Mota’s unfavourable assessment of Ms Han’s conduct at face value without doing any investigation of her own. Ms Mota knew that Ms Han was on a first and final warning and, based on Ms Darwich’s combative and critical attitude toward Ms Han, both when giving evidence and in her contemporaneous conduct, I infer that Ms Mota knew or believed that, after the incident with Ms Bangao, Ms Darwich was unsympathetic towards Ms Han. And, Ms Mota knew that Mr Rooke viewed Ms Han as “delusional and/or paranoid”.
153 As I have found above, Ms Mota brushed off Ms Han’s 24 December complaint even though they had substance and, instead, diverted attention from the questionable behaviour of her two fellow Filipino staff, Mr Agbada and Ms Young, to attempt to connect Ms Han to a serious deterioration in Ms Toliopoulos’ condition through lack of care, when that allegation had no proper basis.
154 Ms Mota’s evidence as a whole did not negate, indeed has reinforced, the presumption in s 361(1) that she took, or participated in, the adverse action of terminating Ms Han’s employment for the proscribed reasons in issue, namely because Ms Han had exercised her workplace right to complain in relation to her employment and or to discriminate against her because she was Chinese.
Ms Mota turns the tables on Ms Han
155 On 13 January 2020, Ms Mota wrote to Ms Han in the following terms (the 13 January letter):
Dear Wei Han (Casey),
RE: Invitation to attend and [sic] outcomes meeting:
You are required to attend an outcomes meeting with Meriem Mota (GM) and Sonya Darwich (DOC) on Thursday 16/01/2020 at 1300hrs in the DOC office at Lakemba.
The purpose of this meeting is to discuss the recent escalating concerns in relation to;
1) Your Professional role in relation to your job description as a Registered Nurse and quality of clinical care being provided to our consumers of St Basil’s.
You are entitled to bring a support person with you to this fact-finding meeting. Please refer to the information on the role of the support person on the next page.
(emphasis added)
156 I reject Ms Mota’s assertion that, by the time she sent this letter, “we … actually did a fair investigation of what … had occurred”. Like her two letters of 12 August 2019, Ms Mota was not inclined to let Ms Han know why she was now being accused of “escalating concerns”. When asked in chief why her letter had not included any particulars, even though this was her first substantive response to Ms Han’s 24 December complaint, she said:
we tried to give an opportunity for her to tell us her side and then, that way, we can sort of figure out where we were at. So when we went to meet with her, that was going to be the opportunity that we could actually hear … what actually occurred on her side of the story. Because her email, the original email, was quite brief, and then the investigation identified a number of things that I was concerned about.
(emphasis added)
157 I then asked her what she meant in the letter about an “escalating concern” about Ms Han’s conduct as the reason requiring her to come to a meeting, given that, in their accounts, Ms Young and Ms Kakias corroborated Ms Han on Ms Young’s refusal to put oxygen on a patient and Mr Agbada corroborated her on his ignoring her request for assistance. She said:
whenever there was an issue raised by Casey, I always wanted to make sure that I gave her an opportunity to … give her side. … Even though … there was an issue … when I found out about Charito and she said to me, “Maybe I was short”, or etcetera, in that conversation I also remember saying to Charito, “But, you know, you … report to the registered nurse. You shouldn’t be talking to her that way.” And that was a very pretty much, an informal discussion. The reason … why it was is because I took into consideration … the history of the staff member, so Von’s history. There was no performance issues with Von and same with Charito. So … , that’s why I wanted to make sure that, you know - - -
But I’m just not following, then, in relation to you … writing to Ms Han on 13 January and saying: “The purpose of this meeting is to discuss recent escalating concerns in relation to your professional role, in relation to your job description as a registered nurse quality of clinical care being provided to our consumers at St Basils.”? --- So that would have been in relation to the oxygen. Yes.
(emphasis added)
158 Ms Mota had no explanation why there was no reference to the oxygen (or any other) issue in her 13 January letter.
159 When Ms Mota set up the meeting for 16 January 2020, Ms Darwich assumed that Ms Han already had attended a fact-finding meeting because Ms Han was being invited to an outcomes meeting. Ms Darwich asserted, incorrectly, that “this is a follow on from the fact-finding” meeting which she thought Ms Han had attended with Mr Rooke and Ms Mota in mid December 2019 (ie. the 12 December meeting). Ms Darwich did not remember the detail relating to how the January 2020 meeting was called or what process, if any, Ms Han had been given, hence her assumption. She understood that the process was that (as was supposed to occur under the counselling and discipline policy (see [33] above)) a person being investigated would be suspended, next brought in for a fact-finding meeting and then required to attend an outcomes meeting, such as that contemplated in the 13 January letter. When Ms Mota arranged the meeting for 16 January 2020, Ms Darwich understood that its purpose was to “sit with [Ms Han] and obtain her feedback in relation to the incidents that had occurred … in relation to Helen [Toliopoulos] and her role as a registered nurse”. However, Ms Darwich agreed that the 13 January letter was contentless in relation to informing Ms Han of what was going to be discussed about “escalating concerns” relating to her.
160 I am not satisfied that Mr Rooke had any role in relation to St Basil’s sending Ms Han the 13 January letter (or, as I explain below, in her termination prior to his settling the terms of the 6 February letter). Mr Rooke said that he had reviewed the “information pack” that consisted of statements from staff members that Ms Mota and Ms Darwich had prepared. He said that he provided guidance to Ms Mota and Ms Darwich to help them make the form of their letters clearer. But, had he been consulted on the draft of the 13 January letter, his guidance obviously was ineffective. He said in chief that “My role was solely to look at the results of the process as presented to me by the managers”. He agreed that the 13 January letter did not disclose what the complaint against Ms Han was or what she was supposed to answer. He said that an employee receiving such a contentless letter may be very reluctant to come to the meeting.
161 As I have explained, I am satisfied by Mr Rooke’s evidence that, had he been shown a draft of the 13 January letter, he would not have allowed it to be sent because he appreciated that it was contentless and provided Ms Han with no particulars about the unspecified “recent escalating concerns” as to her professional role. The form of that letter did not adhere to what he told Ms Mota to do in sending such communications in his review of her 12 August 2019 letters to Ms Han, the aborted outcome of the 14 August meeting and her more detailed letter of 21 August 2019, that Mr Rooke settled, namely the “usual practice” being to “spell out what was to be discussed” (see [33] and [51] above). Hence, I do not believe that he, or any human resources officer at St Basil’s, was involved in drafting the 13 January letter.
162 I do not accept Ms Mota’s evidence that, before she sent the 13 January letter, she had the human resources team review her draft. First, had she given it to the human resources team, or Mr Rooke as its head, that would have led to amendments because it failed to conform with the requirements of the counselling and discipline policy, including that, where arranging a disciplinary interview, the staff member “must be given advance notice of the meeting and the allegations or concerns that will be discussed. Any relevant data and witness statements need to be attached to the notice of meeting” (emphasis added) (see [33] above). Secondly, Ms Mota already knew of this requirement and how to draft such letters at latest from Mr Rooke’s intervention on 14 August 2019 which resulted in Ms Mota sending her letter of 21 August 2019 (see [56] above).
163 The 13 January letter reflected Ms Mota’s history of giving Ms Han no pre-warning of what she would have to confront unless directed by Mr Rooke. Its drafting is in stark contrast with the clear appreciation that each of Ms Young and Mr Agbada understood what she and he was being asked to report on that Ms Mota obtained from them in their notes. Those notes show also that she had apprised her fellow Filipinos of the detail of Ms Han’s complaints before they responded.
164 Ms Han, who was then on annual leave, felt stressed and upset when she received the 13 January letter. She was due to return to work on 18 January 2020. On Tuesday, 14 January 2020, she emailed Ms Mota informing her that she was not in Sydney and could not attend the meeting on 16 January 2020. She asked for the meeting to be rescheduled to 23 January 2020.
165 At 9:32am on 16 January 2020, because she had not received any response, Ms Han emailed Ms Mota asking again for the meeting to be postponed. Ms Han was then very anxious.
166 Next, at about 12:30pm on 17 January 2020, Ms Darwich phoned Ms Han, who did not answer because she felt stressed. Ms Darwich left a message asking her to return the call. Ms Han then visited her doctor and obtained a medical certificate that stated she was unfit for work on 16 and 17 January 2020. She said that her blood pressure was too high and she was unwell.
167 Ms Darwich called again at about 4:45pm and Ms Han again did not answer. Then, at 8:22pm on 17 January 2020, Ms Darwich called Ms Han for the third time that day. Ms Han rang back at 8:41pm. Ms Darwich did not pick up but immediately phoned back and Ms Han answered this call. Ms Darwich asked why she had not returned her earlier calls. Ms Han told her that she was not well to which Ms Darwich replied that if she was unwell, whether she could go to work the next day. Ms Han said that she was trying to get more sleep to recover and be able to go to work. At that point, Ms Darwich told her that she was suspended and should not come to work the next day.
168 Ms Darwich did not explain to Ms Han why she was suspended other than saying that the suspension was “pending investigation” and Ms Han would be paid.
169 I do not accept Ms Darwich’s evidence that she told Ms Han that the reason for the suspension “was in relation to the clinical care of a resident at Lakemba. That’s all I told her”. That assertion, albeit opaque, was inconsistent with the approach that both Ms Darwich and Ms Mota had taken in dealing with Ms Han in writing before their meeting on 23 January 2020, which was to assert that Ms Han had something serious to address, but gave her no clue what it was. She was treated differently to the other employees involved in St Basil’s investigations both of the incident on 4 August 2019 with Ms Bangao and in relation to her 24 December complaint. Each of the other staff was told, and asked to give a response about, the issues concerning Ms Han before any of them who were asked attended an interview with Ms Mota.
170 I also accept Ms Han’s evidence that, on 17 January 2020, she was scared that Ms Darwich was calling her after she had complained on 24 December 2019 about Ms Young. That is consistent with St Basil’s failure to inform her in its 13 January letter or otherwise of the purpose of the “outcomes” meeting or anything about what “escalating concerns” it had concerning her professional role. St Basil’s deliberate opacity about any issue that Ms Han would have to deal with at the 23 January 2020 meeting was reinforced by the letter that Ms Mota attached to an email sent to Ms Han, on Ms Darwich’s instructions, at 3:44pm on 20 January 2020 (the 20 January letter), about which Ms Mota said in the covering email: “Please review the [attached] letter as per discussion with Sonya Darwich on Friday 17th Jan 2020”. The 20 January letter stated nothing about what Ms Han was supposed to deal with and said relevantly:
PRIVATE + CONFIDENTIAL
RE: Suspension of duties
As discussed with Sonya DOC on Friday 17th Jan 2020 you have been suspended from full duties effective immediately in relation to the serious nature of the allegations made against [sic] which find you in breach of the St Basil’s Employee Position Description.
Once further investigation is completed you will be required to attend a meeting to discuss the outcome of the investigation. You may be required to respond to the allegations at this meeting.
If you require counselling on this matter …
(emphasis added)
171 Next, at 4:22pm on 21 January 2020, Ms Mota emailed Ms Han attaching a letter that required her to attend an outcomes meeting on 23 January 2020 (the 21 January letter). Apart from the rescheduled meeting, the first two paragraphs repeated the contentless assertion of “recent escalating concerns” in the 13 January letter (without repeating the assertion “the serious nature of the allegations against [you]” in the 20 January 2020 letter) but added the following:
An outcome of this meeting may result in disciplinary action, up to and including termination of employment. You may also wish to bring a support person with you to accompany you at the meeting. …
(emphasis added)
172 Once again, St Basil’s gave Ms Han no clue as to what they were going to discuss at the “outcomes” meeting, including how that that could lead to any disciplinary action up to termination of her employment. However, while the manifest unfairness of this process, or perhaps more accurately, lack of process, is not the subject of Ms Han’s claims, it reveals the high handed, hostile way in which Ms Mota and Ms Darwich treated her. Because I accept Mr Rooke’s evidence that he counselled Ms Mota (and Ms Darwich) against sending letters of this kind without giving the recipient fair notice of what he or she would need to answer or explain, I am satisfied that, first, his only involvement in Ms Han’s termination occurred after the meeting of 23 January 2020 and, secondly, he reviewed the 6 February letter based on the account of it and the allegations involving Ms Han that Ms Darwich and Ms Mota later gave him.
173 Ms Mota could give no explanation when asked in chief why her 21 January letter made no mention of any concern about oxygen, even though, as she said in chief, that to this stage she had had no substantive engagement with Ms Han about the matter. I do not accept the following evidence Ms Mota gave about Mr Rooke or the human resources team having any involvement in her letters of 13, 20 and 21 January 2020:
I think in … between, I obviously had some liaison with our director of care and our HR [human resources] team. We talked about some of the findings that we had and … as I mentioned earlier, these letters are written up and reviewed by HR before I send them out, so I did them, sort of, like, following the instruction as per our HR team.
(emphasis added)
174 At 12:20pm on Wednesday, 22 January 2020, Ms Mota sent a text message to Ms Han saying that she had sent two emails since Monday and asking Ms Han to confirm that she would attend the meeting on the following day. Ms Han promptly replied that she would.
Late additions to Ms Han’s incident forms
175 In the period before her termination, staff at St Basil’s seemed to have belatedly followed up some of the complaints that Ms Han had made, which bore on the documentary trial as it would appear to anyone looking at it, by 23 January 2020 and the ‘resolution’ of Ms Han’s complaints as, effectively, without substance.
176 On 16 December 2019, Ms Alcantara altered the heading in the Targin incident report from ‘Medication incident type’ to ‘Details regarding the incident whether a general or medication incident’. She wrote that the registered nurse in charge in the afternoon shift had checked with the night shift registered nurse if the medication had been given, the latter said that it had and was “witnessed by staff”. Ms Alcantara wrote “Discussed and spoke with RN involved to ensure that given medication is always ticked”. In the evaluation entry line, Ms Alcantara wrote that the medication had been administered “nil incident noted. Mistake of documentation noted”. Later, on 6 January 2020, Ms Alcantara wrote that the incident had been resolved and, on 16 January 2020, created the version of the Targin incident report in evidence that set out the details above, together with Ms Han’s report of 15 December 2019.
177 On 19 December 2019, as I have noted at [95] above, Ms Alcantara “resolved” Ms Han’s incident form made on 23 November 2019 of the bruising on Mr Arnaoutis’ arm. On 19 January 2020, Ms Mota created a copy of this incident report that Ms Alcantara had “resolved on 19 December 2019”. I infer that Ms Mota did this in the course of her decision-making to terminate Ms Han’s employment and that she saw that Ms Han’s complaint in this “resolved” form.
The 23 January 2020 meeting
178 On 22 January 2020, Ms Han prepared a letter addressed to “the manager” that she gave to Ms Darwich at the beginning of the meeting with her and Ms Mota on 23 January 2020 (Ms Han’s 22 January letter). She prepared this because she was worried. Ms Han’s 22 January letter stated that, on 15 December 2019:
before 11:00am, a recreational activity officer phoned Ms Han and told her that Ms Toliopoulos looked unwell. Ms Han instructed her to inform the team leader, prepare a set of vital signs and then let Ms Han know the results. Ms Young called Ms Han after 11:00am and informed her that Ms Toliopoulos’ vital signs were stable, she was sleeping, had her medication and had tolerated oral intake at breakfast. Ms Han told Ms Young to continue monitoring Ms Toliopoulos and report any changes in her condition;
at about 1:45pm, Ms Young phoned Ms Han and told her that Ms Toliopoulos had an SPO2 of 87% and had not taken anything orally at lunch. Ms Han told her that the resident may need to go to hospital, asked Ms Young to give her oxygen and to inform the doctor and family about Ms Toliopoulos’ condition. Ms Han said that she was with a relative of another resident but would come down to level 1 soon. Ms Darwich wrote and circled “1” against this passage;
Ms Young phoned Ms Han back a couple of minutes later and told her that Dr Malik wanted her to call. Ms Han phoned the doctor and, while waiting for her to respond, checked Ms Toliopoulos’ progress notes on Leecare (which she could access on her phone). Ms Han informed Dr Malik of the vital signs taken at 11:00am and, based on Ms Young’s Leecare entry at 13:45, Ms Toliopoulos had taken her medication and supplement at lunch, which Ms Han noted was different to what Ms Young had just told her on the phone (see [124] and [126] above). Dr Malik asked Ms Han to check whether Ms Toliopoulos should be transferred to hospital. Ms Han then said that she would check Ms Toliopoulos’ advanced care directive and call back. After she rang level 1 and no one answered, she ran down to level 1. She could not find Ms Young. Ms Han said that the recreational activity officer (who appears to have been Ms Kakias) told her that Ms Young had taken her lunch break. Ms Han assessed Ms Toliopoulos who was sleeping and did not appear distressed. She wrote that she did not have her key with her and could not open the treatment room, so she ran back to the east/west wing to get it. She encountered the level 2 registered nurse who helped her get Ms Toliopoulos’ details. Ms Han then contacted Ms Toliopoulos’ daughter who told her that she (Ms Toliopoulos) should be treated at Lakemba as required by the advanced care directive. Ms Han then phoned Dr Malik and reported what she had done and learned. Ms Darwich wrote and circled “2” against Ms Han’s recording that she asked the doctor to chart some medication for pain management, such as morphine, but the doctor said that this was not necessary at that stage;
next, Ms Han wrote that she returned to level 1 to update Ms Young about Dr Malik’s instructions, but Ms Young “refused to listen to me and doctor’s instructions and said ‘I finished work and I need to go home’”. Ms Han tried to remonstrate with Ms Young multiple times but Ms Young kept talking and would not let Ms Han speak. This occurred in Ms Kakias’ presence, who said “firmly” to Ms Young that Ms Han “just spoke to the doctor and want to tell you what doctor said”. Ms Han said that Ms Young then allowed her to talk. She told Ms Young that she needed to update her as she (Ms Young) would be working on level 1 during the following week. Ms Han told her that she had contacted both Ms Toliopoulos’ next of kin and Dr Malik. She said that the resident would not be transferred to hospital, the doctor had instructed that she be given oxygen and asked “Can you please help to put O2 on her?”. Ms Han said that Ms Young spoke a few words to Ms Kakias and left. Ms Han said she then administered oxygen to Ms Toliopoulos as the doctor had instructed;
Ms Han said that she tried to report the incident to Ms Mota but could not reach her. She then briefed the afternoon shift registered nurse and staff about Ms Toliopoulos’ situation. She said that Ms Mota rang at 3:02pm while she was giving the briefing. She told Ms Mota that a few incidents had occurred that day, but she was briefing the afternoon shift registered nurse and would report them to Ms Mota later to which Ms Mota agreed. She told Ms Mota that she had missed her lunch break and asked if she could be paid for this. Ms Mota agreed. Ms Han wrote that she finished her duties at 3:30pm and went home.
The rest of the meeting on 23 January 2020
179 Ms Mota prepared, from her contemporaneous notes, a minute of the meeting between Ms Han, Ms Darwich and her on 23 January 2020 (the 23 January meeting). She recorded that Ms Darwich opened the meeting by announcing that, in the 21 January letter, Ms Han had been given an opportunity to bring a support person but had chosen not to do so.
180 Ms Darwich described in chief what she said was her understanding of what the 23 January meeting was going to cover as:
Wei Han was going to be terminated from her employment due to the issues surrounding Helen [Toliopoulos] and the oxygen therapy, and she was already on a first and final warning.
(emphasis added)
181 I do not accept that, prior to the meeting, “oxygen therapy” (being Ms Han’s instruction to Ms Young to administer oxygen to Ms Toliopoulos) was a part of Ms Darwich’s consideration as to why she was going to terminate Ms Han’s employment. First, there was no material in the evidence that raised this issue until she saw it in Ms Han’s 22 January letter. Secondly, even on her own account, that I also have not accepted, the only issue that Ms Darwich asserted that she had told Ms Han in the phone call on 17 January 2020 was in relation to a resident’s clinical care ([169] above). In her evidence, Ms Darwich raised her asserted concerns about Ms Han instructing Ms Young to administer oxygen as the predominant justification for the termination. I do not accept that, if she knew of this circumstance, it would not have been mentioned in Ms Mota’s letters or Ms Darwich’s asserted version of her conversation on 17 January 2020 when she suspended Ms Han.
182 Ms Darwich said to Ms Han that the purpose of the meeting was to deal with the care she gave to Ms Toliopoulos. Ms Darwich then began reading Ms Han’s 22 January letter. As she read through it, Ms Darwich (corresponding with her notation “1” on it) asked Ms Han why she would instruct a team leader to contact a local medical officer, apply oxygen to, and contact the family of, a resident. She told Ms Han that a team leader was not qualified to give oxygen and had not gone to university. Ms Han replied that the previous team leader, Ms Karabatsos, had administered oxygen to patients regularly, but Ms Darwich cut her off saying: “No, no, no. I’m talking, you need to listen to me, then you answer.” Ms Darwich asked (corresponding with her notation “2” on it) why Ms Han had told Ms Young to get the doctor to chart morphine when she had not yet assessed the resident’s condition.
183 However, Ms Han’s 22 January letter and her Leecare entries indicated that she had considered Ms Toliopoulos’ advanced care directive, spoken to Ms Jones (her daughter) and to Dr Malik and asked the doctor to chart some medication for pain management, such as morphine. As noted above, the doctor had said that there was no need for morphine at that stage. In addition, Ms Mota said in evidence about Ms Han’s Leecare entry made at 15:10 on 15 December 2019 that “I don’t think there’s any harm in asking a doctor to chart crisis medications”.
184 Ms Darwich reminded Ms Han that earlier she had received a first and final warning for a breach of St Basil’s code of conduct because she had called Ms Bangao “a bitch”.
185 Ms Mota gave this evidence about what was said at the 23 January meeting:
there was a bit of a back and forth about … those terms or … that information, and then Sonya basically, I think, just said, “Look, I’m really concerned about … how you’re delivering care. … There’s’, like, these issues that you’re having with staff that … you feel … you’re always being targeted or you’re feeling that people are trying to criticise you” something along those lines, so the teamwork, “And then you’re calling someone ‘a bitch’”, and then … “there’s this issue with you delegating stuff to team leaders which are not comfortable with”, and … “That really makes me concerned for the residents that are in your care”, … and then it transpired into … “I’ve made a decision to terminate your contract.”
(emphasis added)
186 Ms Mota’s minutes recorded that Ms Darwich told Ms Han that, as director of care, she had serious concerns about, first, Ms Han’s clinical management of Ms Toliopoulos, who had died a few days after the incident involving Ms Han on 15 December 2019, secondly, Ms Han’s failure to return multiple calls that Ms Darwich had made trying to set up the meeting, thirdly, the “bitch” incident and, fourthly, “Issues with clinical documentation which was identified in the last meeting that escalated as Casey raised she felt that others were targeting her”. (The fourth concern was about Ms Han’s 1 December complaint and the 12 December meeting.)
187 I accept Ms Han’s evidence that Ms Darwich did not give Ms Han a chance to respond to her allegations in the meeting, which is corroborated by Ms Mota’s minutes, the next entry in which was:
Sonya stated that overall, Helen Toliopoulos should have been provided with better care from a Registered Nurse and taking into consideration all of the above issues, the decision was made to terminate Casey’s employment effective immediately.
(emphasis added)
188 While Ms Darwich was trying to inform her of her entitlements, Ms Han protested the termination decision. Ms Darwich reiterated that she had serious concerns about Ms Han delegating tasks to unqualified staff and Ms Han telling her that she could not attend the originally scheduled date for the “outcomes” meeting because she was ill and not in Sydney.
189 Ms Han said that she did not accept the decision to terminate her employment, asserted that it was unfair and that she would challenge it. Ms Darwich told Ms Han that she could speak to the CEO, Father Nicholas, which Ms Han initially declined to pursue. As Ms Mota’s minutes recorded, Ms Darwich “once again clarified that an AIN [an assistant in nursing] [scil: Ms Young] is not accountable for a clinically deteriorating resident [and that it] is the job of the Registered Nurse to physically assess the resident as Helen was in her dying stages”. Ms Han again refused to accept the decision.
190 Ms Darwich gave this evidence:
Was there a written policy about oxygen administration? --- Yes. There would be a policy on oxygen therapy.
…
If a team leader is skilled and has the qualifications and … you’ve seen he or she being … competent, does that change the capacity of them to apply oxygen … if they’re engaged with the team leader? --- Absolutely not. Absolutely not. A registered nurse is the only one who is able to administer oxygen, … which is a medication.
HIS HONOUR: And is that because of what’s in the policy that you’ve referred to, the written policy? --- Correct.
(emphasis added)
191 I do not accept that evidence. I prefer Ms Han’s evidence that, first, there was no policy of any kind at St Basil’s in 2019 that a team leader could not administer oxygen if instructed to do so by a doctor or a registered nurse, secondly, St Basil’s had provided training to both registered nurses and team leaders together to administer oxygen from when she began working at St Basil’s and that, from about 2018 or early 2019, team leaders first became allowed to administer medication themselves and, thirdly, until her transfer to another section or shift, Ms Karabatsos, a team leader, had applied oxygen, called doctors and counselled families since at least when Ms Han began working at St Basil’s. Ms Mota said that there was no policy at St Basil’s while she worked there up to at least the end of 2019 that prevented a team leader administering oxygen.
192 Ms Mota’s evidence reinforced this when she said in chief:
Ms Mota, when it comes to oxygen and how it’s applied, to the best of your understanding and knowledge, during your time, at least, at St Basil’s, was there any written policy, guideline or procedure which articulated what you’ve noted? --- I don’t think so. I don’t think there was … like, an actual policy. I think … the fact is we’ve got team leaders who administer medications, so their roles are to administer medications. For them to be able to do that they go through a process of competency. So in that competency … they get assessed. They do a theory-based aspect of that training, then they go on the floor and do X amount of buddy shifts with a team leader to learn how to do, say, oral medication, liquid medication, eye drops, nebulisers. So … they go through … what we call an … assessment period, and that the competency that we go through doesn’t cover oxygen therapy because … that’s not something we expect them to do. Something that we want like, we don’t want them to do that.
(emphasis added)
193 However, I do not accept Ms Mota’s concluding observation in that answer, including that oxygen administration was “not something we expect them to do”. As she said, there was no policy proscribing team leaders from doing so. She gave this evidence in cross-examination:
you never gave any instruction to RN or team leader [that] says, “Team leader not allowed to apply oxygen”. Is that correct? --- I didn’t give any direct instruction, no.
…
HIS HONOUR: And were you aware of anyone else who gave any direct instruction about that? --- No. … there would be no reason to give it, to be honest. As I said, it has never been an issue.
MS HAN: So why you organise team leader to you provide team leader about in the oxygen administer training? --- As I mentioned, a team leader is allowed to support an RN. And when I say “support” under the supervision, … it’s a direct supervision. It’s not from a different level in the nursing home.
(emphasis added)
194 Ms Mota’s last answer confirmed Ms Han’s evidence that team leaders and registered nurses both received training together as to the administration of oxygen with no express limitation that only a registered nurse could do so. Ms Mota also agreed with Ms Han that, in an emergency situation, anyone trained in how to use oxygen can apply it.
195 I infer that Ms Mota was conscious that Ms Darwich had taken a different approach to her own about the ability of a team leader to administer oxygen to a resident when Ms Darwich spoke with Ms Han in the 23 January meeting by asserting, as she did in giving evidence, that there was such a policy. It suited Ms Mota that Ms Darwich did so as a buttress to Ms Mota’s oral report about her “investigation” into Ms Han. That so called investigation was neither thorough nor unbiased, as I have explained above.
Ms Han’s meeting with the CEO
196 Within minutes of leaving the 23 January meeting with Ms Darwich and Ms Mota, Ms Han went to see Father Nicholas. He described his role in Ms Han’s termination as being “to audit the process and to make sure due diligence had been exercised, and that the matters were conducted fairly and properly”. He said that he thought (but I am not satisfied that he had any recollection) that Ms Darwich, Mr Rooke and, maybe, Ms Mota had “briefed” him as the persons who conducted an investigation that led to a decision that an employee be terminated. He said that he always wanted to know and be briefed when someone was being terminated to be satisfied that the matter was of “appropriate gravity to warrant the action requested”. However, as he said, he did not investigate Ms Han’s termination beyond whatever was involved in the ‘briefing’ that he received.
197 Mr Rooke said that the process was that he would prepare a pack with evidence gathered from employees and other information to take to the CEO “saying, we have made a decision … to move towards termination”. He said that, in around July 2019, there was no formal pack, but he believed that, in early 2020, “we put something together with a cover sheet on top”. St Basil’s led no evidence of any pack or cover sheet of any kind in respect of the process that resulted in Ms Han being terminated. Mr Rooke explained that when a letter of termination was to be sent, he provided the CEO with it and “a small amount of information … for sign off”.
198 Father Nicholas said that he met Ms Han when she begged him to overturn the decision. He said that:
her behaviour was disturbing to me … because she was kneeling down on the floor … in front of my feet, and I was asking her to get up … and then she sought to provide evidence to me on the matter.
(emphasis added)
199 Ms Han tried to show him photographs on her phone of the injuries on Mr Arnaoutis’ arms (see [93] above). As he acknowledged when Ms Han cross-examined him, she was trying to show him evidence, on her phone, about the issues that she had raised with Ms Mota, Mr Rooke and Ms Darwich about the care of residents. Father Nicholas described the photos as compromising St Basil’s privacy policy and that this conduct, by itself, “I would deem a termination offence, having all this material, on her phone, of our residents”.
200 Ms Han also showed Father Nicholas photographs on social media accounts of a care manager and her relatives, whom Ms Han identified as including Ms Alcantara and Ms Young. When Ms Han pressed him in cross-examination about showing him the photo of Mr Arnaoutis’ arm on the Leecare system, he said “I don’t recall” and assumed that, rather than her accessing the photo on the Leecare system (to which she obviously would still have access, minutes after leaving the meeting with Ms Darwich and Ms Mota), she, instead, must have stored it improperly on her phone.
201 He became evasive when pressed about what Ms Han had tried to tell him but eventually gave this evidence:
HIS HONOUR: But when she was showing you things that were to do with matters of care, are you saying that they were matters which [she was] saying, “There’s something wrong about this care that these photos show”? --- I do recall that that was part of her argument. Yes.
Yes? --- … part of her approach to me was that she … wanted to say to me that she was a person who raised issues of poor care to, you know - - -
To residents? --- To residents. Yes.
(emphasis added)
202 He then recalled that Ms Han asserted to him that a care manager and other staff in the social media photos she had shown him had covered up the incident in the photo of the bruising and that Ms Han had reported this as part of her duty of care for the best interests of residents. He replied “you were trying to report issues of care that you felt were problematic”. However, Father Nicholas asserted that he did not recall that Ms Han was saying to him that, when she had raised those issues, they “had not been addressed or had been covered up”.
203 Oddly, as CEO, he had no idea how the system operated to allow registered nurses to have access to Leecare on their phones. His reaction, however, showed that he had a closed mind against Ms Han. He told her that “she should be happy that her registration isn’t being called into question” before he subsequently said to Ms Darwich that he felt that Ms Han “should be reported to the Nurses Registration Board … this [compromise of privacy] is serious misconduct on the part of a registered professional”.
204 As the CEO, Father Nicholas had the ultimate authority to affirm or review Ms Darwich’s decision earlier on 23 January 2020 to terminate Ms Han’s employment. As he made clear in his evidence, he affirmed that decision because she was trying to justify her conduct in complaining about the treatment of residents by Ms Lee, in particular using photos of Mr Arnaoutis’ bruising as part of her report that she had recorded on Leecare, and her perception of the failures of Ms Mota and Ms Alcantara to investigate those matters. As Father Nicholas said, instead of listening to her, he regarded that complaint as professionally inappropriate and as warranting the termination of her employment in itself.
St Basil’s complaint to AHPRA
205 Later on 23 January 2020, Ms Darwich lodged an online complaint about Ms Han with AHPRA (the AHPRA complaint). She did so as a result of Father Nicholas’ instruction. Ms Darwich completed the online form questions. She answered ‘Don’t know’ to the question “Have you or anyone else been harmed by the health practitioner?” and ‘Yes’ to the question whether there was potential for harm and provided the date range for this as 15 December 2019 to 23 January 2020. She filled in the following responses:
Please describe what occurred
I have undertaken an interview with this staff member who is already on a first and final warning for calling a staff member a bitch. This staff member has been terminated from employment due to the following 1. Not following Position description- significant concerne [sic] around clinical decision making 2. Asking unqualified staff to undertake duties outside their scope 3. Breach of privacy and confidentiality- High level, clinical information observed on her phone by the CEO 4. Inappropriate communication with staff members 5. Bullying and harassment
Do you have related documents? No
(emphasis added)
206 In evidence in chief, Ms Darwich asserted that she made the complaint because Ms Han was not practising within her scope as a registered nurse, instructing staff who did not have qualifications to administer medications to a resident “and also Wei Han’s mental state was also part of this decision”. I do not accept Ms Darwich’s pejorative assertion that Ms Han’s mental health was a factor in her complaint to AHPRA, given that it was not mentioned in what she wrote in the AHPRA complaint form or what was in the 6 February letter (as appears below).
207 Importantly, given how St Basil’s sought to defend Ms Han’s adverse action allegations, the AHPRA complaint did not specify directly that Ms Han had required Ms Young to administer oxygen when she was not qualified to do so. Rather, the only item in the AHPRA complaint in which that serious allegation may have been suggested was in the second point, namely “2 Asking unqualified staff to undertake duties outside their scope”.
208 On 29 January 2020, the Council wrote to Ms Han advising her of the AHPRA complaint, enclosing a copy, and identified the key allegation against her was that she “practised in a way that was a significant departure from acceptable standards of a registered nurse”. She had to respond by 5 February 2020. The Health Care Complaints Commission (HCCC) also dealt with the AHPRA complaint.
209 Also on 29 January 2020, Ms Darwich sent text messages to Ms Han requiring her to return her uniforms and identification material so that her termination payments could be processed.
210 On 5 February 2020, Ms Han texted Ms Darwich asking for a letter that confirmed the termination of her employment. Ms Darwich replied, early on 6 February 2020, that she would ensure that Ms Han received a letter that day. Ms Han arranged to meet Ms Darwich on 7 February 2020.
St Basil’s 6 February 2020 letter
211 At 7:20am on 7 February 2020, Ms Mota emailed the 6 February letter that she had signed as general manager to Ms Han which, relevantly, stated:
Dear Wei (Casey),
RE: Termination of Employment
The purpose of this letter is to inform you that we have made the decision to terminate your employment with St Basil’s Homes.
Our thorough investigation process took into account:
1. Opportunities for you to understand and respond to the allegations, including at our meetings on 12/12/2019 and 23/01/2020.
2. Interviews and obtaining statements from staff members; and
3. Work undertaken to review and investigate your claims and assertions made during our interviews.
Our investigation found that you failed to provide the necessary care to residents of St Basil’s Nursing home, particularly the late Helen Toliopoulos, resulting in the delay of treatment to assist a resident with transition into active palliative care
In addition to this, we also identified that you had instructed unqualified staff to offer therapy which was outside of their scope of practice.
After the completion of the investigation and responses received from you on 23/01/20 St Basil’s reviewed the serious nature of these findings and also took into consideration your performance history with our organization. Based on these considerations, we have decided to terminate your employment, with an effective date of 23/01/2020.
(emphasis added)
212 I asked Ms Darwich to point to anything in the Leecare entries and vital signs records for Ms Toliopoulos that were in evidence in respect of Ms Han’s shift on 15 December 2019 that supported the assertion in the 6 February letter that the:
investigation found that you failed to provide the necessary care to residents of St Basil’s Nursing home, particularly the late Helen Toliopoulos, resulting in the delay of treatment to assist a resident with transition into active palliative care.
213 She answered “No, not in the medical records”. I find that there was no basis to her knowledge for that assertion beyond what Ms Mota may have told her orally.
214 Ms Darwich said that, at the 23 January meeting, Ms Han “wasn’t given the opportunity to explain because she had already been given other opportunities to explain, and the decision had already been made on that day”. Ms Darwich said that, if that understanding were incorrect, she would have taken a different course. Ms Darwich said that Mr Rooke and Ms Mota would have conveyed that understanding to her about Ms Han having had such an opportunity between the 13 January letter and the termination of Ms Han. I do not believe that Mr Rooke had any involvement in these events (see [160]–[161] and [197] above), but Ms Mota certainly did.
215 I infer that Ms Darwich relied on Ms Mota’s reporting of her findings of a purportedly thorough investigation that were listed as the adverse conclusions in the 6 February letter and AHPRA complaint, other than Ms Han’s earlier use of “bitch”, her instructing Ms Young to administer oxygen and Father Nicholas’ baseless allegation of a breach of privacy.
216 On 7 February 2020, Ms Han met with Ms Darwich, returned her uniform and identification, and then explained the basis of her 24 December complaint.
The AHPRA complaint is dismissed
217 On 21 April 2020, the HCCC wrote to Ms Darwich informing her that, after consultation with the Council, the AHPRA complaint was referred to the Council as the most appropriate body to manage it. The HCCC said that it had reviewed all the information that Ms Darwich had provided and obtained a response from Ms Han.
218 On 30 April 2020, the Council wrote to Ms Han. It thanked her for attending a meeting on 24 February 2020 and informed her:
The Council considered the matter further at its meeting held on 17 April 2020 and resolved to close the matter with no further action. The reasons for closing the matter are:
• You provided a credible account of the challenges and stressors of her working environment
• the allegations imposed by the employer around your performance and conduct were imprecise and did not raise significant concerns about performance to warrant immediate action
• you were reminded to review the Code of Conduct in relation to their professional obligations and standards
• you were counselled about self-care
(emphasis added)
Did St Basil’s take adverse action in terminating Ms Han?
St Basil’s submissions on the reasons for Ms Han’s termination
219 St Basil’s distilled two particular issues that it needed to address, being, first, its position on the administration of oxygen and, secondly, the process that it used that led to Ms Han’s dismissal.
220 St Basil’s argued that, once Ms Mota acknowledged Ms Han’s 24 December complaint, on 30 December 2019, she investigated the matters that Ms Han had raised before sending her the 13 January letter raising the unspecified “escalating concerns”. It relied on Ms Mota’s evidence in chief that registered nurses would usually determine whether a resident needed oxygen. She said that the registered nurse could ask a team leader to get the oxygen tank and bring it to the resident’s location, but the nurse needed to determine whether there was oxygen in the tank and that, during her employment at St Basil’s, she had never seen a team leader applying oxygen to a resident. It also referred to what it described as Ms Darwich’s similar evidence and Mr Rooke’s understanding that Ms Han, as a registered nurse, had asked someone “who was not qualified and within policy to provide oxygen to do that job”.
221 St Basil’s contended that Ms Mota’s evidence should be accepted that the “escalating concerns” to which her 13 January letter referred was a reference to Ms Han’s instruction to Ms Young to administer oxygen. It noted that, however, Ms Darwich told Ms Han on 17 January 2020 that the reason for her suspension “was in relation to the clinical care of a resident”. It relied on what Ms Han wrote in her 22 January 2020 letter, Ms Mota’s minutes of the 23 January meeting and its letter of 6 February 2020.
222 St Basil’s accepted that it had not tendered any written policy or instruction that directly related to the administration of oxygen. But, it argued each of Ms Darwich, Ms Mota and Mr Rooke gave evidence of a genuine and sincere belief that only a registered nurse could administer oxygen. It contended that, because each of them held this belief, there was no basis to infer that the adverse action of termination of Ms Han’s employment was motivated by any impermissible or unlawful factor, whatever deficiencies there may have been in communicating their belief about the administration of oxygen to employees or Ms Han. St Basil’s submitted that, because its decision-makers acted on the basis of that genuine and sincerely held belief in concluding that Ms Han had breached her duties by directing a team leader to act outside her scope of practice by administering oxygen to a resident, accordingly, it could not be found to have contravened Pt 3-1 of the Act.
223 Next, St Basil’s accepted that its process leading to Ms Han’s dismissal could be found to be deficient, including in respect of its failures to give her any particulars of what she was accused of in January 2020 before the 23 January meeting. But, it argued those deficiencies did not affect the resolution of the essential question as to whether any of the three decision-makers acted because of Ms Han’s exercise of her workplace right to make a complaint or to discriminate against her because she was Chinese in taking the adverse action of terminating her. It contended that, once again, the genuine and sincerely held belief of each of Ms Darwich, Ms Mota and Mr Rooke about Ms Han’s conduct in directing Ms Young to administer oxygen to Ms Toliopoulos was unaffected by either of the reasons or intentions proscribed in ss 340(1)(a) or 351(1) despite any deficiencies in the process that resulted in her dismissal. It submitted that there was no basis in the evidence, or related to any lapse in its process, to find that Mr Rooke, Ms Darwich or Ms Mota acted for, or was motivated by, impermissible or unlawful reasons or intentions, namely Ms Han’s history of complaints and inquires in relation to her employment or her race.
Consideration
224 Here, Ms Han had a workplace right to make a complaint or inquiry in relation to her employment pursuant to s 341(1)(c) of the Act under the following policies of St Basil’s:
(a) the code of conduct as to breach of:
(i) professional conduct, including putting customers (ie. residents) at risk through medication errors and physical abuse;
(ii) expectations that all individuals be treated with dignity, courtesy and respect (see [30]–[31] above);
(b) the counselling and discipline policy as to behaviour by staff that caused serious and imminent risk to the health and safety of a resident (see [32] above); and
(c) the procedural framework policy as to errors in administration of schedule 8 medicines, such as Targin (see [35]–[36] above).
225 Of course, the crucial issue is whether St Basil’s took the adverse action of termination for one or more reasons that included a proscribed reason, not whether St Basil’s gave her a fair procedure or unfairly dismissed her.
226 St Basil’s employees created at least three documents that recorded varying reasons for Ms Han’s termination, namely:
Ms Mota’s minutes of the 23 January meeting between her, Ms Darwich and Ms Han;
Ms Darwich’s complaint to AHPRA; and
St Basil’s 6 February letter to Ms Han.
227 There are discrepancies between, first, those three documents and, secondly, their assertions in respect of Ms Han’s conduct attending to Ms Toliopoulos when compared to the objective material in St Basil’s medical records and written statements by Mr Agbada, Ms Young and Ms Kakias.
228 There was no report or summary of any investigation of Ms Han’s 24 December complaint or conduct beyond Ms Mota’s handwritten notes of her interviews, Ms Young’s note, Mr Agbada’s email and the belated entries on the incident report forms (see [175]–[177] above). Mr Rooke had no real recollection of involvement beyond being shown materials and settling the form of an unspecified draft letter. As I have found, Mr Rooke was only involved in relation to the decision to terminate Ms Han after the event when he settled the form of the 6 February letter that occurred after her dismissal.
229 Ms Darwich had done none of the “investigation” before Ms Mota sent the 13 January letter. Ms Darwich relied on Ms Mota’s oral reporting to her of whatever Ms Mota’s investigation had found and did no work to check any of what Ms Mota told her.
230 Moreover, the only matter of concern that Ms Mota asserted in the 13, 20 and 21 January letters was in relation to the clinical care of unnamed residents. That did not involve any suggestion that Ms Han had given an inappropriate instruction to Ms Young to administer oxygen to any resident.
231 I am not satisfied that Ms Mota believed that Ms Han had acted in breach of any duty as a nurse in giving Ms Young the instruction to administer oxygen on 15 December 2019. This is because Ms Mota knew that there was no such policy and there had been no communication to staff that a team leader, whom a registered nurse had assessed as competent to do so, could not administer oxygen (see [192]–[194] above).
232 Even on Ms Darwich’s evidence (that I have not accepted because I found that she gave Ms Han no reasons), on 17 January 2020, she gave as the only reason for her suspension to Ms Han that it was in relation to “the clinical care of a resident at Lakemba” (see [169] above).
233 Ms Mota sent Ms Han the 13, 20 and 21 January letters and knew, when doing so, that she had not given Ms Han any prior opportunity to know that her conduct was now being called into question. There was no objective basis for St Basil’s or Ms Mota to have any concern about Ms Han’s clinical care of anyone at those times, as I have explained above. As Ms Mota admitted, it was she who raised concerns about Ms Han by purportedly “investigating” her complaints without affording any procedural fairness to Ms Han or acting with any objectivity in doing so. Instead, Ms Mota brushed aside the substantive issues with the conduct of her two fellow Filipino employees, Mr Agbada and Ms Young, because she asserted that there “was no performance issues with Von and same with Charito” (see [157] above).
234 I reject St Basil’s submission that Ms Mota took, or participated in, the adverse action of terminating Ms Han with a genuine and sincere belief that Ms Han had asked Ms Young to act outside the scope of her duties by administering oxygen to Ms Toliopoulos.
235 Moreover, the AHPRA complaint stated that one reason for Ms Han’s termination was “Breach of privacy and confidentiality- High level, clinical information observed on her phone by the CEO”. That observation of Father Nicholas occurred because, and only because, Ms Han was attempting to exercise her workplace right to explain why she should not be terminated in the course of elaborating her 1 December complaint about Ms Pandey and the treatment of Mr Arnaoutis, a photograph of whose significant bruising she was showing Father Nicholas on the Leecare access she still had on her phone. As he acknowledged to Ms Han in cross-examination, “you were trying to report issues of care that you felt were problematic” (see [202] above).
236 The 6 February letter referred to “opportunities for you to understand and respond to the allegations, including at our meetings on 12/12/2019 and 23/01/2020”. There were no allegations against Ms Han at the 12 December meeting. The purpose of that meeting was to discuss her 1 December complaint.
237 Mr Rooke, Ms Mota and Ms Darwich did not explain how the 6 February letter came to include its reference to allegations against Ms Han discussed in the 12 December meeting. I infer that this reference was to Mr Rooke’s and Ms Mota’s disapprobation of Ms Han’s exercise of her workplace right to complain about her bona fide and reportable allegations of breaches by other staff of their duties as employees, including those in her 1 and 24 December complaints.
238 Ms Mota favoured her fellow Filipino co-workers over the Chinese, Ms Han, by reporting to both Mr Rooke and Ms Darwich (who each relied on her reports) that there were no issues with the conduct of Mr Agbada or Ms Young, as well as Ms Pandey and Ms Lee, despite the reasonable material to which Ms Han referred in her 1 and 24 December complaints in St Basil’s records.
239 Ms Mota’s adverse reporting to Father Nicholas, Mr Rooke and Ms Darwich affected their attitudes to Ms Han, including the false creation of “serious concerns”, for at least Ms Darwich, by the time Ms Mota sent the 13 January letter to Ms Han. Ms Mota’s pejorative reporting about Ms Han to Ms Darwich and Mr Rooke created a different assessment process than should have obtained when St Basil’s took the adverse action of terminating Ms Han: Kodak 129 IR at 260 [37]; Wong 318 IR at 167–168 [78]–[79], [82].
240 For the above reasons, I am not satisfied that St Basil’s discharged its onus of proof to displace the presumption in s 361(1) of the Act that, when it took the adverse action of terminating Ms Han’s employment on 23 January 2020, it did so because she had exercised her workplace right to make a complaint or inquiry in relation to her employment or because of her Chinese race.
Conclusion
241 Accordingly, I find that, on 23 January 2020, St Basil’s took adverse action against Ms Han by terminating her employment because each of the following was a substantial and operative reason for that action, namely:
(a) Ms Han’s exercise, as an employee, of her workplace right to make a complaint or inquiry in relation to her employment; and or
(b) because of her Chinese race.
242 I will make declarations to this effect and list the matter for a hearing to determine what remedies and penalties should be ordered.
I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. |
