FEDERAL COURT OF AUSTRALIA

Metcalfe v Clayton Church Homes Incorporated [2015] FCA 219

Citation:	Metcalfe v Clayton Church Homes Incorporated [2015] FCA 219	
		
Parties:	BERNADETTE METCALFE v CLAYTON CHURCH HOMES INCORPORATED, ANDREW CASE and ALISON CASE	
		
File number:	SAD 56 of 2013	
		
Judge:	BESANKO J	
		
Date of judgment:	16 March 2015	
		
Catchwords:	INDUSTRIAL LAW – exercise of workplace rights –– claim for workers compensation and claim to return to work in previous role at previous workplace – complaint to regulatory authority about safety of workplace 

INDUSTRIAL LAW – adverse action – whether criticism about completion of applicant’s timesheets constituted adverse action – whether deducting amounts by which applicant allegedly overpaid from applicant’s wages constituted adverse action – whether making allegedly unsubstantiated allegations about applicant’s nursing practice constituted adverse action – whether alleged failure to minimise exposure of applicant to cat dander in workplace constituted adverse action – removal of applicant from work roster due to open-ended medical certificate constituted adverse action – termination of the applicant’s employment constituted adverse action 

INDUSTRIAL LAW – whether adverse action taken against applicant because of applicant’s exercise of workplace rights – application of presumption that action taken for proscribed reason – relief for adverse action – Fair Work Act 2009 (Cth) ss 340(1), 361(1)

Held: Application dismissed.  	
		
Legislation:	Fair Work Act 2009 (Cth) ss 340, 342, 346, 360, 361, 545, 546, 682
Workers Rehabilitation and Compensation Act 1986 (SA) ss 26, 28A, 58B
Workplace Relations Act 1996 (Cth) 	
		
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1
Construction, Forestry, Mining & Energy Union v Boom Logistics Ltd [2013] FCA 1472
Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467
General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235
Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1
Ramos v Good Samaritan Industries [2013] FCA 30 	
		
Dates of hearing:	28, 29, 30, 31 July, 1, 4 August, 22, 23, 24 September 2014	
		
Place:	Adelaide	
		
Division:	FAIR WORK DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	182	
		
Counsel for the Applicant:	Dr RF Gray (22, 23, 24 September 2014)
Ms EF Nelson QC with Mr T Bourne (28, 29, 30, 31 July, 1, 4 August 2014)	
		
Solicitor for the Applicant:	Lieschke & Weatherill Lawyers (from 16 September 2014)
Bourne Lawyers (until 10 September 2014)	
		
Counsel for the Respondents:	Dr CD Bleby SC	
		
Solicitor for the Respondents:	EMA Legal	

IN THE FEDERAL COURT OF AUSTRALIA		
SOUTH AUSTRALIA DISTRICT REGISTRY		
FAIR WORK DIVISION	SAD 56 of 2013	
 
BETWEEN:	BERNADETTE METCALFE
Applicant
	
AND:	CLAYTON CHURCH HOMES INCORPORATED
First Respondent

ANDREW CASE
Second Respondent

ALISON CASE
Third Respondent

JUDGE:	BESANKO J	
DATE OF ORDER:	16 march 2015	
WHERE MADE:	ADELAIDE	

THE COURT ORDERS THAT:

1.	The application be dismissed.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
SOUTH AUSTRALIA DISTRICT REGISTRY		
FAIR WORK DIVISION	SAD 56 of 2013	
 
BETWEEN:	BERNADETTE METCALFE
Applicant
	
AND:	CLAYTON CHURCH HOMES INCORPORATED
First Respondent

ANDREW CASE
Second Respondent

ALISON CASE
Third Respondent

JUDGE:	BESANKO J	
DATE:	16 march 2015	
PLACE:	ADELAIDE	

REASONS FOR JUDGMENT
INTRODUCTION
1		The applicant in this proceeding is Ms Bernadette Metcalfe.  She is a registered nurse and she was employed by Clayton Church Homes Incorporated (“CCH”) from 2 June 1991 to 3 December 2012.  CCH is the first respondent, and it is an approved provider of aged care pursuant to Part 2.1 of the Aged Care Act 1997 (Cth).  CCH operates aged care facilities at Prospect, Elizabeth Park and Magill in the State of South Australia.  Between 2 June 1991 and September 2000, Ms Metcalfe was employed by CCH as a registered nurse at an aged care facility which was then operated by CCH at Norwood in the State of South Australia.  After September 2000, Ms Metcalfe was employed by CCH as a registered nurse in its facility at Prospect.  CCH terminated Ms Metcalfe’s employment for serious and wilful misconduct, effective on 3 December 2012.  
2		The second respondent is Mr Andrew Case and he commenced employment with CCH on 22 January 2001.  In January 2004, he was appointed as the chief executive officer of CCH and he continued in that position until he resigned in September 2014.  The third respondent is Ms Alison Case and she commenced employment with CCH on 15 November 2004.  From 3 June 2009, Ms Case has been employed by CCH as the manager of residential facilities.  Mr Case and Ms Case are married.  
3		Ms Metcalfe claims in this proceeding that, between about October 2011 and the termination of her employment in early December 2012, CCH contravened s 340(1) of the Fair Work Act 2009 (Cth) (“the Act”).  Her case is that it took adverse action against her during that period because she had exercised workplace rights between December 2010 and October 2011.  Section 340(1) of the Act is in the following terms:
(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

(iii)	proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

	(b)	to prevent the exercise of a workplace right by the other person.

The note in s 340(1) of the Act provides that the subsection is a civil remedy provision.  Although it is not expressly pleaded, Ms Metcalfe’s case is that Mr Case and Ms Case were each involved in the contravention within s 550 of the Act and are taken themselves to have contravened s 340(1) of the Act.
4		Ms Metcalfe alleges that she exercised a number of workplace rights during the course of her employment by CCH between December 2010 and October 2011.  The pleading concerning the exercise of workplace rights is important and I will set it out in full:
PARTICULARS OF EXERCISE OF WORKPLACE RIGHTS

10.1	By claim form dated 22 December 2012, the applicant claimed compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) for a disability, namely allergy, with sinusitis rhinitis affecting eyes, throat, voice and smell, arising out of her employment with the first respondent.  Liability to pay compensation in respect of the disability was accepted by the compensating authority by letter dated 6 June 2011.

10.2	As a consequence of her compensable disability, the applicant was unfit to return to work where she would be exposed to cat dander.  The first respondent’s facility at Prospect had a resident cat, which had been the cause of the applicant’s disability.

10.3	By letter from Bourne Lawyers on behalf of the applicant to the compensating authority dated 8 September 2011, the applicant sought to exercise her rights pursuant to secs 26 and 56B of the Workers Rehabilitation and Compensation Act 1986 (SA) namely to return to work in her previous role at her previous workplace and for the first respondent to take all reasonable steps to reduce or eliminate the applicant’s exposure to cat allergens.

10.4	The applicant pursued her workplace rights with respect to a return to work including by way of a case conference on 15 September 2011 convened by the compensating authority and attended by the second respondent on behalf of the first respondent.

10.5	As a result of the applicant exercising her return to work rights, and over the objection and resistance of the second respondent, she returned to work at the respondent’s Prospect facility on 26 October 2011.

10.6	The applicant continued to claim workers compensation for absences from work and medical treatment related to her compensable disability.

10.7 	In or about early 2012, the applicant reported the first respondent’s facility at Prospect to SafeWork SA for investigation as an unsafe workplace pursuant to the Occupational Health, Safety & Welfare Act 1986 (SA).

5		The evidence establishes that there are some clear errors in the dates set out in the above paragraphs.  The date of the claim form referred to in paragraph 10.1 is, in fact, 23 December 2010, and the date of the complaint to SafeWork SA referred to in paragraph 10.7 is, in fact, early 2011.  The evidence is that Ms Metcalfe returned to work on 19 October 2011.
6		Ms Metcalfe alleges that CCH, through the decisions and actions of Mr Case and Ms Case, took adverse action against her because she exercised the workplace rights set out above.  Again, the pleading concerning the adverse action is important and I will set it out in full:
PARTICULARS OF ADVERSE ACTION TAKEN BY THE RESPONDENTS

11.1	On and from October 2011, the first respondent through the second respondent and third respondent routinely targeted the applicant for complaint and admonishment, including with respect to:-

11.1.1	Criticism and instruction about the completion by the applicant of timesheets recording her hours of work.

11.1.2	Deduction without authority from the applicant’s wages of amounts asserted by the first respondent to have been overpaid to the applicant as a consequence of her workers compensation claim.

11.1.3	Unsubstantiated allegations by letter dated 27 January 2012 concerning the applicant’s nursing practice.

11.1.4	Failure to take any steps to minimize exposure of the applicant to cat dander in the workplace.

11.1.5	Directing the applicant on 28 September 2012 not to report for asserting without cause that her attendance would constitute an occupational health and safety risk.

11.1.6	Placed the applicant on sick leave when she was fit for work.

11.1.7	Denying the applicant penalty rates and entitlements in respect of shifts where she was ready, willing and able to work but effectively stood down by the first respondent on sick leave.

11.2	By letter dated 9 November 2012 instigated disciplinary action, suspending the applicant on full pay whilst an investigation was conducted.

11.3	Failed to ensure that the investigation was undertaken independently and impartially.

11.4	By letter dated 3 December 2012 terminated the applicant’s employment with the first respondent.

11.5	By letter dated 14 December 2012 reported alleged unprofessional conduct by the applicant to the regulatory authority of nurses, the Australian Health Practitioner Regulation Agency.

7		Section 360 of the Act provides that for the purposes of s 340 (among other provisions) a person takes action for a particular reason if the reasons for the action include that reason.  Section 361(1) of the Act provides, relevantly:
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, in proceedings arising from the application, that the action was, or is being, taken for that reason or for that intent, unless the person proves otherwise.

8		Ms Metcalfe’s case as pleaded and conducted involved three elements.  First, it involved an assertion that she has exercised workplace rights.  That is not in dispute.  Secondly, she must establish that CCH has taken adverse action against her.  That term is defined in s 342(1) of the Act (relevantly for present purposes) as where the employer:
(a)	dismisses the employee; or

(b)	injures the employee in his or her employment; or

(c)	alters the position of the employee to the employee’s prejudice; or

(d)	discriminates between the employee and other employees of the employer.

There is no dispute that termination is adverse action but, in relation to some of the other acts, CCH submits that they do not constitute adverse action.  Thirdly, the action must have been taken for a proscribed reason, in this case, because Ms Metcalfe exercised workplace rights.  As I have said, Ms Metcalfe has the benefit of the presumption in s 361(1) of the Act.
9		Ms Metcalfe seeks reinstatement to her former position with CCH (s 545(2)(c)), compensation (s 545(2)(b)), and pecuniary penalties (s 546(1) and (3)).
10		In terms of the facts, a broad overview of Ms Metcalfe’s case is as follows.  She exercised various workplace rights relating to a workers compensation claim and a complaint to SafeWork SA between December 2010 and October 2011.  The respondents took adverse action against her by various acts between October 2011 and December 2012.  The main focus of her case, and the respondents’ defence to it, was the termination of her employment by CCH in December 2012.  That was the alleged adverse action which was the most significant and the adverse action which formed the basis of her claim for substantial compensation.  It is important to note that, on Ms Metcalfe’s case, the events between December 2010 and October 2011 are significant, not only because they involved Ms Metcalfe exercising workplace rights, but also because they show that the respondents developed and displayed an antagonism, or hostility, or negativity towards her.  It was put in various ways, but the thrust of Ms Metcalfe’s case was that the respondents treated her workers compensation claim harshly or negatively and that that was relevant to the inferences which should be drawn, and the evidence which should be accepted, as to the reasons for the adverse action subsequently taken against her, particularly the termination of her employment.
11		On the sixth day of the hearing, counsel told me that they had agreed to a settlement of Ms Metcalfe’s claim.  I was told that that settlement was subject to certain matters that needed to be finally determined in the workers compensation jurisdiction in relation to a workers compensation claim made by Ms Metcalfe.  I was told that it was anticipated that that would happen the following week.  With some hesitation, due to the fact that I was part way through the hearing, I decided to accede to the request of the parties.  When the matter was called back on approximately three weeks later, I was told that the matter had not resolved despite the understanding of counsel for Ms Metcalfe.  I was told that Ms Metcalfe’s solicitors and counsel would no longer act for her, and that she would engage new solicitors and counsel.  Counsel for the respondents told me that they were planning to bring a proceeding to enforce the settlement, but that proceeding never eventuated.  Ms Metcalfe engaged new solicitors and counsel, and they represented her at the resumed hearing.
WITNESSES
12		Ms Metcalfe gave evidence and she called as witnesses, Ms Michelle Evans and Mr Michael Devine.
13		Ms Metcalfe was subject to a long and searching cross-examination.  She was an unsatisfactory witness in a number of respects.  It is the combination of the following matters which has led me to that conclusion.
14		First, on a number of occasions during cross-examination she did not answer the question in a straightforward fashion, or she used the question as an opportunity to give an answer which she considered advanced her case.  There are examples recorded in the transcript (at pages 54, 55, 56, 84, and 147).  
15		Secondly, I do not accept Ms Metcalfe’s evidence that, at a case conference on 29 June 2011, Mr Headland said that CCH had introduced cats into each of its other facilities.  I prefer Mr Headland’s evidence on that point.
16		Thirdly, in my opinion, Ms Metcalfe’s ability to give a balanced and accurate account of events is to be questioned in light of instructions she gave to Ms Evans in September 2012.  She gave Ms Evans instructions to write to CCH about certain adjustments to her pay.  One such adjustment was a deduction from her pay of approximately $52 per pay period which Ms Metcalfe told Ms Evans had occurred without consultation.  Ms Evans subsequently made an assertion to that effect in correspondence she sent to Mr Case.  In fact, there had been a long line of correspondence between CCH and Ms Metcalfe about the issue dating back to December 2011, and a complaint to the Fair Work Ombudsman (“FWO”).  That correspondence and the complaint is summarised later in these reasons (at [139]-[141]).  It is difficult to understand why Ms Metcalfe did not refer Ms Evans to that correspondence and the outcome of the complaint, even if she believed she was not consulted about the deductions.
17		Fourthly, Ms Metcalfe gave evidence that at the shift changeover at 10.45 pm on 8 November 2012, the enrolled nurse, Ms Jennifer Rose, told her that Resident B had slept all of her shift, and that she had not had to do anything for her.  Ms Rose said in evidence that she had no recollection of saying that to Ms Metcalfe and that it was, in any event, inconsistent with the administration by her of seven different medications and Resident B’s progress notes.  I prefer the evidence of Ms Rose, who was an honest witness, and the objective evidence, to the evidence given by Ms Metcalfe.
18		Fifthly, Ms Metcalfe gave evidence that various medication charts were blank when she administered 30 mg of oxazepam to Resident B at 12.20 pm on 9 November 2012.  At one of the meetings convened to discuss her administration of the drug, she said that she was not sure where she obtained the drug which she administered, and that she may have borrowed it.  For reasons I will set out, I think a Webster pack of medication had arrived at the Prospect facility on 8 November 2012, that Ms Rose had administered 30 mg of oxazepam to Resident B at about 8.00 pm on 8 November 2012, and that she had recorded the administration of the drug in a Royal Adelaide Hospital (“RAH”) Pharmacy Order and Administration Chart which formed part of Resident B’s notes.
19		Ms Michelle Evans is an industrial officer who was employed by the Australian Nursing and Midwifery Federation (SA Branch) (“ANMF”) between May 2009 and April 2013.  Ms Metcalfe sought the assistance of the ANMF with respect to various industrial and workers compensation issues arising out of her employment by CCH. Ms Evans first became involved in these issues in September 2011, and she continued to assist Ms Metcalfe up to and after the termination of the latter’s employment.  Ms Evans was an honest witness, and I accept her evidence.
20		Mr Michael Devine is an enrolled nurse.  Between October and December 2012, he undertook a placement with the ANMF and he would, from time to time, accompany different industrial officers to different worksites.  Mr Devine assisted Ms Metcalfe with industrial issues and workers compensation issues involving CCH.  Mr Devine was an honest witness, and I accept his evidence.
21		The respondents called seven witnesses.
22		Mr Case was the person who decided that Ms Metcalfe’s employment by CCH should be terminated for serious and wilful misconduct and he was closely involved in a number of the key events.  He was subject to a long and searching cross-examination, and I have considered his evidence carefully.  I think his evidence as to the critical issues (which are discussed below) should be accepted.
23		Ms Case was, at the relevant times, manager of CCH’s residential facilities.  She was involved in some, but not all, of the relevant events.  Ms Case was an honest witness, and I accept her evidence.
24		Mr Christopher Headland was employed by CCH between August 2010 and early January 2012.  He was employed as the Manager, Human Resources and Business Development, and then in 2011, his title changed to Manager, Human Resources.  He was involved in a number of the relevant events.  Mr Headland was an honest witness, and I accept his evidence.
25		Mr Michael Newman was employed by CCH in February 2012.  He took over Mr Headland’s role as Manager, Human Resources.  He was involved in a number of the relevant events.  Although cross-examination revealed that his recollection of some of the relevant events was not clear and precise, I think that he was an honest witness. 
26		Ms Nancy Dilena was employed by CCH as finance manager in 2011.  In December 2011, she sent correspondence to, and received correspondence from, Ms Metcalfe about amounts overpaid to Ms Metcalfe.  Ms Dilena was an honest witness, and I accept her evidence.
27		Ms Anne Gibney was employed as the site co-ordinator at the Prospect facility by CCH from April 2010 to September 2013.  She was involved in the daily running of the facility and that included ensuring that there were adequate staff, preparing rosters, ensuring residents were properly cared for, dealing with complaints by family members of residents, and dealing with staff members.  She reported to Ms Case.  She was involved in a number of the relevant events.  Ms Gibney was an honest witness, and I accept her evidence.
28		Ms Jennifer Rose is an enrolled nurse who commenced employment with CCH in 1991.  In November 2012, she was working the afternoon shift (2.45 pm – 11.00 pm) at the Prospect facility.  She attended to Resident B on 8 November 2012.  As I have said, Ms Rose was plainly an honest witness, and I accept her evidence.
MEDICAL AND PHARMACEUTICAL TERMS
29		A major reason given by CCH for the termination of Ms Metcalfe’s employment was her unauthorised administration of oxazepam to two residents of the Prospect facility, one on 28 October 2012, and the other on 9 November 2012.  The circumstances surrounding those incidents were the subject of a good deal of evidence, but neither party suggested that the result of the case turned on a finding as to whether the administration was authorised or otherwise.  It was Mr Case’s reasons for deciding that Ms Metcalfe’s employment should be terminated which were critical.  It is perhaps for that reason that some of the evidence about the administration of oxazepam was fairly general.
30		Oxazepam was described by Ms Metcalfe as an antipsychotic drug and “it really is for mood change”.  Sometimes it has a slight calming effect and at other times it does not have that effect.  Ms Gibney described it as a drug that can be a sedative, and that it is also “used for anxiety to be – as a calming effect”.
31		Oxazepam was described in the evidence as a prescribed and scheduled drug.  There must be a doctor’s order in relation to its administration.
32		There are various types of orders or doses for a drug such as oxazepam.  There can be a regular doctor’s order which is an order for the drug to be administered over a particular interval, often once a day, morning (mane) or night (nocte).  A regular time for the administration of the drug can be assigned administratively, that is, by someone other than the doctor prescribing the drug, so that, for example, the relevant chart will show that the morning dose is given at 8.00 am, or the dose at night is given at 8.00 pm.
33		A “PRN” (pro re nata) order is “as required” medication which confers on the nurse whose responsibility it is to administer the drug, a discretion as to when the drug is administered depending on the regularity which the prescription permits.
34		A “statim” or “stat” dose is a once-off dose which requires its own separate doctor’s order (Mr Devine), or must be based on a doctor’s previous order or authority (Ms Evans).
THE TEST AS TO WHETHER THERE HAS BEEN A CONTRAVENTION
35		It is convenient at this point to state the relevant legal test for determining whether there has been a contravention of s 340(1) of the Act and that can be done, conveniently, by reference to the most serious act of adverse action alleged in this case, namely, the termination of Ms Metcalfe’s employment for serious and wilful misconduct.  As I have said, Mr Case made that decision of behalf of CCH.
36		Termination of employment is adverse action within the Act (s 342).  As I have said, Ms Metcalfe alleges in her statement of claim that the respondents took that action because she exercised workplace rights.  It is therefore presumed that the action was taken for that reason unless the respondents prove otherwise.  The respondents must show that Mr Case’s reasons for terminating Ms Metcalfe’s employment did not include as a substantial and operative reason, the reason that Ms Metcalfe had exercised workplace rights (General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J (as his Honour then was); Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500 (“Bendigo v Barclay”) at 522, [57] per French CJ and Crennan J).
37		The High Court in Bendigo v Barclay considered the correct approach to the question in a case where there is evidence from the decision-maker as to his or her reasons for taking action, and relevant evidence from other witnesses or objective evidence.  The case involved an alleged contravention of s 346 of the Act rather than s 340(1) of the Act, but there is no reason to think that, on this aspect, there is a material difference between the two (Construction, Forestry, Mining & Energy Union v Boom Logistics Ltd [2013] FCA 1472 at [5] per Dowsett J).
38		In Bendigo v Barclay, French CJ and Crennan J rejected the approach of the majority of the Full Court of this Court to the effect that the employer failed “unless the evidence in the proceeding objectively established that the employer’s reason for taking adverse action was dissociated from any reason prohibited by s 346” (at 506, [6] per French CJ and Crennan J).
39		Their Honours said (at 517, [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding.  Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.  Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence.  However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

(Footnote omitted).
40		Their Honours also referred with approval (at 522, [57]) to the observations of Mason J  (as his Honour then was) in General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 that the reason must be a substantial and operative factor in the employer’s reasons.
41		Gummow and Hayne JJ said (at 542, [127]):
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee.  In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the “decision maker” at the time the adverse action was taken which was the focus of the inquiry.

42		Heydon J said (at 544, [140]):
Dr Louise Harvey was the appellant’s Chief Executive Officer.  Mr Greg Barclay, the first respondent, was an employee of the appellant.  He was also an officer of the second respondent, a trade union.  She suspended him from duty and took other measures against him.  The question was whether she did this “because” he had engaged in industrial activity within the meaning of s 346 of the Fair Work Act 2009 (Cth) (“the Act”).  The word “because” requires an investigation of Dr Harvey’s reasons for her conduct.  Section 360 provided that “a person takes action for a particular reason if the reasons for the action include that reason”.  The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an “operative or immediate reason for the action”.  Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise.  Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.  
(Footnote omitted).
(See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1 at 6, [19]–[22] per French CJ and Kiefel J; at 19, [93] per Gageler J.)
43		This Court has applied the Bendigo v Barclay test in a number of subsequent cases (for example, Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 at [33]-[40] per Gilmour J; Ramos v Good Samaritan Industries [2013] FCA 30 at [140] per Barker J).
44		The balance of these reasons is divided into two sections.  The first section contains a statement of the main events between about August 2010 and December 2012.  It is based on authentic documents or evidence not seriously challenged.  The second section contains my findings and conclusions with respect to each act of adverse action alleged by Ms Metcalfe.
THE MAIN EVENTS BETWEEN ABOUT AUGUST 2010 AND DECEMBER 2012
45		CCH’s facility at Norwood had 48 beds.  When it was closed, the beds, residents and most of CCH’s employees at Norwood were transferred to the Prospect facility.  The Prospect facility is a high care facility with 61 beds.  The facility at Elizabeth Park is a low care facility with 60 beds, and the Magill facility is a low care facility with 95 beds.
46		At the Prospect facility, Ms Metcalfe worked permanent night shift from 10.45 pm to 7 am each night, six nights per fortnight which included one weekend.  During the time that she was employed by CCH, Ms Metcalfe maintained concurrent employment at a different aged care facility with a different employer.  Since the termination of her employment by CCH, she has maintained that employment, working the same shifts as before with occasional extra shifts when asked to cover for other staff.  
47		At the Prospect facility, Ms Metcalfe was the registered nurse in charge on night duty and she was responsible for all staff and the 61 residents.  She was the only registered nurse employed on night duty across the three aged care facilities operated by CCH, and she described herself as the professional point of reference for CCH’s employees at the Elizabeth Park facility and the Magill facility, as well as the Prospect facility.  
48		Before 2006, a cat had been coming onto the site at Prospect.  In 2006, Mr Case gave approval for the cat to live permanently in the Prospect facility.  He did that because he could see that the residents were very fond of the cat, and he could see first hand the benefit of having a pet on the site.  The cat was called Smudge.
49		In late 2008, Ms Metcalfe developed a number of symptoms which she said she experienced mostly whilst at the Prospect facility.  She identified the symptoms as sneezing, runny eyes and nose, a violent and continuous cough, and a loss of the sense of smell.  Her symptoms gradually worsened and she consulted her general practitioner.  Thereafter, she was referred to Dr Michael Schultz, who is an ear, nose and throat surgeon.  He undertook a surgical procedure in July 2009.  The procedure relieved Ms Metcalfe’s symptoms, but only for a short time.  Her symptoms reappeared within a week or two of her return to work.  She went back to see her general practitioner and she was prescribed antibiotics and the use of an oral puffer for the administration of a steroid.  
50		In early 2010, Ms Metcalfe raised a query with the ANMF about her ability to give authority over the telephone to carers in other facilities to administer prescription drugs.  
51		In early 2010, Ms Metcalfe was investigated by CCH for an alleged breach of standards and responsibilities for failing to provide clinical consultation for medication to a resident on 18 February 2010.  On 3 March 2010, CCH advised Ms Metcalfe that it had completed its investigation of the matter and that it had determined that she had no case to answer.  
52		In August 2010, an issue arose between Ms Metcalfe and CCH about whether the former could take some of her annual leave over Christmas 2010.  The issue is relevant because it explains a comment Mr Headland made in a workers compensation employer report dated 24 December 2010.  However, CCH’s treatment of the issue is not the subject of complaint by Ms Metcalfe.  In fact, in closing submissions, counsel for Ms Metcalfe contrasted the common sense practical approach of CCH and, in particular Mr Headland, to the annual leave issue with later conduct by CCH.  It would be difficult to make precise findings with respect to the annual leave issue having regard to the state of the evidence.  Fortunately, it is not necessary for me to do so.
53		In early August 2010, Ms Metcalfe applied to take annual leave over Christmas 2010 so that she could travel interstate to visit her family.  Her request was refused.  Ms Metcalfe sought the assistance of the ANMF and there was correspondence between the ANMF and CCH.  Ms Metcalfe gave evidence that, as it happened, she cancelled her request for annual leave over Christmas and requested leave from the end of January instead.  
54		Ms Gibney said that, due to the number of annual leave requests that had been received and approved in mid-2010, she circulated a memorandum dated 9 August 2010 to all staff advising that CCH would be unable to approve annual leave for November and December 2010, and January 2011.
55		On 11 August 2010, Ms Metcalfe lodged a formal application to take annual leave between 22 December 2010 and 11 January 2011.
56		Mr Headland advised Ms Gibney to discuss the matter with Ms Metcalfe, which the latter did.  Ms Gibney told Ms Metcalfe that annual leave just after the new year could be approved.  Ms Gibney approached Ms Metcalfe about the issue some time later, but Ms Metcalfe said that she was still thinking about it.  The ANMF wrote to CCH on 12 October 2010.  Ms Gibney’s recollection was that Ms Metcalfe finally applied for annual leave just after the new year, and that her application was approved.
57		Ms Metcalfe’s symptoms, as previously described, had not improved and she went back to Dr Schultz for a further assessment.  Dr Schultz advised her that repeat surgery was not possible, and he diagnosed the cause of her symptoms as an allergy.  According to Ms Metcalfe, he prescribed six weeks off work and a course of steroid treatment.  She sought a second opinion, and that second opinion was to similar effect (in general terms) to that of Dr Schultz.
58		On 22 December 2010, Dr Schultz wrote a letter addressed “To Whom It May Concern”, in relation to Ms Metcalfe’s condition  It was in the following terms:
This letter is to certify that Ms McAlary [Ms Metcalfe] has recently been diagnosed as suffering from allergy to cat hair, in the context of ongoing problems with sinonasal symptoms proving difficult to manage with a range of measures.

As such it would be highly desirable for Ms McAlary to avoid contact with cat hair in the workplace, and she has requested a period of six weeks off work whilst arrangements are being made for a cat to be removed from her work environment. Under the circumstances I believe this is a reasonable step for her to take.

59		In light of Dr Schultz’s diagnosis, Ms Metcalfe decided to make a claim for workers compensation.  She lodged a claim form dated 23 December 2010 with WorkCover SA.  She described her injury in the following terms:
Allergy to cat at work – sinusitis rhinitis affecting eyes, throat, voice, smell, cough.

She said that the injury had occurred in the following way:
When I commence work @ Clayton, I start sneezing, my eyes water, I continually cough, my nose runs.

60		She described herself as totally unfit for work and she referred to a WorkCover Medical Certificate for the period from 22 December 2010 to 2 February 2011.  She stated that she stopped work on 22 December 2010.  
61		Mr Headland wrote to Ms Metcalfe by letter dated 24 December 2010 advising her that, on that day, CCH had received her workers compensation claim form, the letter from Dr Schultz, and a pathology report from Healthscope Pathology.  Mr Headland stated that Employers Mutual Limited (“EML”) was the claims agent for WorkCover SA and that it had advised that the claim would not be able to be determined until a prescribed medical certificate was provided.  He asked Ms Metcalfe to arrange to obtain a prescribed medical certificate.  He pointed out that Dr Schultz’s letter did not provide dates of absence for the period of sickness.  He said that until such time as a medical certificate which contained details of the illness and the period of required absence from work was provided, Ms Metcalfe’s absence would be considered as “Leave With-out Pay” until 5 January 2011, and annual leave from 5 January 2011 until 30 January 2011.  
62		Mr Headland completed and dated an employer report form on 24 December 2010 in relation to Ms Metcalfe’s alleged injury at work.  One of the pro forma questions in the form asked the employer whether it queries the validity of the claim, and if so, why.  Mr Headland wrote the following in this section of the form:
The validity of this claim is queried. The worker has had annual leave application rejected for the period in which a claim is now lodged. Worker has not previously advised of any issue re cat at work or had any sick leave for alleged allergy.

63		Mr Headland confirmed in cross-examination that he had completed this section of the form because of the coincidence in dates between Ms Metcalfe’s application for annual leave and her alleged unfitness for work, and the fact that she had not previously complained of a health problem and yet, her claim stated that she had been experiencing problems for several months.
64		It seems that Dr Anthony Ridings completed a WorkCover Medical Certificate certifying Ms Metcalfe unfit for work from 17 February 2010 to 4 February 2011.  That was done by Dr Ridings on 4 January 2011, and a “screen dump” of the certificate was forwarded to Mr Headland by EML on 6 January 2011.  Mr Headland sent a copy of the screen dump of the certificate to Mr Case on the same day.
65		Ms Metcalfe disputed CCH’s decision as to how her absence from work would be treated and, again, she sought the assistance of ANMF.  The ANMF wrote to CCH on 12 January 2011 enclosing the certificate completed by Dr Ridings.  
66		On 13 January 2011, Mr Headland wrote to Ms Metcalfe pointing out her “failure” to attend a meeting convened by a rehabilitation consultant for 13 January 2011, and requesting that she attend a meeting on 19 January 2011 to discuss her sick leave and return to work.  Mr Case approved Mr Headland’s action in deciding to send this letter.
67		Ms Metcalfe responded to Mr Headland’s letter dated 24 December 2010 by letter dated 14 January 2011, wherein she retracted her application for annual leave for the period from 5 January 2011 to 30 January 2011, and requested that her absence be treated as sick leave. 
68		Ms Metcalfe did not attend the proposed meeting on 19 January 2011 and, on 20 January 2011, Mr Headland, with Mr Case’s approval, wrote to her and said that she was required to attend a disciplinary meeting on 27 January 2011 at 10 am to provide her response to the following allegations:
Ÿ	Your failure to return my telephone message left for you on 24th December 2010;

Ÿ	Your failure to attend the Rehabilitation meeting scheduled for 13th January 2011;

Ÿ	Your failure to contact me to confirm your attendance at the meeting scheduled to take place on 19th January 2011;

Ÿ	Your failure to attend the meeting scheduled on 19th January 2011;

69		On 24 January 2011, the ANMF wrote to Mr Headland on Ms Metcalfe’s behalf and it disputed a number of allegations made by Mr Headland, and said that Ms Metcalfe had been advised not to attend the “disciplinary” meeting.  After discussing the matter with Mr Headland, Mr Case decided not to take any further action in relation to the proposed disciplinary meeting.
70		In January 2011, Ms Metcalfe submitted a formal complaint to SafeWork SA about the cat in her workplace.  She said that the presence of the cat raised issues of occupational health and safety.  Mr Case responded to SafeWork SA by letter dated 9 February 2011 wherein, in essence, he disputed that CCH was not complying with its obligations concerning the health and safety of Ms Metcalfe’s workplace.
71		The identity of the complainant to SafeWork SA was not revealed to CCH, although Mr Case suspected that it was Ms Metcalfe.  On 6 July 2011, Mr Case was advised by SafeWork SA that its investigation of the complaint had been completed and that the file had been closed with no further action required.
72		On or about 6 June 2011, EML decided to accept Ms Metcalfe’s claim for compensation in relation to an allergy to a cat at work – “sinusitis rhinitis affecting eyes, throat, voice, smell, sustained on 22/10/2010” – and advised her by letter dated 6 June 2011 of her entitlements.  EML had received a number of medical reports in connection with the alleged injury, including reports of Dr Ridings (general practitioner) dated 10 February 2011 and 30 March 2011 respectively, Dr Anthony Smith (Immunologist) dated 30 March 2011 and an updated report received by EML in June 2011, and Dr Tim Hwang (Consultant Occupational Physician) dated 17 May 2011.  All of these reports addressed, among other things, Ms Metcalfe’s ability to return to work.
73		Ms Metcalfe returned to work at the Prospect facility on 19 October 2011.  Between January and October 2011, there were a number of case conferences where Ms Metcalfe’s return to work was discussed.  CCH offered Ms Metcalfe a position at an alternative facility (i.e., the Magill facility) which she declined.
74		A case conference held on 10 March 2011 was attended by Ms Metcalfe, Dr Ridings, Mr Headland, Mr Alex Gava (rehabilitation consultant), Ms Cheree Pertini (industrial officer), and Mr Pierre-Charles Allauch (psychologist).  The further action contemplated at the conclusion of the meeting was identified in the record of the meeting as follows:
Ÿ	Ms Metcalfe will attempt to bring forward her appointment with Dr Smith, Allergist, and undergo skin tests to determine specific allergies.
Ÿ	Ms Metcalfe will attend an Independent Medical Assessment with Dr Stevenson on 7 April 2011.
Ÿ	Ms Gava, Mr Headland, Ms Metcalfe and Ms Pertini to meet at the Prospect site on Friday 18th March at 3.30pm to update the return to work plan.
Ÿ	Return to work strategies to be reviewed when further medical evidence has been obtained.

75		An offer for Ms Metcalfe to return to work at the Magill facility was discussed, but she was not prepared to take up that option.  She considered that working at the Magill facility would effectively be a demotion.
76		A case conference held on 29 June 2011 was attended by Ms Metcalfe, Dr Ridings, Mr Headland, Ms Pertini, Mr Allauch, Ms Carlina Ritchie (case manager), and Ms Jo Hincks (workplace rehabilitation consultant).  By this time, CCH had received the medical reports referred to above (at [72]), and a medical certificate dated 29 June 2011 certifying that Ms Metcalfe was fit to work at the Prospect facility on the condition that the cat be totally absent during her shifts, and the completion of an agreed cleaning program.
77		Mr Case’s initial attitude was that Ms Metcalfe should not return to the Prospect facility until he could be satisfied that it was safe for her to do so.  In the meantime, she could be offered similar shifts and hours at the Magill facility.  As a result of reading Dr Smith’s reports about the risks of exposure to cat dander and what he (Mr Case) considered to be the impracticality of removing the cat during Ms Metcalfe’s shifts, he formed the view that Ms Metcalfe could not be allowed to work at the Prospect facility.
78		Mr Headland had written to Mr Case on 30 May 2011 referring to the difficulty in cleaning the Prospect facility, and the fact that CCH did not want to remove the cat from the Prospect facility.  Mr Headland said that a transfer to the Magill facility should be considered as the return to work option.  He said that, on previous indications, Ms Metcalfe may reject the option and he went on to say:
This would then result in non compliance by her in which case EML would suspend payments.

79		At the case conference on 29 June 2011, Ms Metcalfe and Ms Pertini, on her behalf, indicated that she wanted to return to work at the Prospect facility, and that she was not interested in working at the Magill facility.  They indicated CCH should remove the cat from the Prospect facility “in accordance with her medical restrictions”.  Mr Headland indicated that, having regard to Dr Smith’s report, CCH was not confident that even with the removal of the cat during Ms Metcalfe’s shifts, and a rigorous cleaning program, it could ensure “that the allergens will be controlled adequately to prevent Ms Metcalfe’s experiencing further reaction”.  The further action contemplated at the conclusion of the meeting was identified in the record of the meeting as follows:
Ÿ	Dr. A. Ridings GP to provide Ms. Metcalfe with an updated WorkCover Medical Certificate.

Ÿ	Rehabilitation Consultant requested that Ms Metcalfe consider the ‘draft’ Rehabilitation and Return to Work Plan # 3 as provided.  Ms. Metcalfe was advised that if she has feedback feedback / comments and proposed changes that she detail these on the Plan and provide to the Rehabilitation Consultant as agreed by Monday 04/07/2011.

Ÿ	Clayton Chruch [sic] Homes Inc to consider the opportunity for the resident cat to be absent from the work place during the shifts that Ms Metcalfe would be rostered to work as part of the proposed Return to Work (detailed above), and to remain outside of the nurses’ station and off the drug trolley at all times.

Ÿ	Clayton Church Homes – with assistance of the Rehabilitation Consultant – to explore and identify a reasonable cleaning program that might be implemented in the workplace to minimise cat allergens.

Ÿ	Rehabilitation Consultant to contact all parties to coordinate an appropriate meeting to discuss / outline the opportunities for commencement of a trial of Return to Work.

80		On 15 August 2011, Mr Case, Mr Headland and Mr John Love (a solicitor from EMA Legal) met with Mr Joshua Newberry (EML Project Specialist from the Return to Work Team), and other EML representatives.  The purpose of the meeting was for CCH to seek clarification as to whether CCH’s offer of work at its Magill facility met CCH’s obligations to provide Ms Metcalfe with suitable employment under s 58B of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRAC Act”).  Mr Newberry advised that CCH’s offer of work at its Magill facility involving a night shift for a registered nurse on similar hours and days to her work at the Prospect facility, met CCH’s obligations under s 58B of the WRAC Act.
81		By letter dated 19 August 2011, Mr Headland wrote to Ms Metcalfe offering her employment at CCH’s Magill facility.  Ms Metcalfe responded by saying that Mr Headland’s letter would be referred to legal counsel.  
82		By letter dated 8 September 2011, Ms Metcalfe’s then solicitors wrote to EML on her behalf and they referred to ss 26 and 58B of the WRAC Act and stated that Ms Metcalfe wished to return to her previous employment at her previous workplace (i.e., at the Prospect facility).
83		EML sent CCH a copy of a medical report of Dr Ridings dated 31 August 2011.
84		A case conference was held on 15 September 2011.  CCH was unable to send a representative, but was advised of the outcome of the meeting by EML on 22 September 2011.  At about this time, Ms Metcalfe had been allowed to change rehabilitation consultants.
85		A case conference attended by Ms Metcalfe, Ms Evans, Dr Ridings, Mr Case, Mr Headland, Mr Allauch, Mr Michael Pirone (rehabilitation consultant), Ms Tania Sutherland (EML) and Mr Chris Carter (EML) was held on 5 October 2011.  The actions to be taken after that meeting were identified in the record of the meeting as follows:
Worker
Ÿ	Ms Metcalfe to attend Dr Ridings rooms to obtain medical certificate with permanent restrictions.

Ÿ	Upon offer of employment as agreed, Ms Metcalfe to attend at Prospect site for two supernumary [sic] shifts.

Employer
Ÿ	Provide suitable employment (as supernumary) [sic] for two shifts initially – should there prove to be no issues, ongoing suitable employment to be provided for Ms Metcalfe within the permanent restrictions.

Ÿ	Ms Metcalfe’s workstation to be kept clean and free of cat dander and this to be ensured prior to her beginning her shift.

Ÿ	Cat to be kept away from Ms Metcalfe’s work area whilst she is on shift.

Case Manager
Ÿ	Support two supernumary [sic] shifts beginning the 12th October 2011.

Doctor
Ÿ	Provide WMC with permanent restrictions once Ms Metcalfe attends his rooms.

Workplace Rehabilitation Consultant
Ÿ	Assist with the facilitation of suitable employment offer at Prospect from CCH.

86		On 13 October 2011, Dr Ridings wrote a letter to EML stating, among other things, that the requirement that the cat be excluded from Ms Metcalfe’s sphere of influence at work would be satisfied by the cat being confined in any area behind a closed door out of her sphere of activity.
87		On 18 October 2011, Dr Ridings wrote a letter to EML in the following terms:
Further to our phone conversation this morning I confirm that, as we agreed at the last Case Conference, Bernadette can now return to work with the agreed conditions:

1.	That the resident cat be excluded from the work station where Bernadette is working and while she is at work and

2.	That the resident cat be confined behind a closed door while she is at work.  The exact area where the cat is confined will not change matters as long as it is away from Bernadette’s work station.

88		At the time Ms Metcalfe returned to work on 19 October 2011, a notice was placed on the door from the corridor into the nurses’ station where she undertook her duties.  The notice was in the following terms:
NOTICE TO STAFF

Please note that for Health and Safety reasons relating to allergies the site cat is not permitted into the Nurses Station at any time of the day.  To achieve this the door of the Nurses Station is to be closed at all times.  Should the cat wander into the Nurses Station while the door is open it is to be removed.  

Thank you for your assistance.

The notice stated that it was issued by Mr Headland on 19 October 2011.  
89		The notice was removed from the door after a few days and replaced with a second notice with which Ms Metcalfe was unhappy.  
90		Ms Metcalfe alleges that the acts of adverse action by the respondents against her began in October 2011.
91		On 27 October 2011, Mr Headland wrote to Ms Metcalfe in the following terms:
Dear Bernadette

RE:  Working hours

It has been reported that you finished work and left the Prospect site at 6:50am this morning. This was following the handover to the morning shift staff. You did not inform the Site Coordinator who was present at handover that you had reason to finish work early.

You are reminded that the night shift hours are 10.45pm until 7.00am.  Please ensure that your time sheet records the time that you finished today as 6.50am and that in future you work until the shift finish time.

If there are reasons why you are unable to complete the shift you are to inform the Site Coordinator. Failure to follow this instruction may result in disciplinary action.

92		In response to this letter, Ms Metcalfe wrote to Mr Headland asking for a copy of the report upon which he decided to prepare and forward his letter to her.  She received a response from Mr Headland on 1 November 2011, wherein he confirmed the night shift hours at the Prospect facility.  Neither Ms Metcalfe nor CCH took this matter any further.  In her affidavit in this proceeding, Ms Metcalfe denied the allegation that she had finished work early, and she said that she was assisting a resident in a back room.  
93		As I have previously said, in late 2011, a dispute arose between Ms Metcalfe and CCH about her pay rates.  What turned out to be one aspect of this dispute was an assertion by CCH that Ms Metcalfe had been overpaid a certain amount which it was entitled to recover, if necessary, by regular deductions from her salary.  That matter is addressed in detail below (at [135]-[142]).
94		On 14 December 2011, WorkCover SA prepared a closure report in respect of CCH’s obligations under s 58B of the WRAC Act.  Ms Metcalfe had contacted WorkCover SA on 28 November 2011 complaining that CCH had refused to remove the cat or properly clean after it.  The author of the report noted that CCH had been clear in its view that it would not remove the cat from the Prospect facility.  He considered that, by offering Ms Metcalfe employment at the Magill facility, CCH had met its obligations under s 58B of the WRAC Act.  However, there were health, safety and welfare issues in respect of the worker, and the matter was referred back to EML for it to address those issues.
95		On 27 January 2012, Ms Gibney wrote to Ms Metcalfe identifying Ms Metcalfe’s lack of knowledge in relation to the forms to be used for the transfer of a resident to hospital and certain failings on her part in connection with the ordering of medication.  Ms Metcalfe denied the allegations and sent Ms Gibney a lengthy response on 31 January 2012.  Neither Ms Metcalfe nor CCH took this matter any further.
96		Ms Metcalfe’s symptoms did not abate and she was off work from 8 May to 30 May 2012.  She submitted a further claim for workers compensation.  
97		The issue about pay rates generated a good deal of correspondence, and it included the involvement of the ANMF and the FWO.  On 23 July 2012, the FWO advised CCH that, as far as the Ombudsman was concerned, he had investigated the complaint and he rejected it.
98		In September 2012, Ms Metcalfe developed cataracts in both her eyes.  She consulted Dr G J Davis on 20 September 2012, and he arranged for her to undergo day surgery on 3 October 2012.  Dr Davis completed a form headed “Prescribed Medical Certificate” on 20 September 2012.  He referred to the cause of Ms Metcalfe’s disability in the following terms:
Cataracts.  Due to inhaled steroids used to treat allergic reaction to cat in workplace.

99		He ticked the box for “unfit for work” but did not specify the period from which and to which Ms Metcalfe was unfit for work.  In relation to “other comments”, he referred to Ms Metcalfe undergoing “rights cataract” on 3 October 2012.  
100		There then followed a dispute between Ms Metcalfe and CCH about the effect of Dr Davis’ medical certificate, and, in particular, whether it meant that Ms Metcalfe was presently unfit for work, or would only be unfit for work on 3 October 2012.  Mr Mike Newman and Mr Case were involved in conversations with Ms Metcalfe at that time.  The upshot of those conversations was that Ms Metcalfe was asked not to attend work on 28, 29 and 30 September 2012, and she was paid sick leave for those shifts.  She wanted to work and, in the events that happened, she wanted full pay and penalties and entitlements for the three days she was told not to work.  CCH’s position was that, on the days indicated, Ms Metcalfe had provided a prescribed medical certificate stating that she was unfit for duty, and as a result, she was paid sick leave for this period.  There was correspondence and a further note from Dr Davis, but neither side would move from its original position.  
101		Resident A was a 92 year old woman who was a long term resident at the Prospect facility.  She was prescribed a number of drugs, including oxazepam.  The regular order for Resident A was for a 7.5 mg dose of oxazepam to be administered in the morning, and the chart specified an administration time of 8.00 am.
102		Resident A’s Long Term Medication Management Chart indicates that she was given her regular dose at 8.00 am on 27 October 2012, and again at that time on 28 October 2012.  Ms Metcalfe gave her a dose of 7.5 mg of oxazepam at 2.00 am on 28 October 2012.  This was recorded by Ms Metcalfe as a statim dose, or “Once Only (stat) Medication”.  She also completed and attached as a sticker to the progress notes for Resident A, a PRN Progress Note which recorded the administration of the dose at 2.00 am, and gave the reason for the administration as the fact that Resident A had not settled, was agitated, and was smearing faeces, and the effect as no effect, calling out for teacher and eventually settled at 4.00 am.
103		Curiously, the progress notes for Resident A for the morning of 28 October 2012, suggest that she could not be roused.  On the face of it, that is difficult to reconcile with the administration of a dose of oxazepam at 8.00 am that morning.
104		Resident A’s doctor at that time was Dr X.  He had rooms nearby and he had a doctor and patient relationship with a number of residents in the facility.
105		Ms Metcalfe completed a request for Dr X on 28 October 2012 which read:
①	Stat. Med. For Signing Pls.

②	? PRN Med. For Restlessness Nocte

106		Dr X’s response to the first request as noted in the Medical Record was as follows:
30.10.10	[sic., 2012] I note Mrs [C] had a stat. dose (nurse initiated) of oxazepam 7.5mg 28/10/12 @ 0200 ? reason as this is not ordered by a doctor it should not be nurse initiated

107		As to the second request, Dr X did authorise 7.5 mg oxazepam as PRN Medication, “daily prn” on 30 October 2012.
108		Ms Gibney completed a “Medication/Pharmacy Incident Report” in relation to Ms Metcalfe’s administration of oxazepam and reported the incident to Ms Case.  In Ms Gibney’s report, she referred to Ms Metcalfe giving a stat dose of oxazepam to Resident A in circumstances where the medication was not approved by a general practitioner.  She referred to the fact that she had written it on the “stat. dose” page, and that the incident had been reported to Dr X.  She noted that Dr X had written in the medical notes.
109		Resident B was a 93 year old woman who was transferred from the RAH to the Prospect facility at about 9.30 am on 8 November 2012.  Resident B suffered from a number of serious medical conditions.  At the RAH, Resident B had been prescribed a 30 mg dose of oxazepam every night.  The time for the administration of the dose fixed administratively was 8.00 pm.
110		The respondents’ case is that Ms Rose administered a 30 mg dose of oxazepam at about 8.00 pm on 8 November 2012 from a Webster pack ordered by the RAH and sent to the Prospect facility.  Ms Rose completed a medication chart of the RAH, rather than a medication chart of CCH, because, at that time, CCH’s medication charts were not in existence.  CCH’s medication chart was faxed to the chemist by Ms Rose at about 8.00 pm.  It was at about that time that the locum attended the facility.
111		Ms Metcalfe’s case is that there was no Webster pack of medication at about midnight on 8 November 2012, and that the RAH chart was blank.
112		At all events, Ms Metcalfe gave Resident B a 30 mg dose of oxazepam on 9 November 2012 at about 12.20 am.  As with Resident A, Ms Metcalfe recorded the dose as a stat dose, and she completed a PRN Progress Note explaining the reason for the administration as agitation, insomnia and pain.  She also completed a request for Dr X to authorise (“sign for”) the stat dose.  He did not do so.  
113		On 9 November 2012, Mr Case wrote to Ms Metcalfe in the following terms:
Dear Bernadette,

RE:  Administration of Nurse Initiated Medication

Two serious incidents of alleged administration of nurse initiated medication without doctors orders have been brought to my attention, both involving yourself.

I have listed both alleged incidents below.

1)	On the 28 October 2012 you administered oxazepam to a resident as a PRN without a Doctor’s order.
The Doctor wrote in the medical record on 30th October 2012
“I note ........... had a stat dose (nurse initiated) of oxazepam 7.5mg 28/10/12 @ 0200 ? reason.  As this is not ordered by a doctor it should not be nurse initiated.”

2)	On the 9th November 2012, you again administered oxazepam PRN, to a different resident without a doctor’s order.  Administration was at 0025.

The allegations, if substantiated are contrary to Clayton Church Homes Medication Management Procedure C 006.1 and could also be in breach of AHPRA regulations and have the potential to cause serious harm to our residents.

Given the serious nature of these alleged incidents and our need to full investigate, I have decided on the following actions;

a)	You are suspended immediately on full pay whilst an investigation into these alleged incidents is conducted.

b)	The allegations will be put to you for your response at a meeting to be held on Wednesday, 14th November 2012, in Administration commencing at 1.00pm.

c)	Present at this meeting will be Manager Residential Facilities and Manager Human Resources.

d)	I advise that you may bring a support person to the meeting.

e)	Please advise me directly, by 5.00pm Tuesday 13th November 2012 of your availability to attend and if you will be bringing a support person.

These allegations are serious in nature and you are instructed to not contact the site or staff to discuss any matters relating to these incidents.

The matters are to be treated with confidentiality and any breach could result in disciplinary action.

I also advise that these alleged incidents are serious and could result in disciplinary action up to and including dismissal.

114		On 12 November 2012, Mr Case called an extraordinary meeting of CCH’s Medication Advisory Committee (“MAC”) “to discuss and seek guidance regarding the allegations involving the applicant”.  Those present at the meeting were Mr Case, Mr Newman, and two pharmacists from Chemplus, Mr Nick Tsamaidis (also the chief executive officer), and Mr Alan Raggatt.  Mr Case described the purpose of the meeting of the MAC as being to provide a formal structure for communication and advice about medication between CCH and the pharmacists who supply CCH’s medication.
115		Mr Case chaired the meeting and explained the allegations to those present.  Supporting documentation consisting of photocopies of the Webster packs, residents’ drug charts, nurses’ notes and medical officer annotations were tabled at the meeting.  Mr Case said that the MAC confirmed that CCH had acted in the interests of residents, and that it was unlawful for medication to be administered without authorisation.
116		The meeting planned for 14 November 2012 took place at the Prospect facility.  The meeting was attended by Ms Metcalfe, Ms Evans, Mr Devine, Ms Case, and Mr Newman.  Mr Case did not attend the meeting.  As far as Resident A was concerned, Ms Metcalfe relied on the regular order issued by the doctor.  As far as Resident B was concerned, she relied on the regular order issued by the doctor, and said that the medication charts were blank when she saw them.  She could not remember where she obtained the medication she gave to Resident B, and she said she might have borrowed it.
117		On 14 November 2012, Mr Newman wrote to Ms Metcalfe in the following terms:
Dear Bernadette,

RE: Administration of Nurse Initiated Medication

Further to our meeting today, I have conducted additional investigations into the matters raised by your responses.

I now seek your response, in writing by 4.00pm Friday 16th November 2012 to the following;
1.	During the meeting you indicated that

A)	There was a doctor’s order for the administration of oxazepam for you to nurse initiate a Stat dose in both incidents.
B)	That the doctor’s entry in the Medical Notes of 30 October 2012 was incorrect.

Further investigation has revealed the following two entries completed by you in the doctor’s book that directly relate to the incidents being investigated;

i)	28.10.2012	1)	Stat med for signing Pls.
2)	?PRN Med for restlessness Nocte

ii)	9.11.2012	Please sign for Stat dose oxazepam
Please write PRN orders as appropriate

Both entries are after the administration of the medication.

The entries indicate that, despite your responses to us that on both occasions you were permitted to administer the dose- that in fact you noted that you did not have permission and sought approval from the doctor after the event.

Can you provide any further explanation of your note and whether this affects the response that you provided to us this afternoon?

2.	We have also contacted the doctor concerned regarding your statement that the entry in the Medical Notes of 30 October 2012 was incorrect.

The doctor has confirmed in our telephone conversation that the entry is correct.

This means that you did not have permission from the doctor to administer the medication, please advice [sic] whether this affects the response that you provided this afternoon or whether there is any further explanation you wish to offer?

Your response in writing will assist in finalising of the matter.  Should you fail to provide any response by that time we will proceed to determine the matter on the basis of the material before us.

118		On the same day, Ms Metcalfe wrote to Dr X in the following terms:
Dear Dr [X],

Today I was shown by the management of CCH your written record in a resident’s notes that had an unsubstantiated determination made by you that I had given a stat dose (nurse initiated) of a drug without giving reason and stating that the drug was not ordered by a doctor.

A review of the resident’s notes clearly demonstrated that your determination was incorrect.

The management have formally advised me that your unsubstantiated determination could be in breach of AHPRA regulations and therefore have called into question my good professional standing as a triple certificated Registered Nurse with a formal threat of dismissal.

All of these actions were based solely on your actions.

Your statement is false and defamatory.

I consider that it may be libelous [sic].

Accordingly you are requested to
Ÿ	formally withdraw your determination and signed documented statement to correct the resident’s record to reflect the facts that I administered a stat dose against a written doctor’s order for the drug
Ÿ	forward correspondence to me confirming that you have incorrectly made the original entry in the resident’s notes and to provide me with this letter by return post.  I intend to provide this letter to the management of CCH
Ÿ	any other action that you consider to be appropriate to repair my professional reputation.

119		There then followed correspondence from Ms Evans to Mr Newman dated 16 November 2012, from Mr Case to Ms Evans dated 22 November 2012, and from Ms Evans to Mr Case dated 29 November 2012.  Each party maintained their position about the alleged administration of oxazepam without authorisation.  Ms Metcalfe maintained that she had administered the drugs against a doctor’s order, and that one of the medication charts had been “backfilled”.  Mr Case maintained the position that there was no doctor’s order for the administration of the drugs.  He also raised concerns about Ms Metcalfe’s letter to Dr X on the grounds of a breach of confidentiality, and the nature of the allegations made against Dr X.  Ms Metcalfe denied that there had been any breach of confidentiality.
120		By letter dated 29 November 2012, Mr Case wrote to Ms Metcalfe stating that he had become aware of errors in Ms Metcalfe’s wages payments for the pay periods ending 13 November 2012 and 27 November 2012.  The total adjustment to her pay was $301.40, and Mr Case advised her that the adjustments were being made that day with the funds transferred to her bank account also on that day.  
121		On 3 December 2012, Mr Case wrote to Ms Evans in the following terms:
Dear Ms Evans,

Bernadette Metcalfe
Termination of Employment

Thank you for your letter dated 29 November 2012 on behalf of Ms Metcalfe.

We note that you have repeated the assertion made at the meeting held on 14 November 2012, that Ms Metcalfe administered a stat dose against the medication order that was prescribed by the doctor.

As we have advised on numerous occasions, there was no doctor’s order in place to administer a stat dose.  The only doctor’s order in place authorised the administration of a regular dose.  Therefore, the only basis on which Ms Metcalfe could have been authorised to administer a stat dose was if there had been approval or authorisation from the doctor.  The relevant doctor has confirmed that no approval or authorisation was in place for the state dose Ms Metcalfe administered.

Ms Metcalfe has also failed to provide any explanation of, despite or request that she do so, the letter sent to Dr [X], other than a reference to ‘Australian Law’ permitting such correspondence.

Your member has been suspended from work on full pay since 9 November 2012 and has been provided with numerous opportunities to explain her conduct in administering the stat dose on the days in question.  No explanation or credible reason has been provided to justify her conduct.  In addition, Ms Metcalfe’s responses throughout this investigation demonstrates that she does not appreciate the potential serious ramifications of her conduct.

In these circumstances, we have determined that the allegations in relation to Ms Metcalfe’s unauthorised administration of a stat dose to residents on 28 October and 9 November 2012 have been substantiated.  We have also determined that our concerns in relation to the letter to Dr [X] have been substantiated.

Ms Metcalfe’s conduct in relation to both allegations individually and collectively amounts to serious and wilful misconduct and justifies the termination of her employment without notice.  In the absence of any further information from you or Ms Metcalfe by close of business Monday 3 December 2012 regarding the allegations, Ms Metcalfe’s employment will terminate without notice for serious and wilful misconduct at that time.

122		On 4 December 2012, Mr Case wrote to Ms Metcalfe in the following terms:
Dear Bernadette,

Termination of Employment

On 9 November 2012, you were suspended from work on full pay while we undertook an investigation into allegations that you had administered medication to two residents without authorisation.

Background

Formal allegations were provided to you for your response on 9 November 2012.  You attended a meeting on 14 November 2012 for this purpose.  In short, you maintained that you had not administered any medication unauthorised and claimed that the stat dose that you administered was authorised by the doctor.  The relevant doctor advised Clayton Church Homes that he had not authorised the medication that you administered.

You maintained this position regarding the administration of the stat dose in the numerous letters that followed between Clayton Church Homes and your representative, the ANMF.

During the investigation Clayton Church Homes were provided with a copy of the letter that you sent Dr [X] after our meeting on 14 November.  Clayton Church Homes held serious concerns with the contents and tone of this letter and invited you to provide a response to those concerns by letter dated 22 November.  Despite Clayton Church Homes providing you with this opportunity, you did not provide us with any explanation to our concerns, other than justifying your right to send the letter by reference to ‘Australian Law’.

Clayton Church Homes then provided you with a final opportunity to provide any further information by letter dated 3 December.  We did not receive any further response from you.

Decision

In these circumstances, we have determined that the allegations in relation to your unauthorised administration of a stat dose to residents on 28 October 2012 and 9 November are substantiated.  We have also determined that our concerns in relation to the letter to Dr [X] have been substantiated.

Your conduct in relation to both allegations individually and collectively amounts to serious and wilful misconduct and justifies the termination of your employment without notice.  We have decided to terminate your employment on this basis.

This letter is formal advice that your employment has been terminated without notice for serious and wilful misconduct effective close of business Monday 3 December 2012.  You will be paid any outstanding entitlements within 7 days.

You are also required to return any property belonging to Clayton Church Homes to me by Friday 7th December 2012.  I am of the understanding that you have keys to the facility and these must be returned.

123		On 13 December 2012, Mr Case lodged a complaint about Ms Metcalfe’s behaviour with the Australian Health Practitioner Regulation Authority (“AHPRA”).  After setting out his understanding of what had occurred, Mr Case wrote in the complaint form:
My concern is the administration of s4/s8 drug without doctors approval to 2 of our elderly residents.  This is against our Medication Management Procedure plus I believe nurses codes of practice, guidelines for medication management.

124		On 27 June 2013, AHPRA advised Mr Case of the outcome of its investigation in the following terms:
Dear Mr Case

Action taken in relation to Ms Bernadette Metcalfe after investigation

I refer to the letter advising you of the investigation about Ms Bernadette Metcalfe.

On 21 June 2013, the Nursing and Midwifery Board of Australia (the Board) decided that the way Ms Metcalfe practices is or may be unsatisfactory and took relevant action under section 178 of the Health Practitioner Regulation National Law (the National Law).

The Board cautioned Ms Metcalfe and accepted an undertaking from her for the following reasons:

Ÿ	Ms Metcalfe has, on two occasions, administered medication at a time contrary to that ordered.
Ÿ	There was no PRN (as needed) order for either of these medications
Ÿ	Ms Metcalfe did not obtain a medical officer’s authority to administer these medications.

A caution is intended to act as a deterrent so that the practitioner does not repeat the conduct. A caution is not usually recorded on the public national register.

…
125		Ms Metcalfe said in the course of cross-examination that, as matters developed, she was never cautioned by the Board.
126		This concludes my statement of the main events between the first exercise of workplace rights by Ms Metcalfe and the termination of her employment, and CCH’s subsequent complaint to AHPRA.  It is necessary now to address each alleged act of adverse action.  Before doing that, I should state the approach I take to the evidence of how the respondents dealt with Ms Metcalfe’s workers compensation claim.  As I have previously said, Ms Metcalfe sought to characterise the respondents’ conduct in various ways, including that it was “harsh”, or “negative” towards her.  Other descriptions might be suggested such as antagonistic or hostile.  The matter is not resolved simply by characterising the respondents’ conduct in one way or another.  The respondents’ conduct in dealing with Ms Metcalfe’s workers compensation claim is a matter to be considered, however it is characterised.
127		Having said that, I make the following observations about that conduct.  First, Mr Headland’s comment in the employer report form querying the validity of Ms Metcalfe’s claim is explained by the reasons he gave.  Secondly, I think it is evident from the protracted discussions concerning Ms Metcalfe’s return to work that Ms Metcalfe wanted to return to a safe place of work and, for its part, CCH wanted to retain the cat at the Prospect facility and wanted some clear direction as to precisely what measures it was required to undertake in order to render the workplace at the Prospect facility safe for Ms Metcalfe.  The problem was not an easy one to resolve and there appears to have been an element of frustration on both sides.  Thirdly, I do not think Mr Headland’s email to Mr Case dated 30 May 2011 has the significance Ms Metcalfe sought to attach to it.  I accept Mr Headland’s explanation that he was giving Mr Case an update of the current position, and listing options as to what might happen.  Fourthly, with respect to the discussions and negotiations concerning Ms Metcalfe’s return to work, there was debate before me as to whether, by offering Ms Metcalfe employment at its Magill facility, CCH complied with its obligation under the WRAC Act.  CCH adduced evidence that it had complied with its obligations under s 58B of the WRAC Act, and that evidence was the advice from EML and the WorkCover SA closure report.  Ms Metcalfe sought to counter this by submitting that employment at the Magill facility was not in accordance with WorkCover SA’s return to work plan, and she referred to ss 26 and 28A of the WRAC Act.  She submitted that there was evidence from Mr Newman that she had returned to work at the Prospect facility under a return to work plan.  I do not think I can resolve the issue of when the return to work plan provided that the Prospect facility was the specified place.  Mr Newman did not commence employment at CCH until February 2012, and I note that the written record of the case conference held on 29 June 2011 states that Ms Metcalfe complained about the fact that the draft return to work plan did not specify the Prospect facility as the return to work location.  In any event, I do not think that I need to resolve the issue because there is no evidence that CCH and, in particular, Mr Case knew or suspected that the offer of work at the Magill facility was not in accordance with CCH’s obligations under the WRAC Act.  An allegation in those terms was not put to Mr Case in cross-examination.
128		I would not describe the respondents’ approach to Ms Metcalfe’s workers compensation claim as harsh or negative.  There was an element of frustration and something of a formal approach adopted.  The fact that I do not accept the submission that the respondents’ conduct was harsh or negative does not mean that the conduct becomes irrelevant when considering the reasons of the respondents for the alleged adverse action.  It must be considered together with other relevant matters.
THE ALLEGED ACTS OF ADVERSE ACTION
129		The first alleged act of adverse action is described in the pleading as criticism and instruction about the completion by Ms Metcalfe of timesheets recording her hours of work.  This seems to be a reference to the allegation that Ms Metcalfe left work 10 minutes early on 27 October 2011, and the correspondence which followed.  This allegation is part of a more general allegation that the respondents routinely targeted Ms Metcalfe for complaint and admonishment.
130		Ms Metcalfe’s submissions about what constitutes adverse action for the purposes of s 342 of the Act were directed to those categories of adverse action taken by an employer against an employee where the employer injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice.  In Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at 18, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred to the equivalent provisions in the then Workplace Relations Act 1996 (Cth) as, in the case of the injury provision, covering injury of any compensable kind and, in the case of a prejudicial alteration of position, as a broad additional category which covers not only legal injury, but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
131		Ms Metcalfe did not suffer any compensable injury as a result of either the letter from Mr Headland dated 27 October 2011, or the letter from Mr Headland dated 1 November 2011.  The injury provision in the definition of adverse action was not engaged.  Nor can it be said that there was any adverse affection of, or deterioration in, the advantages she enjoyed before she received the letter dated 27 October 2011.  Neither party took the matter any further after Mr Headland’s letter dated 1 November 2011.
132		Independently of the above conclusion that the conduct relating to Mr Headland’s letter dated 27 October 2011 did not amount to adverse action, I am satisfied that neither Ms Gibney in making her report to Mr Headland, nor Mr Headland in writing the two letters, did so for the reason that Ms Metcalfe had exercised workplace rights.  I should record the fact that Ms Metcalfe does not plead in her statement of claim that CCH took adverse action against her other than through the decisions and actions of Mr Case and Ms Case.  In other words, she does not plead that it took adverse action through the decisions and action of either Ms Gibney or Mr Headland.  That is an end of the matter in the absence of an amendment.  Nevertheless, I will consider the question of the reason for the action for the sake of completeness.
133		Ms Gibney said that on 27 October 2011, she was sitting at the desk in the nurses’ station at about 6.50 am.  She saw Ms Metcalfe pick up her bag and jacket after handover was completed and then exit the building at 6.50 am.  Ms Metcalfe’s shift finished at 7.00 am.  Ms Gibney contacted Mr Headland by telephone and advised him of Ms Metcalfe’s early departure.  Ms Gibney said that her decision to report the matter was not influenced in any way by “the fact that the applicant had suffered a work-related injury; lodged a claim for workers’ compensation; exercised her rights under the Workers Rehabilitation Act 1986 (SA); the SafeWork SA complaint or the FWO [Fair Work Ombudsman] complaint”.  I accept that evidence.  It was put to Ms Gibney that what she saw Ms Metcalfe doing was really a staffing issue that she would ordinarily deal with herself without involving Mr Headland.  Having heard Ms Gibney being cross-examined, I do not think that she gave the matter a great deal of thought.  I accept her evidence that whether there was a report to her superiors about an employee arriving late or leaving early depended on the circumstances, and a significant matter in Ms Metcalfe’s case was that she was a senior staff member whose conduct in leaving early could be an example to others.  I also accept Ms Gibney’s evidence that she was busy at the time and that reporting the matter to Mr Headland was, in a sense, the easiest and most efficient thing for her to do, rather than trying to remember to mention it to Ms Metcalfe, possibly some days later.
134		Mr Headland said that he did not intend to take disciplinary action in relation to the incident.  He did mention it to Mr Case who agreed with the course of action he proposed to take.  His intention in writing to Ms Metcalfe was to remind her that she had to work to the end of her shift.  Ms Metcalfe’s explanation in her affidavit that she did not leave early and was, in fact, in a back room assisting with a resident, was not provided to him before she swore her affidavit in this proceeding.  Mr Headland said that, in writing his two letters to Ms Metcalfe, he was not motivated by the fact that Ms Metcalfe had exercised certain workplace rights.  I have taken into account Ms Metcalfe’s submission that she was a reliable employee of 20 years standing, and that the incident was trivial and did not call for such a formal and harsh response.  Nevertheless, I accept Mr Headland’s evidence. 
135		The second alleged act of adverse action is described in the pleading as the deduction without authority from Ms Metcalfe’s wages of amounts asserted by CCH to have been overpaid to Ms Metcalfe as a consequence of her workers compensation claim.
136		Ms Metcalfe did not say a great deal about this allegation in her closing submissions (oral or written), and it is difficult to know whether it is still being pursued.  In any event, I will deal with it.
137		The evidence Ms Metcalfe adduced was meagre and unsatisfactory.  In her affidavit she said:
80.	By that time [the preceding paragraph refers to events in September 2012] CCH and EML had apparently identified an overpayment of compensation and/or wages.  This was never satisfactorily explained.  Deductions of $52.00 per pay period were being made from my pay.  I never authorised such deductions.

138		This evidence is unsatisfactory because Ms Metcalfe made no attempt to inform the Court in her evidence-in-chief that the question of overpayment and recovery by way of deductions from her wages had a long history beginning in December 2011.
139		Ms Dilena, on behalf of CCH, wrote to Ms Metcalfe on 5 December 2011 advising her that she had been overpaid two amounts, one amount in June 2011, and another amount in October 2011.  She explained how the overpayments had occurred, provided supporting documentation, and apologised for the errors.  She advised Ms Metcalfe that CCH sought recovery of the amounts and advised her that recovery could be made under the Clayton Church Homes Inc Nursing Employees (Aged Care) Workplace Agreement 2009.  She asked Ms Metcalfe how she would like to repay the amount (i.e., by one instalment or a number of instalments) and she enclosed a payroll deduction authority for Ms Metcalfe to complete and sign.  Ms Metcalfe responded to Ms Dilena’s letter by seeking further information and Ms Dilena, in turn, provided further information to Ms Metcalfe.
140		There then followed considerable correspondence between Mr Case, on behalf of CCH, and Ms Metcalfe.  That occurred during the first three months of 2012.  I do not need to set out the details.  CCH maintained its position that Ms Metcalfe had been overpaid.  Ms Metcalfe claimed that she had been underpaid, not overpaid, and she did not sign the payroll deduction authority.  On 26 June 2012, CCH started to deduct the amount of $52.18 per fortnight from Ms Metcalfe’s pay purportedly pursuant to clause 5.11.1 of the Clayton Church Homes Inc Nursing Employees and ANF Enterprise Agreement 2012.
141		Ms Metcalfe lodged a complaint with the FWO on 2 May 2012 (s 682 of the Act) about a number of matters concerning her classification and pay, including the proposal by CCH to deduct the overpayments from her wages.  Those matters were investigated by the FWO and Ms Metcalfe’s complaint was dismissed.  CCH was advised of the outcome by a letter from the FWO dated 23 July 2012.  The FWO found that, by reason of clause 5.11.1 of the Enterprise Agreement 2012, CCH was authorised to deduct overpayments from Ms Metcalfe’s wages.
142		Ms Metcalfe has not established that she was not overpaid in the manner alleged by CCH.  On the evidence before me, I find that she was overpaid.  Further, I find that, by reason of clause 5.11.1 of the Enterprise Agreement 2012, CCH were entitled to deduct the overpayments from her pay.  There is, therefore, no adverse action.  In addition, the respondents have established that their conduct in pursuing the recovery of the overpayment had nothing to do with Ms Metcalfe’s exercise of workplace rights.  Ms Metcalfe had been overpaid, and CCH sought to recover the overpayment in a manner contemplated by a relevant enterprise agreement.
143		The third alleged act of adverse action is described as the making of unsubstantiated allegations concerning Ms Metcalfe’s nursing practice in a letter dated 27 January 2012.  That letter is referred to above (at [95]).  In summary, the letter advises Ms Metcalfe about the correct procedure to be followed in transferring patients to hospital and, in particular, as to the correct forms to be used, and refers to the fact that Ms Metcalfe had not followed the correct procedure in relation to the ordering of medication in circumstances where a locum visits residents late at night with the result that medication is not ordered until the following afternoon.
144		Ms Metcalfe said in her affidavit that she considered these allegations to be unjustified.  Her counsel said nothing about this conduct in her closing submissions, and it is not clear whether the allegation is being pursued.  Nevertheless, I will address it.
145		Mr Case had no involvement in the decision to send the letter.  Ms Case only became involved when Ms Metcalfe responded to Ms Gibney’s letter by letter dated 31 January 2012.  She and Ms Gibney decided that the matter should not be taken any further.
146		As I have previously said, Ms Gibney is not identified in Ms Metcalfe’s pleading as one of the persons who took adverse action for or on behalf of CCH.
147		For the same reasons as I have given in relation to Mr Headland’s letter dated 27 October 2011, I do not think Ms Gibney’s letter of 27 January 2012 constituted adverse action within the meaning of that term in s 342 of the Act.  In any event, I am satisfied that Ms Gibney did not write the letter for a proscribed reason.
148		Ms Gibney said that she wrote the letter to Ms Metcalfe because, on 27 January 2012, she had received a report as to the two incidents dated 25 January 2012 from Ms Jan Bermingham.  Ms Bermingham is a registered nurse who also worked at the Prospect facility.  Those reports were annexed to Ms Gibney’s affidavit.  She was not shaken in cross‑examination which was largely directed to the first of the two matters.  In any event, I accept her evidence.
149		The fourth alleged act of adverse action was described as a failure to take any steps to minimise exposure of Ms Metcalfe to cat dander in the workplace.  This allegation is not made out.  Ms Metcalfe’s evidence does not establish the allegation.  Her evidence is that the initial sign on the door to the nurses’ station was soon replaced by a second sign which she considered unsatisfactory.  She states that in the relevant time period (i.e., on and after 27 October 2011), her symptoms continued to increase whenever she attended the Prospect facility, and that she expressed her concerns from time to time to Ms Gibney.  This evidence does not establish the allegation which she makes.  Counsel for Ms Metcalfe did not make any specific reference to the allegation in closing submissions.
150		The fifth, sixth and seventh allegations of adverse action are conveniently dealt with together because they all relate to one incident or event in late September 2012.  Ms Metcalfe was removed from the roster and did not work on 28, 29 and 30 September 2012.  She was placed on sick leave during that time.  She claims that she wanted to work and that, as a result of being removed from the roster, she did not receive the penalties and other entitlements that she would have received had she worked on those days.
151		For the most part, the facts are not in dispute because they are established by the documents.  Ms Metcalfe was rostered to work on 28, 29 and 30 September 2012.  She was removed from the roster for those days and paid sick leave.  She identifies as her financial loss a reduction in her sick leave, and a loss of penalties and other entitlements that she would have received had she worked.  I do not think that this loss was ever quantified by Ms Metcalfe, but I will assume that there was a loss and, therefore, the definition of adverse action was satisfied in relation to this conduct.  On that basis, the question is whether the respondents have established that Ms Metcalfe was not taken out of the roster for a proscribed reason.
152		In Mr Newman’s letter to Ms Metcalfe dated 26 September 2012, he begins by expressing disappointment that CCH found out about her operation to remove cataracts from her right eye from EML and not from Ms Metcalfe.  He then asks Ms Metcalfe to produce a medical certificate confirming the period of her total incapacity for work prior to and following her operation by close of business on the following day.  Ms Metcalfe did not do that.  Instead, she wrote a note to Mr Headland on his letter in the following terms:
Dear Mike,

When my hospitalisation is confirmed it will be appropriate for me to notify you.  At that time, I will notify you.

I am not prescribed time off work prior to surgery.  

The medical specialist will prescribe capacity & any sick leave that may be required.  When I am given a medical certificate, you will be notified.

153		That note was provided to Mr Newman on 27 September 2012, and he responded by letter dated 28 September 2012.  In his letter, Mr Newman characterised Ms Metcalfe’s response as being a refusal to provide a medical certificate, and said that her statement that she was not prescribed time off work prior to surgery was contradicted by Dr Davis’ prescribed medical certificate.  Mr Newman said that CCH had a certificate stating that Ms Metcalfe was totally unfit for work, and that she would be taken out of the roster until she provided certification that she was fit to return to work.  Mr Newman said that he did not try and contact Dr Davis himself because he had information that Dr Davis was away.  I have considered Mr Newman’s evidence about these matters carefully because his recollection was not always precise and clear.  In the result, I am persuaded that I should accept his evidence.
154		On 28 September 2012, Ms Metcalfe had two long telephone conversations with Mr Case.  During those conversations, Ms Metcalfe expressed the view that Dr Davis’ certificate covered only the day of her operation (i.e., 3 October 2012) or, if there was any doubt, CCH should contact Dr Davis to clarify the effect of the certificate.  Mr Case expressed the view that, in taking her out of the roster, CCH was following the certificate and that she would need a certificate “clearing her” before she returned to work.
155		Mr Newman wrote to Ms Metcalfe on 10 October 2012 asking her to provide a medical certificate certifying her as fit for work, and on the same day, Dr Davis signed a certificate saying that she was and is fit to resume normal duties on 4 October 2012.
156		There followed correspondence between Ms Metcalfe and CCH about the rights and wrongs of her being taken out of the roster on 28, 29 and 30 September 2012.  On 14 November 2012, Dr Davis wrote a letter addressed to “To Whom it May Concern” explaining his certificate and stating that Ms Metcalfe was fit for work up to and including 2 October 2012, and on and from 4 October 2012.
157		I have carefully considered the evidence of Mr Case and Mr Newman with respect to this issue.  I accept Mr Case’s evidence that the reason he expressed for acting as he did, that is, that he had an “open-ended” medical certificate, was his reason.  I do not think a substantial and operative reason for Mr Case acting as he did was Ms Metcalfe’s exercise of workplace rights.
158		Ms Metcalfe submitted that the acts of alleged adverse action described above (at [129], [135], [143], [149] and [150]), and pleaded in paragraphs 11.1.1 – 11.1.7 inclusive of the statement of claim, show that CCH was hostile to her and had targeted her.  I reject that submission.  In my opinion, the respondents’ witnesses were truthful, and I think that they dealt with the various workplace incidents having regard to the circumstances of those incidents, and in a manner which they considered appropriate.  That is not the end of the possible significance of these matters because they form part of a course of conduct which may influence the assessment of later events.
159		I turn now to the adverse action said to have been undertaken by the respondents in November and December 2012, and pleaded in paragraphs 11.2 – 11.5 inclusive of the statement of claim.  It is convenient to deal with the various acts together.
160		In late October or early November 2012, Ms Case advised Mr Case that there had been an incident involving Ms Metcalfe administering medication to a resident on 28 October 2012 without authorisation.  Ms Case advised Mr Case that Ms Gibney had spoken to Ms Metcalfe about the incident and he took no action at that time.  In cross-examination, Mr Case was pressed on more than one occasion on why, if the incident on 28 October 2012 was as serious as he came to regard it to be, he took no action at the time.  He offered no real explanation and said that by not taking action, he had let the residents down.
161		On 9 November 2012, Mr Case was advised, either by Ms Case or by Ms Gibney (he could not remember which), that Ms Metcalfe had again administered medication to a resident without authorisation.  This time Mr Case took action.  Ms Metcalfe was suspended on full pay and a meeting was arranged for 14 November 2012 where the allegations would be put to Ms Metcalfe for her response.  He considered the notes and obtained the Webster pack of Resident B’s medication.  He did this at about 1.30 pm.  He instructed one of the enrolled nurses on duty to photocopy both sides of the Webster pack.
162		Mr Case drew two conclusions from the Webster pack.  First, he concluded that Resident B had received her bedtime dose of oxazepam.  Secondly, he concluded that if Ms Metcalfe had administered a 30 mg dose of oxazepam at 12.25 am on 9 November 2012, then she must have obtained the oxazepam from the Webster pack of another resident, or from some other source.
163		As I understood it, as far as Resident A was concerned, Ms Metcalfe’s case was that the administration of oxazepam at 2.00 am on 28 October 2012 was authorised by the doctor’s order authorising administration of the drug in the morning.  The time in the medication chart of 8.00 am was fixed administratively and had no greater significance.  Any error by Ms Metcalfe was no more than a “signing” error as she could have noted the administration of the drug as a regular administration changing the time from 8.00 am to 2.00 am.  In fact, it was put to Mr Case in his cross-examination that he should have given consideration to disciplining the staff member who administered 7.5 mg of oxazepam at 8.00 am on 28 October 2012.  Mr Case accepted that he had not given consideration to taking that course.
164		CCH’s case was that the administration of 7.5 mg of oxazepam to Resident A at 2.00 am on 28 October 2012 was not part of a regular order, and a doctor’s order was required (and not obtained) for a stat dose or a PRN dose.  That also appears to have been the view of Dr X.  Ms Metcalfe herself referred to the administration as a stat dose for which she sought Dr X’s approval.
165		As far as Resident B is concerned, the same position applies, except that there is one important issue that I need to determine.  Ms Metcalfe claims that at the time she administered oxazepam at 12.20 am on 9 November 2012, there was no record of any administration of oxazepam at 8.00 pm on 8 November 2012.  If that is right, it would suggest backfilling of the records, and a finding that that occurred would be significant in terms of Ms Metcalfe’s case that CCH was acting for a proscribed reason.  However, I do not think it is right.  I accept Ms Rose’s evidence that she administered 30 mg to Resident B at about 8.00 pm on 8 November 2012 and recorded that fact in the RAH “Discharge Pharmacy Order and Administration Chart for Ongoing Supported Care” which formed part of Resident B’s notes.  Leaving aside the fact that it is difficult to see when Ms Rose would have had the opportunity to backfill the chart, I accept her as an honest witness, and I accept her evidence that she filled out the chart at or about the time she administered the medication.
166		I also accept that there was a Webster pack of medication for Resident B at the Prospect facility on 8 November 2012.  It seems to me that that conclusion follows from Ms Rose’s evidence, Mr Case’s evidence about his observations of the Webster pack the following day, the note from the RAH stating that a Webster pack was to arrive at the nursing home at 5.00 pm on 8 November 2012, “in time for night time medications”, and the tax invoice from Mawson Lakes Chemplus recording purchases at about 11.00 am on 8 November 2012.  In view of these conclusions, it is more difficult for Ms Metcalfe to argue that the oxazepam was administered against a regular doctor’s order because the doctor’s order was for administration of the drug at night and she administered the drug in the morning.
167		As I have said, neither party suggested that I needed to make findings about whether Ms Metcalfe’s administration of oxazepam to Resident A and to Resident B was authorised and legal, or unauthorised and illegal.  Nevertheless, if the grounds for termination were plainly insufficient to justify termination, then that would be a significant obstacle in the respondents’ way in terms of them discharging the burden of proof in s 361(1) of the Act.  However, that is not the case here because I think the unauthorised administration of oxazepam, and the letter to Dr X, could constitute grounds for termination.  Furthermore, I think that there were reasonable grounds for Mr Case to believe that the administration of the oxazepam was unauthorised and, of course, the letter to Dr X (which Ms Metcalfe does not dispute sending) speaks for itself.
168		Ms Metcalfe sought to make something of the fact that Mr Case did nothing after the incident involving Resident A, but then reacted swiftly after the incident involving Resident B.  She accepted that nothing “happened” between 28 October 2012 and 9 November 2012 that might explain Mr Case’s reaction on 9 November 2012.  However, she submitted that the appropriate inference is that CCH, and Mr Case in particular, knew they did not have sufficient evidence to act against Ms Metcalfe on 28 October 2012, but considered they did after the incident on 9 November 2012.  She pointed to the fact that she was not counselled after the incident involving Resident A, and almost went as far as to suggest that counselling was withheld for the reason that it was hoped that she would transgress again.  Insofar as it is implicit in these submissions that Mr Case was waiting to build up a case against Ms Metcalfe, I reject that suggestion.  I accept Mr Case’s evidence that his failure to act on 28 October 2012 was a result of neglect on his part.
169		Ms Metcalfe submitted that the investigation which CCH commenced on 9 November 2012 and completed on or about 3 December 2012 was not conducted in an impartial and independent manner.  Furthermore, there were deficiencies in the way in which the investigation was handled.  The relevance of these matters was said to be that they threw light on Mr Case’s reason or reasons for terminating Ms Metcalfe’s employment.  
170		The matters which Ms Metcalfe advanced in support of this submission are not made out.  It was not unreasonable for Mr Case to conduct the investigation and I did not understand Ms Metcalfe to suggest otherwise.  
171		Ms Metcalfe was critical of the MAC meeting on 14 November 2012.  In the cross‑examination of Mr Case, it was suggested that the committee was not independent because of the relationship between CCH and Chemplus, and that it was not as qualified as it might have been because the Chemplus representatives were pharmacists and not doctors or nurses.  I am not sure whether those matters are still advanced, but in any event, I reject them.  In closing submissions, Ms Metcalfe suggested that Mr Case in some way controlled the outcome of the meeting.  I reject that submission as well.  The meeting took place.  It was not a façade erected by Mr Case to give legitimacy to a decision which he had already taken.  The outcome of the meeting was not conclusive in the sense of making the termination of Ms Metcalfe’s employment inevitable.  I accept that the pharmacists from Chemplus had some expertise in the administration of a scheduled or prescription only medication, and that they expressed their opinions in good faith.  I do not think that any particular conclusion is to be drawn from the fact that Mr Case did not attend the meeting with Ms Metcalfe on 14 November 2012.  Ms Case and Mr Newman attended on behalf of CCH, and I find that the notes of the meeting which were put in evidence convey the substance of what Ms Metcalfe was saying at that point in time.  In any event, Ms Metcalfe was given a full and proper opportunity to advance her case, and any material in support of it, in the correspondence between 14 November 2012 and 3 December 2012.  Whilst it is true that Mr Case’s letter to Ms Evans dated 3 December 2012 gave Ms Metcalfe only to the close of business that day to respond, and that fact, and Mr Case’s checking of Ms Metcalfe’s remuneration entitlements on or around 29 November 2012 (the timing of which he was unable to explain in cross-examination), might suggest that Mr Case had come close to making up his mind to terminate Ms Metcalfe’s employment in and around the end of November 2012, it does not bear on his reasons for doing so if I accept (as I do) that Mr Case’s expressed reasons were his reasons for terminating Ms Metcalfe’s employment.
172		I must take into account Ms Metcalfe’s exercise of workplace rights and, I include in that, the manner in which CCH, Mr Case and others responded to Ms Metcalfe’s workers compensation claim, and the events leading up to Ms Metcalfe’s suspension from her employment on 9 November 2012 and said by Ms Metcalfe to constitute individual acts of adverse action.  I also take into account the way in which the investigation was conducted between 9 November 2012 and 3 December 2012.  I must also take into account my conclusion that there was a reasonable basis for Mr Case to determine that Ms Metcalfe’s employment ought to be terminated, having regard to his view of her administration of oxazepam to Resident A and Resident B and her letter to Dr X.  Having regard to those matters, and the evidence generally, I think that the respondents have discharged the burden imposed by s 361(1) of the Act of establishing that Ms Metcalfe’s employment was not terminated because she had exercised workplace rights.
173		The complaint to AHPRA followed Mr Case’s findings and decision, and I do not think that the decision to lodge a complaint was motivated by a proscribed reason.
174		These conclusions mean that Ms Metcalfe’s application must be dismissed.
RELIEF
175		It is not necessary for me to address relief in view of my conclusion on liability.  However, it may assist if I make some observations about the submissions the parties made concerning relief.
176		Ms Metcalfe claimed compensation by way of economic loss and non-economic loss resulting from the termination of her employment by CCH.  She sought past economic loss and reinstatement or, in the alternative to reinstatement, future economic loss.  She also sought the imposition of a pecuniary penalty and interest.  Ms Metcalfe’s submissions about relief were primarily directed to the consequences of the termination of her employment by CCH.
177		As to past economic loss, Ms Metcalfe claimed the full amount of what she would have earned at the Prospect facility from December 2012 to the date of trial.  She was fit to work during this period and, in fact, maintained employment with another employer.  She did not give any evidence-in-chief about whether she considered obtaining further employment during this period.  In cross-examination, she said that she did not attempt to obtain further employment during this period because of doctor’s advice.  I would not be disposed to place any weight on her brief evidence to this effect.  The doctor or doctors were not identified and the precise nature of the advice and when it was given were not identified.  There was no medical evidence directed to Ms Metcalfe’s capacity or ability to seek further employment during this period.  These matters would have to be taken into account in considering any award for past economic loss.
178		As to reinstatement, I would not have ordered reinstatement, even if I had concluded that Ms Metcalfe’s employment was terminated for a proscribed reason.  It is true that Mr Case no longer works for CCH.  However, there are other factors which lead me to conclude that reinstatement would not be appropriate.  Dr X is the medical practitioner for a number of residents in the Prospect facility.  Ms Metcalfe’s letter to him dated 14 November 2012 in content and tone was, on any view of the facts, inappropriate.  Furthermore, as I have said, I reject the serious allegation made by Ms Metcalfe that Resident B’s relevant medication chart had been “backfilled”.  That allegation suggests inappropriate conduct by Ms Rose, and perhaps others, at the Prospect facility.
179		As to future economic loss, Ms Metcalfe put forward a calculation based on 10 years’ future economic loss reduced by 20% for contingencies.  Ms Metcalfe was about to turn 61 years of age by the time the trial concluded.  She did not give evidence that she intended to work for another 10 years and, in fact, she gave no evidence about her future plans.  I would not be prepared to assume these things in circumstances where she had a full opportunity to give evidence about them.
180		As to non-economic loss, the evidence adduced by Ms Metcalfe was meagre.  It consisted of one paragraph in her affidavit wherein she said that she found CCH’s conduct very distressing, and her dismissal humiliating and damaging to her reputation.  No further details were provided, and no third parties were called to depose to Ms Metcalfe’s reputation.  I simply make the perhaps obvious point that these matters would be relevant to the assessment of any compensation for non-economic loss.
181		Finally, as to civil penalties, the submissions of Ms Metcalfe were put at a general level, and she claimed that the maximum penalty should be imposed.  I do not think that, on any view of the facts, there are grounds for imposing a civil penalty on Ms Case.  On my findings, there is no case for civil penalties against CCH or Mr Case.  Should these findings be overturned, then it would be necessary to consider carefully the findings in lieu of my findings in determining whether civil penalties should be imposed and, if so, in what amount.
CONCLUSION
182		For the reasons given above, the application is dismissed.  I will hear the parties as to any other orders.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.	

Associate:	

Dated:	16 March 2015