Cullen v Gold Coast Nursing Home [1998] QIRC 67 (1998) 157 QGIG 128

128 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2(J Fchrnary, 1998 ########################################################## Vl 'EFSSI,A:'\IJ ISDl 'STKIAI. REL/\TIO'.\'S CO:Vl \11SSIOS Workplt1,e Rrlatio11.1· Ar/ l'197 �. 21 S - .ippli<.:ati1...,.n for r...•rn�t�tk:ll'h:!lt Bntce Cu llen !No. Rl'2'2.I nf IIJ'-/71 COM\1ISSIO\'ER OL00'.\1FIELO Rei11sta1�meu1 - Dismissal - T�rmination of Empl oymcnl •- Assistant \'urse - \'ursin� l lomc - (iro.-s '.\1iscnnduct - Applicdnl alkgc,Uy hit re.sidcnt with shower ;ou.:lc - ,\pphcani left r<!.sidcnl unaue nded in shnw,:r whid" - Appl ic-a111 did n<� follvw pnx:�d,m;.s - ;\pplic,rnt sumn1M1ly dismi.ss,·,! - Arhitraled \.1a11cr - Applicanl gi\'en reasonable opponunity It\ dcfc·ncl - Di�mi�.'\al not h�1rsh1 unjust or UnJt'a�on�1hk - Sufflc..·11.:n1 groun1.l� 1P �un\nhuily di:;nu'-.S' -· Applicc1llc'in 1.1ismi,'\��d - \o nnkr a.� lo cost�. Dl'CISIO:,.' Thi� 1s �n: applk.,taon hy Oruo: Cull.:.n which sed,.-.: rd1c-f in rdation t(l his dismis.,al from 1h,, (,old Coas1 Sur.sing llnmc on 1 6 June 19')7. \.'fr Cu ll�n had comm�ncnl �mploym,•nt at the nu rsing horTh! in August 191)4 'L' a casual A.�-.:i�tanc Surst.: .uh.I wa.� niade: a pcrnmn�n1 <::mployt'.� m his ,'-;..' Gllflci w�"k of cmploym._,01. lrrunc<liatel)' hdore comm"ncing work with 1h� nur.<in� home he had undertaken a �ix W�<!k full-time course in .;gc<l care condu�ted hy 1hc House With :So St"p�, Prior 10 thar ho had work.::d at a ho.,rd for lhe dderly. !v1r Culkn wa.� di:..mh�t'd ci.-.: a r...-:.sul1 ofan lnddcm which invoJ n·d ,\ll 82 year old hlind and ne,1rly deaf dcmenri,, patknt ar approximatdy 3.'.lO p.m. on Thursday. 1 2 June l ')\J'l. 011 1 5 June jC)<)7 Mr Cullen w," in1crvicwt�I. in the prcsc:ncot o1 an Or�;,mi.s�r of the Que',i:n�land '.\ur:0-"1.:�' l ·mon of l:mployc<!S, in relation le> the fullnw,n!! dllcgal1<1ns:- "l'hv,\/cal ahu.-, nf (ii,, r11.1idm1/:-• admi11i11g 10 1hr 1).0.N. Iha; you }111 (the r�s,dt'lll) 011 tit� ford1t".ad will, o shower noz.zie thus cousin): lht:' laceratim, to l>lt1ed: admilling to lrai'ing {lhr rt'sideul J uuutfr:rul,,J m a .,h,1wer cubtclr siui11g 011 a :·./wwl!r rluur nokrd and wl'l wirh no Ollf'mp! ft, to\·er Jum: admiuing to v.'<Utltn); to lPtffe 1he nuninx, hom.e without 1101ijyi11:< the RN in cJwrgr 1>/ 11,e ,·ircumsltmc�s; llllt adluri11g w /he NCP (N11r.,i11g Care Plan) staling 2 1111rse.v {lo br Jin (1t1endancr h•hen (llu• rPsidn1tj b<>corn,• s aggres.t,'ve (md sn1di11;: rlu- olher 1111rsf# awoy whi/.,·f you allnnpt11d to ,·Junn�r him a!rm�. ". The: allc�a1inns were fCd.d <>UI to Y1r Culkn from tt lh.x�uttic: nt entitled "R�cord of ·lnl<'rvtcw - Ta111111a11011 of Fmptoymcnr''. Th� Record of lnh.·rYit.:w �11.so f\;<.:on.lt.:d lh<.tt .. \OIi drni�d tl,o.r you hit (/hi' ft',\tdn11} on the forrhrat.i with o \)Un\·�r 110::.,lr. Ina _toll did nnr dt?IIJ 011_..,thin;,: i'l.H• .". Tht• tern\in<1tion w�is 1,,.•t't<.:�t<.!d on \·1onday, I 6 Jun..: 1997 when Mr Cul kn w;1., form,-illy infor m1--·d nf hi:-: in�tant cfo;miss,d f...)r un:::ali:-la<:tory work conduct. \-1r Culk:n stgnc:d the:-:. Rt!'t:or<l l)f lnh.:rvi-:.w to in<lin,lc thttl he umkr<;1ood l(s cont\'.nls 10 h� d true ;.1nd �tccurc1tc..: f\..'.cord llt' the> termination of �: mpk,ynlc:.nt ink:rVit.:W hut hi:: ,ilso rt:c..·ord�d 1.h� folhnvin,g nntatinn: "/ do11 't h1• /wvl' thiJ tu br an accurtllt' rt•cord uf Jiu, O\'N'{J/1 picture.". The cmploy,f s (kn<tc•n lo krmi natc w,.,s tak<!n hy the Dtre�lor of \ur.�ing of 1h� (iold Co�t" �<ur�rng Ho1 nt, a �1rf: l)awkrn�, after sh� <:on,icl<?r,·d: what .<he had been told hy '.\1r Culkn imm,tfiat dy aflc:r the tncick11t on 1 2 June 1 ')97: what '.\1r Cullen h<1cl rcc,lnkd in an /\cc1dcn1/ln�idont Rcp<ll1 whid1 he had pr<p,tr<?l! JI ahout I0.35 that same �,·�ning: what \ltr Cullt!n had indit.:(tlo.:.:d in .:.t mor<: ,:xpan.-.;i\'� f\!(l\)rt pri!pared hy him on the �amc <!at� aflcr 11<: prepared rhe Ac:c.:i(knr/[nci,lcnl Kcport: r...•pons g.ivt:n to h..:r hy R,·gi.-.tcr1:ll >-'ur�� Pau..:rson ahvut a da,:;;-cu�:-:ion hdd hctwcsn .'\'urse Paucr.,on an,I '.\1r Cullen in rd ation 10 the irn.: idcnt: and \1r Cul!�n·s �msw1.•r:-· C<.) lh1:· aho\.t.: alh:g�,ti\iH!-:. T() undi.:r�tand lht: incitfl.! r\l. :mt.i th<- c:mplor�r·s dc:-cision l<l 1..:rminall:!. i1 is ,ipprnpri<1k' lo raproduce '.\lr Culkn'.s rcporL� (wi1h their original wording, g,r�ulUl1ar ;.Lntl .-..pclhngJ:- At·dde11t/lncide11t Report prepared hy \·I r Culle11 at ltl.35 p.m. on 1 2 Junc 1997 "[k1<·np1t,m 11/AN 1dn1tl/11cidnu (fl,,- residm/J urcv h,•lf1g showuf'd "'""" hP /a.,h 0111 11w; punchi11;;. scrcu hing. kid,·in;.;. bitt'ill}!. constantly until I reached 1/,e poi111 "·Jure I (' O/lld ,if hil him, so I 1w1/ked 0111 to lr_) und calm d,ni--11. U'lult (tlrY rr,·id,,,Ji > wa., hllting mP I wa.,· Jt/lin/,: him wJua I wa."t doin;:. .r\1 /JIii' pni111 (the re.Hde111_; grabbed Ifie sflr,1,·wr.r !umdlr a11d knr,ck,-d him.,elf 011 the 11ow1 causei.ng <I cuts on hi,\ ,u,sr andford1Y.t1d.''. Further Report prcpar�d l>y \lr Cullen hdore close of shift on 12 June 1997 "I t\SK (OTHER ,HN./ 10 7i\Kl:: (Tlll: Rr:SlL>l:'/l'Ti TO !1/E Sf/OWtR, it\ l.N..1 TOOK (7'/ll;' RESIDF:Nl) IN TO S/J{)\Vf,;R CUB/Al, WJll:N I ARR/\'/:· TO llt:U• (,\.I.Ni STAN!) 11'111: RESJ{)l;XI) t\,V/J RM10VE 11/S /'t',NTS (ALL TIii; 7JML; TEI.UNG 1TIII: RE.'>'l{)ENT) \Vllt\T I W,\S DOING). I mk.:d (the rPs1Jm1J ifI could rnnow his pmlls. He ll8reed. As "'" remm·ed hi.< pcm/ (th,- r,,s"/"111J .,·1<11·1ed I<' lasli 0111, 1101hi11g 111,usol t,.r..· ht' mo.,r of 1h� rime St>llles dti',Vti. Rut us I rt'mnw• his rops (JJ,t' rY.tide111) .\larte'd u, l{d ph_\.sicaliy agres1\'e fH·i,rtm� my arms and httr.in>:: ,ny hand. (The rt'.,id1•1JJ J "w,s ,,,sisth- � to me: remove- In\· top ..,.-Ju�n it litu half off.foldmg hi< ann, and fJl111rhi11g n,1 1 when I .<pok e 10 him, try 10 calm /um down which n.'ofk.\ .wnnnime.,·. When I ji11all_, gor the u,ps <1! (rlre ,,,_,ident/ seem 10 calm down. I then u,/(1 him thoi I wc,s· ;;oing 1,, give him a wann shou-rr tzs I was pr,:pari,1>; the warer hr. ,rt.an to gel ph ysical with me a.,· J wa.,· .\pt-aking lo him oil the rime throw p1mche.t 20 Fchrnary, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE 129 into my side. stomtlCh. I thn1 .,tarted to .\hower l11m "va�·hi1Jg hi.,·far,: Jir,11, le/I (lhe rt:.<idr.nl) al all tim,: 1\-/ltlt f was goinx IO do, (lhe re.iide111) proceed 10 punch me in 1he side. I rhen .vwrted 10 wash his siomach (/he l'f':sidet11J grabed my arm and rwi.v1ed // ro 1he poi111 where pam was unbearable. I 1ho11gh1 Ju, >ll'l.< going 10 bri':ak ii. I lo calm do11-11 Ire then relecHed my ann and started to pu11ch into my stomt1ch again and 1/r,11 grab mv lestiwls and began 10 .<qllerze 1hem. Al //ri.< pomr / grab hi.< ann and push ii doMr and told him I<> pi.case .,1e11/e down (11,e residenl) 1he11 gr(1b 1h, .,/,ower handle and pull ii towards his face and /,it himself in the 110.ve. cullinJ: lu:t· 11<1.,;e andforehe<1d. / try 10 .<lop 1/r,: bleeding and .ree how bad the ri,11.v were b111 j11sl k;eped on gelling hil in 11,e .viomach. (The rnidnrt) al 1hi., p(J11// rhen gmb my arm a11d s1a11,cd 10 bi1 my 1/wmb. At 1/11s poi111 I had got to 1/w where I could have recu:1ed and I tumed ihe l\a/U oh· mu/ walked awtiy from him lnokinx for .,mnN11u 10 t<1lk 100, be1;a11.,·e I had .<care my ulj becau.,e I /rod "'' ''"' f,/1 rhal way /Oward.,· a reside,,/, I love 1/,e re.1ide111s (Ind 1hi,, job. If Mr., Dawkms lwdden been in ha ohice I 1hi11k I mix/,/ /,n1•p walked oul.". I should record th,11 whil.,1 Mr Cullen may have had difficulty with rhc -'T inen word he had nn �uch diftic.:uhy ..:xprcs.sing himsdf wrhally. H<! was a very cnn.sidered and articulate witne.<.< who was able 10 fully comprehend and re,pond IO di! of the qucsrions put to him in a ckar and prcci�e manner. '.1,1rs l),,wkin., hacl al.,o been informed by rhc Rcgiste.red :s.· ursc on duty, :-..is Pa11-,rson. that �h� had heen told h�' Mr Cullen that he wa_, sick of hting punched hy the re.<idcnl.< and that he had lost his 1ernpcr with (the resident). M, f'allcm•n had also apparemly informed 'vlrs Dawkin.< thar \.1r Cullt'n had 1,,ld her that ir was lucky that he had seen Mrs Dawkins "l>ecause I wa_s off and ou1" of th� nursing home, In hi� evidence Mr Cullen denied using the we1rd.s ,1u01ed. 111dica1ing that he: had sa,d "I could have Deen our of he.re", 0111 drd not deny that the rest of 1.he conwrsMion had hcen reponed �.,.,rrectly. Alth,,ug.h \·1r Cullen indicated m cros$-cxami nation that he had told Suf.','L' Patterson th::i.l he:· ..could have hccn out of hl-"re" he sought to cxphun that lh.,;y w-,r,· simply his foelrngs al I.he time ,rnJ thal whc:n he had left (the residenl) in the sh,)wer cuhidc it had b.:-en with the intention of finding soms:onc 10 help. Having regard to what Mr Cullen clam,, hi.< intcniions were immcdiardy following !he incident it i, worthwhik 10 record part of Mrs Dawkins· es1denc;; as prc!.<ented in ,s1a1c.ment form. Mrs Dawkins' rec-ollc<.:tion of the cv-,ms and lhe discussion whic:h she had with Mr Cullen inunediatcly following t.he incident w as as follows:- "16. 011 71mr.vday /2 June /997 (I remP.mber 1/11?..e Pven1.,· dearly a., it uu., m) fmha's birrhday) m approximately /6/0 hnurs Mr Cullen llhe App/ica111J ru.l'/,ed pas/ my office door, look,·d in and .<aw me and .,topped and m·ked if he could comr i11 and ralk to me and he .raid he "Yml"d to speak 10 me about 'Charlie'. (We refer 10 (the re.,ident) as 'Charlie ' in order to maintain ,111 mfonn.al family en\1/ronment.J. At that 1u11e I wasjust about ready lo walk i1110 1he office 11ex1 door 10 ched up on the rosrer, and I a.vked Mr Cullen if he wnu/d follow me 1here. lie 1he11 slll dmv11 011 1he chair mid pul hL< head i11 his hand,< a11d s1me:d he 'co11ld11 '1 cop;, wi1h Charlie cm_,. more and 1hc11 Charlie had punc/,;d him for 1/u last tune'. He 11,er, wenl 011 10 s/ale th{l/ he 'had hi1 Charlie 011 the forr.head ori the bridg, nf 1/,e nr,se wilh tire shower hosp nou/e 'tmd <"ausing the laceration u, bleed. I asked him who Jr, was 1a/ki11g aboul and Ire said (//w rtsidl'fli}. 17. I a.,ked him how it had happened, and he said 1ha1 Charlie ,w,s grabbi11g his am, and he j11.,1 lashed 0111 {I/ him. I 1/re11 asked him why (the residen1) ><tls so a10:ressive lrJ1w,rd,1 him and Mr Cullen .Haled ihal 'J,p ""'-' a/..,'t1ys like 1ha1 wit/, him and he ,,�,.v sick of ii·. I 1he11 asked where (rhe residenl) ,wz.v a11d h,, said he, Clrar/ie, was .nil/ i11 1he shower. I /hen asked wherher a nu r.,·e wa., h'ilh him (ihe re.,iden/1 a11d Mr Cullen .,aid 'N,; '. Upon hearinJ: this, I 11nmediately weut up to Nor1h iVing .l'hower w11/r Mr Cullen and found (the reside111) .l'iiling on a shower chair, naked, we1, cold, 1111re.,1rai11r.d a11d blood dripping from his forPlread. /1 became dettr 10 me 1hat Mr Cullen had walked ou1 and left this elderly blind man i11 surh an unsafe position. T}J(�re were 11() clo1lus such as an 1111dershir1, no wule1pa111s, no pams (or pyja11w.r /. no sorks. 110 slippers or bail, robe. (1he re,,idenl/ 011ly had a p)jama 1op. I found /his very dis111rbi11g. Mr Cullen had 1101 eve.11 bo1/1ered to pul a 1owd ova In, .vlro11lder.v, whirh I con.<ida 1¾'1.< mo.<I 11egligen/ a.< ii was June. I immP.dialely go/ a 1r,wPI aruJ started to dry him and fold Mr Cullen 10 get som.,c more ((h-.·e/.,· and another nurse. to (J.tsi.,·t. He bnmght .fO!nt' more lowe/s a11d I co11ti1111ed lo dry (1he rPSident) and pu1 II/.\ p_,jamajackel on. /8. It is difficult to say P.Xoc1/y how fong Mr C11/ln1 had lefl (lhe resideni) aim,.- and 1t11alle11ded. l/own•er, having regard to the cirt·umsto11c11s tllui the length of1he disruN-tu•n br.rween Mr Cullen and mysel/ I br/Jeve lhfll (the resulml) lva.,· left 111u11tended in the abnw-: stair. for up In 20 minuU:s. A very long lime 10 lem•e (m a11Pd puso11 as (the re.<idmi} was ,u,ked. tzlone and 1,t1re.ttrai11ed in a showrr cubicle. especia/1,, during wi111er. liad (ihe re,,.ide111) sriffnl'd a fit or /(11/n,, /here ..-ould be severe frgal cn11s"q11e11c;,s for the /fome 011 negligence gr(Jlt11ds.". 'v!r Ross, and later Ms Carberry, of Qucc,nsland Nurses' l 'nion of Employee�. who ap�ared for Mr Cullen, allcmptcd 10 portray thar the incident had occurred as a result of the inadequacy of Mr Cullen'.< training ancl a failure on th� part of th< empl oyer to appropriarely cxcrci,<e ii.< own duty of care t>y not ensuring that it had appropriatdy tra ined and qualified .,1aff to handle patients of th� IYJ><> which Mr Cullen had had diffi<.:ulrics w11h. In this regard they .suggested in cross-?xarnination and $Uomis.sinn.< that the Gmployer had failed 10 support Mr Cullrn hy: no1 following up 011 <:arlicr inddent repons ,nvolving aggre.ssion hy (the resid"nll 1oward.s ;\1r C.'ullt-n: failing 10 e.nsu re that Mr Cullen a11cndcd rrnining conducted by it ahout technique$ for handling dementia and mher patients of the type who were residenr within the Gold Coast Nursing Home: irldppropriatc, or improps-r, delegation of the duty of care 10 an inadequately trnined person vi,. Mr Cullen: and h:tving an unrealistic and unrea.sonahk expe<.1a1inn of hi.< knowledge and .<kills. Evidence was also led by the {;nion through Ms Sweeney 10 sugge.;1 tha1 th<! pnx,"Csse.< and procedure.< followed hy the Gold Coa,,t Nursi ng Home, in its care of rc.sidcnts was at (ldd, wi th modern technique.< and that the incident involving (the rc.<ident) and Mr Cullen w(luld not hav.; occurred if rhe.se new techniques had been impkmcnted di t h-, ,\'ur.,ing llnlllc. Whil.<t I have considered the mate6,d put 10 various witncsse., during GToss-exantination l>y the Q'.\:L', a, wdl ,Ls the cvic.lcrn,� of Ms Sweeney, I do nor consider that 1ha1 material lit< lhc circums1an�e.,; and facts of this CdSe. In particular, although I found the material advanced by M.s Sweeney u.seful, th.; hald reality is that she manag".s a public secror facility wh.ich h"s unique practice., and philosophies, some of which are al <l<lds with pe1licics ol>s�rved t:ls-,where by her own employer, and which also h,�, a significantly higher stafting ratio than the Gold Coast ·ur.sing Honl<!. lmportantly, Ms Sweeney conceded in the final <JU<,.stion of her .:ro.,s-<>xamination that there was nothing heforc her which would suggest that the stand,,rd of C'dre heing delivered at rhc �ursing Home wa.< nor of a kvd which would he rca.,ooahly expected. 111 addirion, I do nor find on the evic.lencc prc.senled in thr.s ea& - particularly the eviden<:e of \.-lr Cullen himsdf-that the, lin ion'.s suggc.,1ion 1ha1 the employer had not ensured that Mr Cullen was adc4ua1dy trained and .supported ca n .stand. In saying thar I do n<ll .suggest that the employer'.< follow-up and suppon of :\-tr Culkn wa.s pcrt'<'<.'.t hut. noncthek,s, I am sati.sfied hy his clear and dire�'\ an..sw.::r.< tu ques1ions pur I(> him in C-To.ss cxamination that Mr Cullen was, at all limes, sufficiently wc;ll-trained to enable him to work in rho po.sition of As.si.stant in '.'iursing ar t.h-, Gold Coa.,t t\'.ursing Home. I ha v-, reached this �-onclusion notwith.standing the matc:rial prcsemecl in cross-examination and .sul>mi.ssions hy the QNC. It S<!<!n'led 10 me that "ac·h of Mr Ross and M.s Carberry concentrated 100 much on the alleged shortcoming.< of the. employa'.< sy.stem., and policie.< (especially its lack of support for Mr Cullen a.f1er the incident with (the re.<ide.m)), and the alleged maladministration of them hy M� Dawkins, and that IO<) little allention was paid to the � skills and knowledge that '.\1r Cllll�n pos�c.ssed. 25925_ J . DOC -- 1 of 2 -- - 1 30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE 20 February, I 998 I am al.so satisfied hy �r Cullen 's answers to questions put to him that he was. at all times, fully aware of hi.s obligations in respe�1 to (the resident) and that he wa.s also fully aware of the duly which he had 10 ensure that he looked after the physical and menial health and safety of {the resident) and treated him with dig.oily and re.<pect. I am also satisfied (by his answe.rs) 1ha1 Mr Culkn was, at all times, fully aware of the need to "withdraw" from a situation with a resident who was beooming difficult or confrontationa list. By saying "withdraw" I do not mean leaving (the resident) alone. I mean stopping or discon1inuing a particular activity - in this case undres.<ing and showering (the resident) - until the situation was under control with (the resident) showing no signs of aggre.ssion or violent hehaviour. \;nfortunately, Mr Cullen O()( only did not follow his training he compounded the problem hy his own ac1ions and behaviour in con1inuing lo involve himse.lf in an ou1 of control situation with (Lhe rc.sidcnl) which had devdoped to the point where, on his own admi�sion, he had enleroed into a tug-of-war for control of the shower nozz,lc. Based upon my review of the evidence l am satisfied that the matter staned to get out of control when Mr Cullen overforcdully re.moved (the re.5ident' s) clothing a11d he stane.d to he<:ome re�istive and al_(gressive (.see Ms Seag,x•� evidence al p . 204). Mr Cullen's own detailed .<tatemenl prep.trcd <)n the day of the incident ,11gge.,u that lhe aggression hy (the resident) involved twi,ting Mr Cullen· .s arm, hiting his hand and punching his .<tomach. Mr Cullen's Lr«ining d1Ct<1-ted that he should not have continued with the showering and 1ha1 he should have attempwd to calm (the re.sident} down. The worst thing thal he could have done wa.s to continue to attempt 10 shower (the resident) in his aggressive state. ,\:; Mr Culk,n continuod to attempl to shower (the r?.sident) he continued to throw punches and grah at Mr Cullen·, arm. By that lime Mr Cullen should have summons"d dssi.,tance. However he did not do so. Contrary to all that he kn�w to he the com,ct 1hing to do he auempted h) ,ontmue 10 shower (the resident) whit.,, (lhc re.,idcnt) continued to ra.si.st him by punching, grahhing his arm and other pan.� of his anatomy. Uumatdy he entered into d tug-of-war over the <.:0ntrol ol the .shower noule. It was during that tug- of- war that (the re.sident) wa_s apparently injured. Whil�t what ha-< been referred to ahow ran <:ounter to all of Mr Cullen's training. and would have justifiably resulted m him receiving (at k.a.st) a very serious wa.rmng, what then occurred wa.<- unforgivabl� anJ, in my vi-.!v,•, justifies the .omployd s decision 10 tem1.inate hi.s scrviceS. Mr Cullen was alone with an 82 year old, bl ind and partially tkaf dementia patient wh<) had, I al'C<J)(, heen injur�d after having t,e.,n hit in the forehead hy th� shower nozzle which (the re.sidenl) a nd Mr Cullen were fighting for control of. (The resident) wa.s wet and hleeding ye.I Mr Cullen chose. not to press the ernagency buz.z.;r, ev�n at thi.s point. but claim< 10 have gone looking for .iomeone "to talk to". After having read Mr Culkn 's statement prepared on the day, and having heard hi., cviden<.-e and 1hat of Ms Dawkins and Ms Pauerson, I have reached the conc:lusion that Mr Cullen simply ahandoned (the r"-Sident) in the shower cubicle and started to leave the nursing home. Even if that conclusion he wrong \1r Cullen de.mort<lralc.d that 1here was no urgency in Lhe situation by foiling to prcs.< the huuer immediatdy atkr (the resident) released him, by failing 10 call out for assistance. and by walking vinually from one end of the nursing home 10 lhc other without seeking some assistance. When he finally did encounter Ms Dawkins he acted as if th� indde111 had o<:cucred some time previoo�ly and that he .<imply want�d to dist·us.< wha1 had happened. There wa, no urgency in his apprnad1. That would not have heen the ca.sc if he really lldd gone looking for assistance. It was only after some time 1hat Ms Dawkin.< realised that (the resident} had hcen left alone in the shower cuhiclc hy Mr Cullen in his naked, wet and injured stale and she ru.<hed off 10 his aid. ln my view che employer';<: decision 10 terminate Mr Cullen's �ervices was fully justified on 1he ha.<is of his involvement in the incident .-, I have d�-�cribed it. l lowe\'er, in addition to the incident as I haw dest,-ihcd it, the employer also took inlO a.:counl that Mr Cullen had informed Ms Dawkins on 1 2 June 1 997 that he had lashed out at (the r"sid.ent) and that the injury had occurr«d ,Ls a result of that action. Later, when Mr Cullen wa.s quizzed al1<1ut that admission in the pre.�ence of the Organiser from the QNU on 1 5 June 1997 he confirmed that he had informed Ms Dawkins that he had hit (the re,�idem) hut also said that what he had originally told her was not correct and that (the resident) had injured him.self by g_rahbing at Mr Culle.n·s arm and the shower nozzle which hit him in the forehead when he pulled it towards himself. In Sangwm v lmoge11 Pty Lui an unreponed decision of von Doossa J on 8 March 1996 His Honour said:- "Sec1io11 /70DE(J) should 1101 be construed .,o as to exclude from rhe 11orio11 of a 'valid re<lS011 · an hone.<r beliefheld 011 reasonable grounds by the employer, after mq11iry of the rype envisaged in Bi-Lo Pt)' I.Jd v. Hooper ((1994) .H IR 224). rhat a srarP offact eri.,·rs which justifies tenni11atio11 of 1he employmenr. /11 my opi11io11 if rhe emplo.�er ho11esrly beliew,s 011 reasonable grou11ds af1er .rnfficieflt inquiry 1h01 rhe employee ha., bee11 guilry of serious miscoruiuct a valid ground wirhin 1he mea11fog of s. 170D£( I) exi.us for lenninating the employne11t of the employee.''. In Bi-Lo Pty [Jd v. Hooper ( 1 994) 53 JR 224 al 229. the Full C,)nm1issioo said:- "Where the dismiual is based upon the alleged misco11duc1 of the employee. rhe employer will wtisfy the evidenriary °'"'·' which is ca.,·1 upon i1 if ir demo11s1ra1es rliar imofar as wa.s within its power, before dismissing the e1nployee, it conducred a., full arul exrensive i11ves11garion inro all of rhe relewmr marrers .511rroundi11g rhe alleged misconducr as was reasonable ;,, rhe circuml'lances; it gave lhe employee every rea.l'onable opporrunity and s11fficie111 lime ro a11swer all allegarions and respo11d thereto; and thar having done 1/tose 1hi,.gs 1he eml'loyer lwnes1ly cmd genuinely believed and had reaso,.able grounds for believing 011 rlie i11fonnario11 available ar thar rime 1/ull 1/ze employee >«1.\ gui/ry of 1he misconducr alleged; and rlwl. raking inro accounl a11y mirigating circ11msra11ces ei1her a.l'.Wici(Jfed wirh rhe misconduct or the employe_e's ,-vork record, .,·uch misconducl ;11.,ri[ied dismissal. A failure ro satisfac1orily eswblish any of 1hose nw/ler.< will probably render the dismissal har.,h, 1mj11sr or 1mreasoru1ble.''. In this case, where Mr Cullen conceded that he /rad informed Ms Dawkins that he had hit (the resident) when he first diwus.sed the inciden1 with her on 1 2 June and where he confirmed (again) on I 5 June 1997 that he had earlier .said that he had hit the re.sident but that the statement wa-' wrong, .it i.s not surprising that 1he employer cho.se to treat with some .<cep1ici.sm the attempted re1raction of the earlier advice. Based on the authorities above the employer may have heen able to rely upon its hones1 and genuine helief that Mr Cullen'., earlier admission that he had hit (the resident) was �orrect and that he was, therefore, guilty of mi.<conduct. However, although the employ«r included that ground as one of the ground.< which justified Mr Cullen's dismissal it did not rely upon his admittance alone. It also re.lied upon the fact that Mr Cullen had left (the resident) unattended in 1he shower cubicle i n a naked. wet and hkediog stale and that he. had admiued to wanting to kave the nursing home wi1hou1 informing the Registered Nurse of the incident involving (the resident). The employer also relied upon the fact that Mr Cullen had aue.mpted to shower (the resid-,nt) alone in contravention of the J\:ursing Care Plan. This charge wa., nol proved, in my view, hecau�e I am n()( satisfied that ii was pat1 of the Plan at th� time of the incident. Furth<>r, the c,·idence established that the policy was not follow�d on the day by �s Dawkins on two occasions and that Ms Seagor, the ()(her ,\I\' at the time, did not know ahout that aspect of the Plan. I am satistie.d that the employer had a numher of sound, defon.<ible an<I well-founded reasons lo support its decision to dismis..< Mr Cullen. Indeed. I am satisfied that the employer would have been entitled lo rely upon the actions of Mr Cullen having left (the re.5ident) alone in a naked, wet and injured state a., a sufficient ground itself to ju.stify his dismissal. I am also .sall.sficd that he was given a rea.sonahle opportunity prior to his dismi.<.sal to an.swer the allegations against him. 20 Febrnary, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE Ha\'ing consiJ-,r-,d all <>f the evidence, all of the cxhil'>il.s and all of 1hc submissions I have reached the conclusion that 1hae wa., nothmg harsh. unJUSt or unreasonable ahout the employer's decision to terminate Mr Culkn's services on 16 June 1997. Further. I am satistie.d that the action, of .Mr Cullen on the day in question con.stitute misconduG1 of a type that would have made it unrca.<onahk m require the employer to continue his employment during 1ho noiice pcrio<l and, that a-< a result of that finding, the employer wa-sjustified in summarily di.smissing him from employment. For the ahove rc,c<on< I dismiss the application. I make no order "'' 10 c,.>."l'-. A.L. BLOOMFIELD, Commissioner. Appniranre.r:- Mr S. R<l�.s and M� J. Carherry of the Que,rnsland Nurs.,s· Union of Employees for \1r B. Cullen. Mr N. Tirno, of \-Iii.as W1H Pannership, with Ms B. Dawkins for the Gold Coast "-ursing Home. Opcrntiw Dale: '\IA Decision - R"inst.atem.,nt Keleased: 6 F<">hruary 1998 ###########11##11#####################11##11################## 1 3 1 -- 2 of 2 --