Amy Van Leeuwen v Richmond Fellowship of WA

[2015] FWC 2799

[2015] FWC 2799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Van Leeuwen
v
Richmond Fellowship of WA
(U2014/1979)

COMMISSIONER WILLIAMS PERTH, 28 APRIL 2015

Termination of employment.

[1] This matter concerns an application made by Ms Amy Van Leeuwen (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Richmond Fellowship of WA (the respondent).

Background

[2] The respondent is an organisation that provides accommodation and community-based support services to clients who are typically persons with a diagnosable mental illness.

[3] At the time of the applicant’s dismissal she was employed as the Acting Site Coordinator for the East Fremantle residential site. This position reports to the Program Manager Residential Services which is a position located away from the East Fremantle site.

[4] Some of the key functions and accountability of the Acting Site Coordinator are:

• To provide an environment within the accommodation facility that enables residents who have acquired a mental illness label to confidently embark on a journey of recovery.



• To oversee the administration of the accommodation and recovery site including day-to-day management of staff, ensuring the site is maintained, client records are properly kept and clients are assisted in their goals towards independent living through appropriate recovery programs and reporting to the program manager.

[5] The Acting Site Coordinator is responsible for the management of two employees working as Recovery or Support Workers.

Evidence and Consideration

[6] Evidence was given by the applicant, Mr Adrian Munro the Executive Manager Operations of the respondent, Ms Josie Scata the Metropolitan Residential Services Manager who is the Manager to whom the applicant directly reported, Ms Julie Webster and Ms Anna Sinclair both who are the Recovery Workers whom were reporting to the applicant at the East Fremantle site.

[7] Having considered the witnesses’ evidence my factual findings are set out below.

[8] The applicant commenced employment in 2007 and was originally employed as a Support Worker. She was promoted to be a Recovery Worker and acted in several other roles of a more senior nature. At the time of her dismissal she was the Acting Site Coordinator for the East Fremantle site.

[9] Between 28 March 2014 and 2 May 2014 the applicant was absent on sick leave other than for Wednesday, 9 April 2014 when she returned to work for a three hour shift.

[10] On Monday, 7 April 2014 Ms Sinclair entered the room of a resident. That particular person will be not identified in this decision but will be hereinafter referred to as “the resident”.

[11] Ms Sinclair observed that the resident’s room was in an appalling state and that there was an overwhelming stench within the room. Ms Sinclair had previously raised with the applicant frequently on a weekly and sometimes daily basis her concern that the resident was acutely unwell 1.

[12] Ms Sinclair sent an email notifying the applicant of what she had seen. Because the applicant was absent on sick leave Ms Sinclair also wrote an email, with the assistance of Ms Webster, detailing her concerns to the applicant’s Manager Ms Scata and Ms Furness the respondent’s Clinical Recovery Manager.

[13] That email advised that the issues of concern needed to be addressed immediately and had greatly escalated over the past two weeks and requested additional assistance to be provided to give the resident the support she requires.

[14] The email detailed a number of physical health concerns about the resident which the writers assessed to be of a very serious nature.

[15] The email detailed concerns about the resident’s ongoing mental health and noted that she had been rendered immobile and isolated herself in her room for days at a time.

[16] The email detailed concerns about the resident’s personal hygiene and that when she left her room her presence was highly offensive in terms of odour and body fluids being left in communal areas.

[17] The email noted that staff had not been able to enter the resident’s room for room checks or fire alarm checks and any attempt to do so was met with hostility and aggression.

[18] The email noted that on entering the resident’s room the staff member was shocked and dismayed by the squalor of her environment. There were no sheets on her bed, rubbish littered the floor and the smell was overpowering. The staff member was saddened and distressed by the way in which the resident was currently living.

[19] The email stated it was the writers’ belief the resident required a mental health assessment and some clinical assistance to address her declining mental health and that the resident is at serious or extreme risk.

[20] Ms Scata received the email late on Monday, 7 April 2014 and the following morning spoke to appropriate staff to arrange a follow-up and contact with the resident’s Case Manager Ms Victor.

[21] On Tuesday, 8 April 2014 Ms Webster commenced her shift at the East Fremantle site and walking onto the premises saw the resident slumped over an office chair and apparently in agony. Ms Webster called an ambulance and the resident’s Case Manager Ms Victor and the resident was transferred to Fremantle Hospital. Ms Webster returned to her duties and noted that the resident’s room was locked.

[22] The following day Wednesday, 9 April 2014 Ms Webster attended for work and was the only staff member on site. The resident’s Case Manager Ms Victor rang and advised that the resident had given permission to enter the resident’s room to obtain her mobile phone and her purse.

[23] Ms Victor came to the site around 2.00 p.m. and with Ms Webster approached the resident’s room. Ms Webster became aware of a very strong odour originating from the resident’s room which permeated the corridor and surrounding bedrooms even with the resident’s bedroom door being closed. Upon unlocking and entering the room Ms Webster noticed a bucket full of human faeces and urine. The room was in a squalid state.

[24] Ms Webster was composing an email to Ms Scata and Ms Furness about the situation when the applicant arrived at work. Ms Webster explained to the applicant what she was doing and the applicant advised that she did not wish to read the email. Ms Webster then more fully briefed the applicant on the situation with the resident and they walked to the resident’s room.

[25] Upon entering the room the applicant disputed that the bucket in the room from which the foul odour was coming contained human waste. The applicant then rushed out of the room dry retching.

[26] The email of Ms Webster reads as follows:

“Anna Victor has just been on site to collect ......’s personal items, she was with another case manager from ASC, Jonathan. I accompanied them into the room. The room is that of someone living in squalor, there is a pile of rubbish next to the bed, a meter high by a meter wide, containing empty pizza boxes, some half eaten food in containers, entity empty food packets and more. There are general items piled high throughout the room. The bed has no sheets and the mattress is stained throughout. The stench and the room comes from a bucket next to the bed containing urine and feces,(sic) this stench has permeated the entire house.

Amy has just arrived at the office for the late shift 3-7 and asked me to advise you that she will follow up with ...... and discuss issuing a warning to ....... with you.”

[27] Upon the room later being cleaned the following was found; approximately 27 Webster packs, three ziploc bags containing approximately 50 tablets of valium, 35 tablets of propanolol and 22 tablets of zopiclone.

[28] For a few months prior to this event Ms Webster had also been expressing to the applicant her concerns for the resident and about the smell coming from her room.

[29] The following day Thursday, 10 April 2014 Ms Scata and Ms Furness attended at the East Fremantle site and in the company of Ms Webster and Ms Sinclair all inspected the room.

[30] Ms Scata found the room to be in a filthy and appalling state with the bucket emitting the foul odour present and an alarming amount of rubbish and food scraps present as well as menstrual pads and bloody towels.

[31] At the hearing the applicant in her evidence does not agree that the bucket emitting the foul odour in the resident’s room contained faeces and urine however multiple other witnesses believe that was the case and on the balance of probabilities I find that this was indeed the contents of the bucket in the resident’s room. I observe that little turns on this as all persons who entered the resident’s room between 7 and 10 April 2014 agree the room was in an appallingly squalid state.

[32] The applicant being aware of the state of the resident’s room on Wednesday, 9 April 2014 did not take any action believing that there was no immediate risk as the resident was not on-site, being in hospital, and that Ms Scata would follow up on the issue having received Ms Webster’s email that afternoon.

[33] The applicant had been aware for some time of the smell coming from the resident’s room and appreciated that it would have been difficult for other residents to live with 2.

[34] The applicant was aware that the resident isolated herself in her room for months without showering 3.

[35] The applicant’s evidence was that prior to this incident it had been approximately three months since she had entered the resident’s room.

[36] The evidence of Ms Sinclair was that prior to this incident staff had not been able to enter the resident’s room for at least a month or two.

[37] The evidence is that the resident’s Case Manager Ms Victor had on occasions conducted consultations with her through the resident’s closed bedroom door.

[38] In emails after the resident’s room had been entered, regarding whom would clean up the resident’s room, the applicant expressed the view that the respondent’s staff should not help with the cleanup because the resident involved had previously made allegations of items being stolen when staff had packed up her room at one of the respondent’s other facilities. The applicant indicated her view that the resident’s Case Manager who is not an employee of the respondent should clean the room because the resident had given permission to her to do this “chore” 4.

[39] Subsequently Ms Sinclair and Ms Webster started the cleanup process filling a number of garbage bags with waste from the room. Professional cleaners were engaged to complete the cleaning of the room which took approximately ten hours 5.

[40] Certainly the state of the resident’s room may have deteriorated in the two weeks the applicant was absent however once she was aware of it having herself entered the resident’s room the applicant demonstrated a lack of urgency or concern about the situation. She failed to recognise the hazard the unhygienic state of the room posed to her staff and other residents.

[41] The applicant should have appreciated that the resident denying staff entry to her room for a period of months created risks. This should have been reinforced by the fact that she herself and others had been experiencing the smell coming from the resident and her room which had been interfering with other residents and the staff for a lengthy period.

[42] The applicant having seen the state of the resident’s room persisted with the same approach of being reluctant to enter the room without the resident’s permission even to have it cleaned. She at no time seemed to have appreciated even after the state of the room came to light that not being able to enter the resident’s room had allowed the deterioration of the resident’s situation to be hidden.

[43] The evidence of the applicant which is confirmed by Ms Scata is that she had previously raised with Ms Scata her concerns about this resident who the applicant says has complex and challenging behaviours. The applicant says her concerns were that the resident was spending lengthy amounts often days in her room and would only respond through her door, without opening the door, and was neglecting her personal hygiene resulting in strong odours permeating throughout the house. The applicant’s evidence was the resident would not allow other staff to enter her room. The resident in question weighs approximately 200 kg and would become volatile and aggressive if staff attempted to enter her room.

[44] The evidence of Ms Scata is that while the applicant did raise concerns about the resident with her this was nothing unusual given the nature of the clients the respondent deals with and that many of the clients are challenging to deal with. Her evidence was that strategies to deal with this particular resident’s issues were discussed with the applicant prior to this incident occurring but that at no stage did she understand from the applicant that something needed to be done immediately 6. Considering Ms Scata’s evidence and the applicant’s evidence on these issues I am satisfied that it was never made clear to Ms Scata that the resident’s problematic behaviours had reached a point that they were now so serious that urgent intervention was needed.

[45] With respect to the issue of supervising the two staff under her, the applicant agrees that she was required as part of her job description to conduct bimonthly supervision sessions with each part-time employee 7.

[46] Supervision sessions were to be conducted in a confidential setting, documented on a supervision template signed by both the supervisor and the supervised employee and a copy of the supervision documents provided to the supervised employee.

[47] The staff supervision policy explains supervision is a process to supervise the work of another worker in order to meet operational requirements, professional and personal objectives which together promote the best outcomes for service users.

[48] On 5 May 2014 Ms Sinclair and Ms Webster the two part-time employees reporting to the applicant requested a meeting with Ms Scata. They met the following day and the employees told Ms Scata that they had not been receiving supervision from the applicant for some time.

[49] Ms Sinclair’s evidence was that the last supervision she could recall was in November 2013.

[50] Ms Scata requested copies of the supervision documents for the two employees from the applicant and upon receiving those documents discovered that the applicant had only completed supervision reports for Ms Webster in June 2013 and February 2014 and for Ms Sinclair in November 2013 and February 2014. The supervision report for Ms Sinclair dated February 2014 was actually created on 6 May 2014 the day Ms Scata requested this supervision reports from the applicant. Ms Scata’s evidence was that the applicant had previously advised her that she was up-to-date with the supervision reports. The evidence of Mr Munro was that the applicant had provided him with an update on her progress against objectives on a monthly basis and on each occasion she had advised him that the supervision meetings were being held with her staff.

[51] The applicant explained that on occasions planned supervision meetings were cancelled for a number of reasons. The applicant also explained that she had been having difficulties with her work laptop. Consequently on occasions she made notes of supervision meetings on her personal iPad. Because of this when Ms Scata requested the supervision records on 6 May 2014 these notes were transferred onto the respondent’s system from her iPad for the supervision conducted with Ms Sinclair in February 2014. I accept this explanation for the creation date for this particular supervision record.

[52] In the disciplinary interviews with Mr Munro the applicant agreed she had not routinely completed the supervision documents for her staff and stated she did not think this was necessary because they were high performers.

[53] This evidence together clearly demonstrates that the applicant was not undertaking supervision with each of the two employees bimonthly which was a specified requirement in her job description but had allowed Ms Scata and Mr Munro to understand she had met this requirement.

The legislation

[54] The criteria the Commission must have regard for when considering whether a dismissal was harsh, unjust or unreasonable are provided for in section 387 of the Act which is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[55] There is no doubt in this case that the state of the resident’s room when it was first entered by staff on 7 April 2014 was absolutely unacceptable.

[56] The applicant was the Acting Site Coordinator and as such I accept should be held accountable for this room being in the state it was.

[57] Some of the key functions and accountability of the Acting Site Coordinator are to ensure the site is maintained and provide an environment within the accommodation that enables residents to embark on a journey of recovery.

[58] However in this instance the applicant had been absent on leave for approximately two weeks prior to the state of the resident’s room being discovered. For the applicant it is argued that this effectively absolves her of responsibility for the room being in the squalid state it was.

[59] In my view however the evidence is clear that it was the applicant’s regrettable failure to manage the situation with this resident which created the circumstances that allowed this resident to be living for an extended period undetected in squalid circumstances.

[60] The evidence is this situation had been ongoing for far longer than the two weeks the applicant was absent on leave. There is no reason to believe that if the applicant had been working rather than on sick leave that the room would have been accessed earlier than it was.

[61] The applicant had been aware of the foul smell coming from the resident’s room for a number of months. The applicant was aware that the resident was neglecting her personal hygiene. The applicant recognised the smell from the resident’s room was negatively impacting on other residents. The applicant was aware that the resident had been preventing staff entering her room for an extended period. The applicant had herself not entered the resident’s room for three months prior to April 2014.

[62] Allowing this resident to prevent staff accessing her room for months at a time obviously created a serious risk. When the room was accessed the fact that the resident had large quantities of untaken medication in her room was one example of that risk as was the fact the resident had been living in extremely unhygienic circumstances.

[63] The poor state of the resident’s room went undetected because staff had not entered the room for a lengthy period.

[64] Self-evidently if staff had been able to enter the resident’s room regularly any deterioration in the living circumstances of the resident would have been identified at a much earlier stage than occurred.

[65] It would be unfair to the applicant to underestimate the difficulty in dealing with the resident to resolve this problem. However the evidence is quite clear that managing residents who exhibit complex and challenging behaviours is the central role of the respondent and its staff and the Acting Site Coordinator. This situation was not in that context an unusual or extreme problem.

[66] Whilst the applicant had discussed the resident’s challenging behaviour with her Manager she had never alerted her Manager to any serious deterioration in the resident’s circumstances nor had she raised with her Manager the risks posed by her staff not being able to enter the resident’s room. I do not accept the applicant had properly escalated concerns of this nature to her Manager and could be said to be waiting for direction from others above her on these concerns.

[67] The applicant’s unwillingness or inability to deal with this situation directly lead to the resident’s room being found in the state it was. This mismanagement amounted to a failure to carry out her responsibilities as the Acting Site Coordinator.

[68] In addition whilst recognising that the applicant had only returned from leave for one day she did not demonstrate any leadership or in any way attempt to take charge of the situation concerning the state of the resident’s room. This further indicated that the applicant either did not recognise the seriousness of the situation or was unwilling to take responsibility for it.

[69] I am satisfied then that the applicant’s mismanagement of the situation before and after the residents’ room was accessed is a valid reason for dismissal.

[70] Separately the evidence is clear that the applicant was not undertaking supervision with each of the two employees who reported to her bimonthly which was a requirement in her job description. The applicant led her superiors to believe she had been meeting these requirements when that was not the case.

[71] This conduct of the applicant was also a valid reason for her dismissal.

Notified of that reason

[72] The applicant was notified of the reasons the employer was considering dismissing her for in a letter dated 7 May 2014.

Opportunity to respond

[73] The applicant had an opportunity to respond to these reasons at a meeting on 12 May 2014.

Support person present

[74] There was no refusal to allow a support present to be present in any relevant discussion.

Warned about that unsatisfactory performance

[75] Warnings about performance are not relevant in this matter.

Size of the employer’s enterprise

[76] The employer has approximately 180 employees and as such followed an appropriate procedure with regards to the applicant’s dismissal.

Dedicated human resource management specialists or expertise

[77] The respondent does have dedicated human resource specialists they were involved in the procedure leading up to the dismissal.

Other matters

[78] The applicant was employed for approximately eight years and is regretful for what occurred and did accept responsibility suggesting that she should remain in employment but no longer be the Acting Site Coordinator.

Conclusion

[79] Considering all of the matters above I am not satisfied that the dismissal of the applicant was harsh, unjust or unreasonable. The applicant has not been unfairly dismissed.

[80] This application consequently will be now dismissed and an order to that effect will be issued in conjunction to this decision.

COMMISSIONER

Appearances:

A Nyariel of the Australian Municipal, Administrative, Clerical and Services Union for the applicant.

S Farrell of the Chamber of Commerce and Industry of Western Australia for the respondent.

Hearing details:

2015.

Perth:

March 26.

 1   Transcript at PN393.

 2   Ibid., at PN107.

 3   Ibid., at PN125.

 4   Exhibit A2.

 5   Exhibit R6 at paragraphs 10 to 13.

 6   Ibid., at PN629 to PN644.

 7   Transcript at PN227.

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<Price code C, PR563387>