Caryn Kruschel v Blue Dawn Health Care T/A Serene Residential Care Service

[2014] FWC 7965

[2014] FWC 7965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Caryn Kruschel
v
Blue Dawn Health Care T/A Serene Residential Care Service
(U2014/8471)


DEPUTY PRESIDENT BARTEL ADELAIDE, 13 NOVEMBER 2014

[1] The applicant, Caryn Kruschel, was dismissed by Blue Dawn Health Care T/A Serene Residential Care Service (the employer or the respondent) on 15 July 2014. The dismissal followed her suspension from the position of Personal Care Worker on 11 July 2014 in relation to an allegation that, at 1.15pm on that day, she threw a packet of adult wipes into a resident’s lap 1 (“the incident”). The resident will be referred to for the purposes of this decision as ‘EP’.

[2] The applicant has applied to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) and is seeking the maximum allowable compensation.

[3] The applicant has been engaged in the aged care sector since 1989. She commenced employment with the respondent’s predecessor in April 2001 and with the respondent when it acquired the business in 2012. The respondent employed approximately 50 employees at the time the applicant was dismissed.

[4] The matter proceeded by way of a determinative conference in accordance with s.398 of the Act. 2 The applicant was represented by Paris Dean, Industrial Officer with United Voice. Sohbat Lutfi, one of the Owners/Directors of the business and also its Facility Manager, represented the respondent. No jurisdictional issues arise from the application.

[5] The applicant gave evidence. A witness statement of United Voice official Christopher Zammit was admitted by consent. 3 Mr Zammit accompanied the applicant to an interview with Mr Lutfi on 15 July 2014. His statement set out the content of the interview, and attached his contemporaneous notes of the interview.

[6] The respondent initially relied upon two witnesses, and the statements that they had made in relation to the incident between the applicant and EP: Judith Okoronkwo, Personal Care Worker and Joan Roberts, a volunteer at the facility. Each statement is only one paragraph long. Mr Lutfi had the opportunity, but declined to provide statements of evidence of each of his witnesses. This not only extended the cross-examination of the witnesses, but also meant that they had not turned their minds to the relevant details of the incident prior to giving evidence.

[7] The Commission had previously advised Mr Lutfi on more than one occasion that it was in the respondent’s interests to file a witness statement from someone who could speak to the investigation and the decision to dismiss the applicant. He chose not to do so, but instead filed an outline of argument 4 which included some evidence as to his role in the process. Despite Mr Dean’s objection, I considered that it was important that Mr Lutfi be sworn in and that this evidence be tested under cross-examination.

The Agreed facts

[8] On 11 July Ms Okoronkwo made a report to a Registered Nurse (RN) that she had witnessed an incident at 1.15pm between the applicant and EP. The incident was subsequently reported by the RN to Mr Lutfi.

[9] The allegation against the applicant fell within the definition of “a reportable assault” as set out in the Compulsory Reporting Guidelines for Approved Providers of Residential Aged Care (the Reporting Guidelines). 5 Mr Lutfi immediately reported the incident to the appropriate authority and to SA Police.

[10] EP was examined by a Resident Medical Officer (RMO) at the Queen Elizabeth Hospital on the evening of 11 July 2014. The RMO found no injury, bruising, laceration or marks of any description and reported that EP was resting comfortably and did not report any pain. 6

[11] The applicant was suspended on 11 July 2014. She was interviewed on 15 July 2014 by Mr Lutfi and dismissed later that evening.

[12] EP is 94 years old, has dementia and is incontinent. She spends most of her time in a ‘princess chair’, which I understand is a comfortable form of wheelchair, with a high back, sides and leg rest.

The evidence

[13] The applicant’s version of the incident set out in her witness statement 7 is as follows. On the day in question, there had been more incontinence issues than normally occur. At 1.15pm EP had a faecal incontinence incident in the dining room. The applicant wheeled EP out of the dining room and left the chair momentarily in the hallway while she entered the nearby sluice room to get a packet of ‘adult wipes’. The adult wipes are wet paper tissues within a soft plastic casing with a small rectangular hard plastic area on the top where the wipes are dispensed. The applicant stated that, as she headed back to the chair, she said words to the effect of “I am over this today” under her breath.

[14] She stated that she required two hands to push the princess chair, and as there was nowhere else to place the adult wipes, she put her arm out over the top of the princess chair and dropped the packet of adult wipes over EP’s shoulder so that they would land between her right leg and the right arm of the princess chair. She did not see where they landed. She heard EP say “ouch” at “a normal volume” and assumed that she had accidentally hit her leg.

[15] The applicant stated that 8:

“I said ‘sorry about that’ or ‘sorry’ to [EP]. I believe I also said ‘I didn’t mean to’. I have significant experience with this resident, [EP]. In my experience [EP] has behavioural issues and often responds poorly or aggressively to carers. Nonetheless, I was genuinely sorry that I had caused her discomfort, although I did not think for a second that I had caused her an injury.”

[16] The applicant recalled seeing Ms Okoronkwo on the way to the sluice room, but no-one else. She recalls someone saying something, but “... at the time I didn’t think they were talking to me. I do not remember saying anything in response.”

[17] At the conference, the applicant provided a demonstration of her actions, indicating that she was standing directly behind the princess chair at the time of the incident and that the adult wipes were dropped from her right hand at shoulder height to land at the right side of the princess chair. In answer to a question from the Commission, the applicant said that she did not look to see where the wipes had landed after the resident said “ouch”.

[18] The applicant said that she then wheeled the princess chair to EP’s room where a co-worker, Lana Swanni, was waiting. They proceeded to clean EP, change her clothes and put her to bed without any complaint from EP.

[19] Under cross-examination the applicant said that at the time of the incident “that’s just a bad day” but disputed that she was angry. 9

[20] Mr Lutfi became aware of the report by Ms Okoronkwo later that afternoon and requested that she prepare a written statement. The statement 10 was in the following terms:

“At about 1.15pm Caryn took a resident [EP] from the upper main dining area to her bed room as the resident had soiled herself. The carer Caryn come out of the sluce (sic) room with a packet of adult wipes. She threw them into the resident’s lap saying she’s sick of this is (sic) twice today already she’s soiled. The resident said ouch. I Judith told her Caryn don’t do that. She said she wants her to carry them. I told her you threw them, don’t do it. I than (sic) reported it to the RN on duty Tasma Birt.”

[21] Ms Okoronkwo demonstrated the applicant’s actions. She said that she was four to five metres away from the applicant at the time and that her view of the incident was unimpeded by any other person or thing. The applicant was four to five feet away from the princess chair and facing more toward the side than the back of the chair. Ms Okoronkwo demonstrated that the applicant threw the adult wipes with some force in a downward motion from shoulder height. As she threw the wipes the applicant made a comment, which was variously stated to be “I’m sick of this shit” or “I’m sick of this. She’s shit twice already”. EP then said “ouch” in a loud voice.

[22] Ms Okoronkwo stated that the wipes couldn’t land in “the whole of her lap” because of the position of EP in the princess chair. As I understand her evidence, EP’s body was usually angled to the right of the chair with her right knee slightly bent and with the outside right thigh against the right side of the chair. EP’s left leg was also bent and was usually higher than her right leg. She accepted that the adult wipes could have hit the top of EP’s right thigh.

[23] She reported the incident to the RN about 10 to 15 minutes after the incident. She said the delay arose because she stopped to tell another carer what had happened and ended up assisting this carer deal with another resident who had an incontinence issue. She said that she was satisfied that EP was at no threat of any further risk from the applicant and that the flare up had passed. 11

[24] Ms Okoronkwo initially said no one else was present when the incident occurred but later stated that Ms Roberts was sitting in a chair in the dining area on the other side of the hallway at the time of the incident. She acknowledged that there was no reference to Ms Roberts’ presence in the statement she prepared for Mr Lutfi, but was adamant that in her discussion with him she said words to the effect that, by the look on Ms Roberts’ face, it appeared that she had seen the incident. 12

[25] Ms Roberts is a volunteer at the respondent’s aged care facility, where she attends seven days per week for approximately 12 hours per day. She assists with feeding residents, sitting and talking with them, conducting bingo and other activities and undertakes some fundraising activities. She is an elderly woman and clearly devoted to the residents and the facility.

[26] Ms Roberts had a deal of difficulty giving evidence. She was nervous and her anxiety about the process was compounded by her conflicting loyalties to EP and to the applicant, whom she regards as a good friend. 13 She was vague in relation to dates and time frames regarding her interactions with Mr Lutfi and the preparation of her statement.

[27] The statement that she prepared for Mr Lutfi was in the following terms 14:

“On Friday 11th of July 2014 at approx. 1-15 I saw Caryn Kruschel come out of the Sleuce (sic) Room with a packet of wipes in her hand. I heard her say I am sick of this and she threw the packet of wipes into the Resident’s lap [EP]. I then heard EP say ‘ouch’ very loudly. I heard Judith Okoronkwo (carer) tell Caryn Kruschel off for what she had just done. I hurried back to the Kitchen to make afternoon tea for the Residents as I was upset at what had just happened.”

[28] The statement bore the date “12.7.14” but Ms Roberts confirmed under cross-examination that this was not her handwriting and she was unsure of the date the statement was prepared. Later under cross-examination she said that the statement was not prepared on 12 July but “sometime later”. 15

[29] Ms Roberts stated that, at the time of the incident, she was pushing a trolley on her way back to the kitchen. She said that she was six or seven feet from the applicant at the time. The applicant was standing about one foot to the side and toward the back of the princess chair. Ms Roberts couldn’t recall which hand the applicant used to throw the wipes, or if she threw them with both hands, but said it was with some force in a downward motion.

[30] Ms Roberts did not report the incident although she knew she should have done so. She said she was upset and conflicted by her friendship with the applicant. 16

[31] Ms Roberts was very vague about her discussions with Mr Lutfi but it appears that she spoke with him on two occasions. On the first occasion, which she initially said was on 12 July,   but later said she couldn’t recall what date it was, 17 Mr Lutfi approached her and asked if she had witnessed an incident. On this occasion she denied having seen anything, and at the conference explained her behaviour by saying “... I was in denial what I’d seen. I was upset. I was really upset”.18

[32] She said that there was a further conversation with Mr Lutfi which took place in the dining room. She does not recall the date, only that the applicant was no longer at work. Ms Roberts couldn’t recall whether she approached Mr Lutfi or he approached her, but on this occasion she told him what she had seen.

[33] The following exchange took place with the Commission: 19

“I just wanted to be clear that in relation to the discussions you had with Mr Lutfi where he asked you about whether you had witnessed the incident or the discussions around the incident, there were two separate discussions and on the first occasion you said you hadn’t witnessed anything or hadn’t seen anything and on the second occasion you said you had?  -Yes.

Is that correct?  -I think so. I think so. I’m not quite exactly sure even.

Which bit aren’t you sure about, whether there were two conversations or - - -?   -Whether there were two conversations or whether I just asked him – just told him. I know I was so upset about it and I’m still upset about it, too.”

The investigation by Mr Lutfi and the dismissal

[34] Mr Lutfi’s written outline 20 states that, after he became aware of Ms Okoronkwo’s report to the RN, that he “... called the person reporting the incident (Judith Okoronkwo) and the witness (Joan Roberts) in his office and they described the incident and provided two statements ...”. While no dates are attributed to this event, Mr Lutfi’s outline appears to be structured in chronological order and the placement of the passage cited above tends to indicate that both statements were provided on 11 July 2014. When this was raised with him, he said that it is correct that he called both Ms Okoronkwo and Ms Roberts into his office on 11 July, but that only Ms Okoronkwo provided a statement on that day.21

[35] In his oral evidence, Mr Lutfi said that when he received Ms Okoronkwo’s statement on 11 July she told him that Ms Roberts may have seen the incident. He then approached Ms Roberts on that day in the lounge room but she denied having seen anything. The following afternoon she told him that she had seen the applicant throw the adult wipes and at that point Mr Lutfi asked her to prepare a statement. He readily acknowledged that he placed the date of 12 July on Ms Roberts’ statement and said that this was the date on which he received it.

[36] He denied the proposition put by Mr Dean that he had left Ms Roberts initial denial out of his outline because it would harm his case and said in effect that it was an oversight.

[37] An incident report signed by Mr Lutfi on 12 July 22 indicates that there were no witnesses apart from Ms Okoronkwo and that he asked other staff members and the volunteer on the floor, but no one heard or witnessed the incident. Mr Lutfi stated that he had completed an incident report before he was approached by Ms Roberts.

[38] His typed summary of the 15 July meeting with the applicant 23 records that the following allegation was put:

“You were the Personal Care Worker on duty on Friday 11th July 2014. At 1.15 pm, you took one of the residents from the upper main dining area to her bed room after an incontinence incident. You came out of the sluice room with a packet of adult wipes and threw them into the resident’s lap and you stated ‘I am sick of this’ twice. Resident said ‘ouch’. Your co-worker told you do not do that Caryn”.

[39] The typed summary also indicates that Mr Lutfi declined to identify the co-worker who reported the incident and made no mention of a volunteer having witnessed the incident. He disclosed that the resident was EP.

[40] The applicant’s description of the events at the meeting is consistent with her evidence at the conference, and won’t be repeated here. She stated that she had had a bad and busy day and that she would not hurt residents.

[41] Mr Lutfi then met with the other two Directors of the facility and they concluded that the applicant’s actions caused harm to a frail elderly resident which constitutes serious misconduct warranting instant dismissal. The respondent considered that the applicant’s actions met the definition of “physical assault” in the Reporting guidelines, which he cited as “Any unreasonable force relates to any unnecessary or unwarranted or non-accidental physical contact with a resident”.

[42] After the Directors’ meeting Mr Lutfi advised the applicant of the decision to terminate her employment and followed up with letter confirming the termination that evening (15 July 2014).

Submissions

[43] I have taken into account the entirety of Mr Dean’s written and oral submissions. In summary he submitted that:

• There was no valid reason for dismissal, as the applicant did not engage in the conduct as alleged. The onus of proving that the conduct did occur falls upon the employer and the serious nature of the allegation requires a standard of proof consistent with Briginshaw v Briginshaw (Briginshaw). 24



• The applicant provided a cogent explanation of her actions and the fact that no injury or bruising occurred to EP is consistent with the applicant’s version of events and inconsistent with the allegation against her. The fact that the resident said “ouch” was readily acknowledged by the applicant however it may have been because she experienced pain, discomfort or shock.



• Ms Okoronkwo’s evidence regarding the words used by the applicant in the course of the incident is inconsistent and it is not credible that she would take 15 minutes to report the incident if it was as serious as she described.



• Ms Roberts was not a witness to the incident and her evidence has been manufactured in collusion with Mr Lutfi. Ms Okoronkwo initially stated under cross-examination that no one else was present, there is no mention in her witness statement of Ms Roberts being present and there is no mention in Mr Lutfi’s incident report that Ms Roberts was present. Mr Lutfi did not mention that there was a second witness to the incident when he interviewed the applicant on 15 July. It is not credible that if Ms Roberts saw the incident that she would not report it.



• There was a denial of procedural fairness because the respondent did not disclose to the applicant the identity of the person who made the report against her and Mr Lutfi is relying on manufactured evidence against the applicant.



• The applicant has no prior warnings for inappropriate treatment of residents in 25 years of service in the aged care industry. She received only one prior warning from the respondent which concerned an unrelated matter in relation to a shift she undertook as a cook in April this year, and for which she accepted responsibility.



• The actions of the applicant may have warranted counselling or at most, a warning that she should be more careful in future, but dismissal was disproportionate to her actions.



• The applicant has obtained other employment and does not seek reinstatement, but is seeking the maximum compensation payable under the Act.




[44] Mr Lutfi stated that the applicant was guilty of the alleged conduct, that it constituted unreasonable force and that the appropriate sanction was dismissal. It was his view that any outcome other than a decision that the respondent was entitled to dismiss the applicant would be encouraging elder abuse.

[45] He was upset at Mr Dean’s cross-examination of Ms Okoronkwo and Ms Roberts, viewing it as a personal attack upon them. He was particularly upset by Mr Dean’s submission that Ms Roberts had lied to the Commission and that Mr Lutfi had encouraged her to do so and denied that this was the case. He stated that Ms Roberts would not lie and that she had been honest in her evidence to the Commission.

[46] Mr Lutfi was of the view that the inconsistencies between the evidence of Ms Okoronkwo and Ms Roberts and the lack of clarity in Ms Roberts’ recall of dates and times was of no importance, as they both witnessed the applicant throw the adult wipes with force at the resident. He submitted that the inconsistencies may have arisen because they were uncomfortable with the strenuous questioning by Mr Dean, but that the central allegation against the applicant was substantiated by their evidence.

Consideration

[47] Section 387(a) to (h) of the Act identifies eight criteria that the Commission must take into account in considering whether a dismissal is harsh, unjust or unreasonable:

“(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 –s.387(a)

[48] In determining whether there was a valid reason for the dismissal, the Commission must determine whether there was a “sound, defensible or well-founded” reason for dismissal 25 based on an objective analysis of the relevant facts. The employer’s belief that the termination was for a valid reason is not sufficient.26

Did Ms Roberts witness the incident?

[49] In making findings on the incident, I have rejected the submission that Ms Roberts was not present and that her statement was manufactured in collusion with Mr Lutfi.

[50] I consider that there are plausible explanations for her apparent “invisibility” in the process leading up to the applicant’s termination of employment, most of which concern the manner in which the respondent approached the investigation. Not only did Mr Lutfi wish to preserve the anonymity of the witnesses, but his evidence indicated that he was very protective of Ms Roberts. I consider that this is the reason there is no mention of her initial denial of having witnessed the incident in any of the documentation he prepared.

[51] I find that Mr Lutfi completed his incident report on 12 July prior to Ms Roberts acknowledging that she had in fact witnessed the incident. It seems unlikely that Mr Lutfi would go to the trouble of manufacturing additional evidence against the applicant and then fail to amend the incident report to include it.

[52] The statement prepared by Ms Okoronkwo on 11 July was in response to a request from Mr Lutfi that she prepare a statement about the incident she witnessed. She was not requested to provide further details.

[53] Ms Okoronkwo’s failure to mention Ms Roberts’ in her initial evidence under cross-examination was one of several examples of changing her evidence. She was not a ‘good’ witness. She described the details of particular incidents in different ways at different times, she was not immune from embellishing aspects of her evidence and there was a level of reconstruction in her evidence also. This makes her evidence unreliable in some respects and requires that all her evidence be scrutinised carefully.

[54] She initially stated under cross-examination that she didn’t observe anyone else when the incident occurred. 27 When she was re-examined by Mr Lutfi she mentioned that she saw “the shock on somebody else’s face” after the incident.28 Mr Dean was given permission to ask further questions and the following exchange took place:29

“MR DEAN: You said you saw the shock on someone else’s face?  -Yes.

Can you tell me who that person was?  -Joan.

And who’s Joan?  -She’s our volunteer – volunteer lady.

Can I suggest to you - I’ll do it this way. Earlier you said you saw no-one else there. Do you recall saying that?  -No. You said, “Was there anyone crossing our paths and blocking?” and I said, “No, because nobody was,” but I did say there was another person in the room.

No, you didn’t say that?  -Okay. Well - - - 

And earlier on I asked you whether – I said words to the effect of, “Outside of blocking your path, was there anyone else there?” and you said, “There was no-one else.” Do you recall saying that?  -Yes, I do, actually.

Okay?  -Yes.

And I suggest - - -?  -I thought you meant as in carer, as in another carer there.

So you thought because Ms Roberts was a volunteer, I wasn’t concerned to ask whether she was there?  -No. I just didn’t even think of it when you said it ...”

[55] As unsatisfactory as this evidence is, I accept that Ms Okoronkwo did see Ms Roberts at the time, and that her initial evidence at the conference was in error. I am satisfied that she alerted Mr Lutfi to the fact that Ms Roberts may have witnessed the incident. Her evidence was unwavering on this point and it is consistent with Mr Lutfi approaching Ms Roberts after he spoke with Ms Okoronkwo.

[56] Ms Roberts’ evidence as to dates and time frames was vague, but her evidence concerning the incident was more reliable. I accept her evidence that she witnessed the incident and that she initially denied having done so because she was upset and felt compromised by her friendship with the applicant.

What happened in the incident?

[57] In making findings of fact I have had regard to the standard as set out in Briginshaw. This was discussed in Budd v Dampier Salt Limited, 30 where one of the grounds of appeal was that the Commissioner at first instance had misapplied Briginshaw. The Full Bench stated:

“[14] ... So far as relevant, [Briginshaw] decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: ‘The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.’

[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore,it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities...

[16] ...Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. ...”

[58] After the applicant came out of the sluice room and was walking toward the applicant she threw the adult wipes into the princess chair. I find that she did not drop the wipes over the back of the chair but there was some force associated with her action reflecting her frustration with the course of events that day. Despite the inconsistencies in the evidence of Ms Okoronko and Ms Roberts, both were clear that there was a level of force in the applicant’s actions and that she made an audible comment reflecting her frustration to the effect that “I’m over this” or “I’m sick of this shit”. I also find that EP said “ouch” in a loud voice.

[59] The applicant by her own admission was somewhat frustrated at the time. Her evidence that she did not look to see where the adult wipes had landed after EP complained is surprising. In addition, if the applicant apologised to EP as she said, she must have done so without looking at her or else she would have seen where the wipes landed. Both these matters are consistent with the applicant being in a state of mind where she did not want to engage with EP.

[60] There is no evidence and I find that the applicant had no intent to hit EP with the wipes. I accept the applicant’s evidence that she intended the wipes to land between EP’s leg and the side of the chair and that she was genuinely sorry that her actions caused discomfort or distress to EP.

[61] There is no direct evidence as to where the wipes did in fact land. Ms Okoronkwo’s evidence about EP’s positioning in the chair was not what she witnessed but was based on how she usually sat in the princess chair. She did not see where the wipes landed. In my view, the absence of any bruising or swelling when EP was examined is significant. She is a frail, 94 year-old resident. The evidence before the Commission is that even slight contact may cause bruising and tearing to an elderly person’s skin, let alone contact from a throw as described by the respondent’s witnesses. In the circumstances I conclude that any contact between the wipes and EP was minor and that the most likely scenario is that the packet of wipes did not make full contact with EP. There is no suggestion of any complaint by EP or any ongoing discomfort or distress beyond her call of “ouch”.

[62] EP had no view of the applicant immediately prior to the incident and the wipes landing in her chair with some force and making some contact with her would have been unexpected and caused a level of pain and/or discomfort.

[63] I consider that the applicant failed to consider the possible consequences of her actions and her professionalism was compromised by her emotional state. In particular she did not consider the possibility that she may hurt EP or that her actions would at the least startle and potentially distress her. I conclude that there was a valid reason for the dismissal.

[64] The respondent’s allegation is that the applicant threw the wipes into the resident’s lap. The allegation and the evidence of Mr Lutfi imply that the applicant intended to throw the wipes into the resident’s lap and that was in fact achieved. Neither of these matters has been made out to the requisite level of satisfaction as per Briginshaw.

Procedure – ss.387(b), (c) and (d)

[65] Mr Dean submitted that the consideration in s.387(b) of the Act as to whether the person was notified of “that reason” is a reference to a “valid reason” for dismissal in s.387(a) of the Act. The use of “that reason” stands in contrast to the language used in the other paragraphs of the section, particularly paragraph (c), which refers to the opportunity to respond to “any reason related to the capacity or conduct of the person”.

[66] I have held that there was a valid reason for dismissal, albeit not the one relied upon by the employer, being the use of unreasonable force. It follows that the applicant was not notified of the valid reason. However in my view ss.387(b) and (c) are intended to, collectively, provide an opportunity for an employee to respond to the reasons relied upon by the employer. It is implicit that an employer may not have, or may have but not articulate, a valid reason for dismissal at the time it occurs.

[67] The applicant was notified of the allegation that the respondent was relying on its decision to dismiss and was given the opportunity to respond to it. The failure of the respondent to provide the applicant with the names of witnesses and/or their statements was perhaps not ‘best practice’ but I am satisfied that the applicant was given sufficient detail to enable her to understand what was alleged and to respond appropriately.

[68] It is common ground that there was no refusal by the employer as specified in paragraph (d).

Unsatisfactory performance – s.387(e)

[69] This is not relevant.

Size of the employer’s enterprise and HR resources – ss.387(f) and (g)

[70] The employer employed 51 casual, part time and full time employees at the date of the applicant’s dismissal. It has no Human Resource specialists or expertise within the facility. While I have held that there was no significant denial of procedural fairness, the lack of HR resources is evident in the minimal detail obtained in relation to the incident. For example, there was no information sought or obtained from the witnesses in relation to their respective position, or where they were in relation to the applicant, EP and each other.

[71] Potentially of more significance, the applicant was given no opportunity to respond to the respondent’s decision to dismiss before it was implemented and therefore she was denied an opportunity to argue for a lesser sanction. I doubt there was anything that the applicant could have said that would have persuaded the respondent to implement a lesser penalty given the conclusion it reached and having regard to Mr Lutfi’s attitude to the conduct he believed had occurred. However, access to HR advice may well have broadened the respondent’s understanding of the disciplinary and investigation process.

[72] That the employer did not have any HR personnel or seek HR advice was a choice rather than a necessity and I would not be inclined to consider the employer’s size or its lack of resources as legitimate reasons for any deficiencies in the process it adopted.

Any other matters – s.387(g)

[73] The applicant was summarily dismissed for serious and wilful misconduct. Serious misconduct is defined in Regulation 1.07 the Fair Work Regulations 2009 as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”

[74] In the context of the incident, sub-regulations (1) and (2) make it clear that the misconduct must have the quality that it causes “serious and imminent risk to the health or safety of another person” and that it is “wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment.” The element of wilfulness has long been recognised as an essential ingredient in serious misconduct. 31 The applicant’s actions were wilful in the sense that throwing the wipes into the chair with some force was not accidental. However the wilfulness did not extend to any intent to place the resident at risk of injury. While the applicant’s actions had the potential to cause bruising and/or discomfort to the resident, her actions did not put EP at “serious and imminent risk” to her health and safety.

[75] I have also taken into account the unchallenged evidence that the applicant has no history of any similar incidents or indeed any warnings at all in relation to her care for residents.

[76] A dismissal may be unjust because the employee was not guilty of the alleged misconduct; unreasonable because the evidence or material before the employer did not support the conclusion; harsh on the employee due to the economic and personal consequences resulting from being dismissed; or harsh because the outcome is disproportionate to the gravity of the misconduct. 32 I conclude that the dismissal of the applicant was disproportionate to the gravity of her misconduct and was harsh.

Remedy

[77] The applicant has obtained alternative employment since her dismissal and does not seek reinstatement. I am satisfied that reinstatement would not be appropriate in the circumstances and that an amount of compensation should be awarded to her. 33

[78] The applicant was receiving $746 per week at the time of dismissal. 34 Mr Dean submitted that absent the dismissal, the applicant would have continued in employment for at least 12 months and probably longer. She had worked at the respondent’s facility for 13 years without incident in her role as Personal Carer. Given the likely extent of the applicant’s employment had she not been dismissed and the limited income she has received since dismissal,35 Mr Dean argued that she is entitled to the maximum compensation of six months pay.

[79] Mr Lutfi’s submissions on remedy were not helpful. As noted earlier, it was his view that any compensation awarded would be an “incentive payment” which would send the wrong message to employees and would place elderly residents at risk of abuse. 36

[80] Section 392 sets out the matters that the Commission is required to take into account in determining an amount of compensation:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $66,500 from 1 July 2014

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[81] A Full Bench of the Commission considered the method for calculating compensation under s.392 of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge. 37I have adopted this methodology.

s.393(2)(a)

[82] There was no information put forward by the employer in relation to the effect of any order on the viability of the employer’s enterprise.

s.392(2)(b)

[83] The length of the applicant’s service with the employer was approximately two years, although she had continuous service from 2001 when she commenced with the previous owners of the facility. The applicant’s service is not a factor which would indicate that the amount of compensation otherwise awarded should be reduced.

s.392(2)(c)

[84] Estimates of the anticipated period of employment had the dismissal not occurred by necessity involve a degree of speculation. Given the applicant’s employment history I consider that it is reasonable to assume that she would have continued in employment for at least 12 months. Based on her earnings at the date of dismissal, this is an amount of $38,792.

[85] The Commission is required to take into account the possibility of contingencies which might have brought about some change in earning capacity or earnings during the anticipated period of employment. There is no evidence concerning the relationship between the parties or the circumstances of the employer or the applicant that suggest the need to make any adjustment for contingencies.

s.392(2)(d)

[86] I am satisfied that the applicant made reasonable attempts to mitigate her loss, and obtained alternative employment within two to three weeks of her termination.

s.393(2)(e)

[87] As at the date of the hearing, the applicant had earned $7,574.11. The applicant stated that her current position is casual and she has been undertaking shifts to cover absences of employees who have now started to return to work. As such she is expecting her earnings to decrease and is looking for other employment. 38 No submissions were put in respect to the earnings between the date of the decision and the date of the order but I consider that an amount of $750 per fortnight is a suitable estimate of her earnings in this period.

s.393(2)(f)

[88] There will be a period of 21 days between the date of the order and the date of payment of compensation, and this period will also be calculated on the basis of $750 per fortnight.

s.392(2)(g)

[89] There are no other relevant matters to be taken into account under s.392(2)(g) of the Act.

[90] Section 392(3) requires the Commission to deduct an appropriate amount in the event that the person’s misconduct contributed to the dismissal. I am satisfied that the applicant did commit misconduct, albeit that it was not serious and wilful. Her actions were however unnecessary and ill considered and given the nature of the applicant’s role, a substantial deduction of 30% is appropriate for her contribution to the dismissal.

[91] The applicant’s earnings derived from her new employment up to and including the date that the compensation is paid, is estimated at $10,011.60. 39

The applicant’s earnings in the anticipated period of employment: $38,792.00

Less remuneration received: $10,011.61

Less deduction for misconduct $11,637.60

Total: $17,142.79

[92] As this amount does not exceed the compensation cap no further discount is required. An order for the above amount is issued with this decision.

Publication of the parties’ names

[93] It is often the case that decisions issued on applications dealt with via determinative conferences do not identify the names of the parties, but refer instead to “applicant v respondent”. Mr Dean made submissions on this point, arguing that:

• There was nothing within the Act that supported the automatic suppression of the parties’ names;



• The fact that determinative conferences were private proceedings was intended to support the less formal process adopted in a conference and that s.594 of the Act addresses issues of confidentiality and suppression of names;



• There is no conflict between the conference proceedings being private and the identification of the names of the parties in the decision; and



• It is in the interests of open justice that the names of the parties be published.




[94] Mr Lutfi did not wish to make submissions on this issue but indicated that he did not object to the publication of the parties’ names.

[95] Section 398 of the Act deals with conferences:

“398 Conferences

(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(a) considers the application; and

(b) informs itself in relation to the application.”

[96] Section 592(3) of the Act provides that certain conferences may be held in public if the Commission so directs, but this does not apply in relation to determinative conferences conducted under s.398 of the Act. Accordingly there is no discretion to conduct determinative conference proceedings in public.

[97] Hearings in relation to unfair dismissal applications are dealt with in s.399 of the Act as follows:

“399 Hearings

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”

[98] Provisions relating to confidentiality are set out in Section 594 of the Act:

“594 Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”

[99] The concept of open justice was recently discussed by Commissioner Bissett in dealing with an application by an employer for non-disclosure of the parties’ names in accordance with s.593 of the Act. 40 In the course of the decision the Commissioner considered the status of private conferences in the context of non-disclosure of the parties and made the following relevant observations:

“[15] That a conference is conducted in private does not mean that any ultimate decision involving the parties will have the parties de-identified. For example, an extension of time decision in relation to a general protections application involving a dismissal (s.365 of the Act) will not have the parties de-identified even though any subsequent conference conducted by the Commission will be conducted in private. That conferences are conducted in private is no reason, per se, to de-identify the parties.

[16] Whilst conferences are generally conducted in private this does not require, and it is not the practice, that there is no public identification of the parties to the matter. In fact, a perusal of the daily hearing list will indicate the names of parties to any number of matters that are to be dealt with by way of a private conference.”

[100] One of several passages cited by the Commissioner concerning the principle of open justice was taken from the decision of the New South Wales Industrial Relations Commission in Court session in Day v Sidmore and others (No 2), 41 as follows:

“31 The test we are obliged to apply provides that the Court may exercise its discretion to make any non-disclosure order if we are satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. The application of that test must be approached on the basis that the legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test.

32 …we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings “publicly and in open view”: Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]):

‘This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.’”

[101] By making a specific provision for private conferences in relation to unfair dismissal applications, Parliament has decided that there are considerations that outweigh the benefits of a public hearing. These considerations are reflected in ss.398(3) and (4) and s.399(1) of the Act which require the Commission to have regard to the views of the parties and the efficiency of the proceedings in resolving the matter. There are no provisions in the Act which state or imply that the conference proceedings are for the purposes of limiting public disclosure of the proceedings. On the contrary, s.601 of the Act relevantly provides:

“601 Writing and publication requirements for the FWC’s decisions

(1) The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other than this Part;

(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;

(c) a decision in relation to an appeal or review.

Note: For appeals and reviews, see sections 604 and 605.

(2) ...

...

(4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

(a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;

...

(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:

(a) a decision to issue, or refuse to issue, a certificate under section 369;

(c) a decision to issue an entry permit under section 512;

(d) a decision to impose conditions on an entry permit under section 515;

(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;

(f) a decision to issue, or refuse to issue, an affected member certificate under section 520;

(g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).

(6) Subsections (1) and (4) do not limit the FWC’s power to put decisions in writing or publish decisions.”

[102] It is my view that it does not follow that suppression of the parties’ identity should automatically be a feature of a decision following a determinative conference. The Act provides a separate process if a party seeks confidentiality of aspects of the decision, including the identity of the parties. There was no application under s.594 and no opposition to the publication of the parties’ names. The interests of open justice are served by the publication of the names of the parties.

DEPUTY PRESIDENT

Appearances:

Mr P Dean of United Voice for the Applicant

Mr S Lutfi for the Respondent

Hearing details:

2014.

Adelaide,

October 17.

 1   Letter of suspension dated 11 July 2014; Ex A9 Attach B.

 2   This was opposed by the applicant but I determined that fairness as and between the parties would be facilitated by a less formal proceeding.

 3   Ex A1.

 4   Ex R3.

 5   of Aged Care Quality and Compliance, Department of Health and Ageing, June 2008; Ex A4.

 6   Ex A7 Hospital discharge letter.

 7   Ex A9.

 8   Ex A9 paras 58-60

 9   At PN220.

 10   Ex R1.

 11   At PN519.

 12   At PN560.

 13   At PN617.

 14   Ex R2

 15   At PN827-8.

 16   At PN801.

 17   At PN772; PN789.

 18   At PN775.

 19   At PN850-2.

 20   Ex R3.

 21   PN989

 22   Ex A5 Serene Residential Care Services Reportable Incident form.

 23   Ex A8.

 24 (1938) 60 CLR 336.

 25   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 26   Rode v Burwood Mitsubishi (Unreported, AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471 at [19].

 27   At PN311.

 28   At PN527.

 29   PN532-540

 30   [2007] AIRCFB 797.

 31   See for example Laws v London Chronicle (Indicator Newspaper) Ltd, [1959] 2 All ER 285 at 288.

 32   Byrne v Australian Airlines Limited (1995) 185 CLR 410.

 33   Sections 390(3) of the Act.

 34   Form F3 Employer Response. The applicant provided no alternative figure.

 35   Ex A10 and Ex A11.

 36   At PN1114.

 37   [2013] FWCFB 431.

 38   At PN82-85.

 39   This includes actual earnings to the date of the conference and estimated earnings between the hearing and the date compensation is paid.

 40   Corfield [2014] FWC 4887.

 41 (2005) 149 IR 80.

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