Cassar v Phoenix Lodge

[1997] IRCA 179

DECISION NO:179/97

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
whether TERMINATION at the INITIATIVE OF EMPLOYER - whether RESIGNATION voluntary - VALID REASON - PERFORMANCE - failure to report injury and incident - failure to maintain proper supervision - whether OPPORTUNITY TO RESPOND -

Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA

CASSAR -V- PHOENIX LODGE
VI 1568 of 1995

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          11  JUNE  1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1568 of 1995

B E T W E E N:

Kathleen June CASSAR
Applicant

A N D

PHOENIX LODGE
Respondent

MINUTES OF ORDERS

11  JUNE  1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The application made pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court            Rules

IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1568 of 1995

B E T W E E N:

Kathleen June CASSAR
Applicant

A N D

PHOENIX LODGE
Respondent

REASONS FOR DECISION

11  JUNE  1997  PARKINSON JR

This is an application made pursuant to Section l70EA of the Workplace Relations Act 1996.(‘the Act’)  The applicant was employed  by the respondent at its nursing home at Talbot in Country Victoria.  She was employed as an aged care attendant for a period of 7 months, between June, 1994 and January 27, 1995.  The respondent provided residential care facilities to elderly people. 

The respondent bears the burden of establishing in proceedings of this type that it had valid reason for the termination of the applicant’s employment.  Neither party was represented in this proceeding. I am satisfied that despite the respondent contending that the applicant resigned, such resignation, was brought about by the conduct of the respondent, arising from its complaints as to the applicant’s work performance, and that the applicant did not leave the employment voluntarily. 

The evidence of the respondent is that on 22nd January, 1995 the respondent’s manager, Ms Csapo, was approached by a resident of the centre at approximately 8.00 a.m.  The resident was complaining about having been assaulted and that he was injured.  Ms Csapo’s evidence was that she observed that the resident had facial bruising.  She was later to establish, as a result of advice from another staff member, that he had other bruising on various parts of his body.  The applicant was present in the course of the complaint being made.  The respondent says that she observed the bruise on the resident and was made aware of the nature of the complaint being made by the resident as to having been assaulted.  The respondent’s complaint in the proceeding is two fold.  First, that the incident was able to occur on the evening of the applicant’s night shift, indicating a lack of proper and adequate supervision on the part of the applicant.  Second, the respondent contends that the applicant did know of the incident and had an obligation to report the injury and incident and that she did not.  No report of any incident had been made and there was no record of any incident noted in the relevant books for recording any falls or injuries or other incidents occurring during the course of the night shift on 21 to 22 January. 

Ms Csapo’s evidence was that she arranged for medical treatment for the resident and having contacted the health department, took photographs of the resident to record the observable bruising.  Her evidence was that she took the photographs on Tuesday 23 January, 1995.  The photographs, which are Exhibit R1, identify extensive bruising to the applicant. 

The applicant  denies that she was aware of any incident or injury occurring in the course of her night shift.  She denies that any incident occurred at all.  She also says that on the following morning, when the resident reported the incident to Ms Csapo, that she only vaguely understood the nature of the complaint being made and that she did not observe any bruising on the residents face at all.  Her evidence was that she did not enquire further of the resident with a view to clarifying his complaint on that morning because she was in a hurry due to it being her usual habit to travel to a nearby town on that day. 

I accept the evidence of the Ms Csapo that the complaint as to injury was received from the resident at 8.00 a.m. on 22 January, 1995 and that the resident was injured.  I accept that it was reasonable for the respondent to conclude that the injury had occurred on the previous evening of 21 January or in the early hours of 22 January, during the course of the applicant’s shift.  I accept Ms Csapo’s evidence that the applicant did observe the bruising to the residents face on the morning of 22 January.

I do not accept the applicant’s evidence that the injuries may have occurred after she had left the premises on Monday 22 January and may have been caused by another staff member or another resident.  This is most improbable, given that, even on the applicant’s evidence, the complaint of the injury had already been made at 8.00 a.m. on 22 January, before she had left the premises. 

The respondent is entitled to take steps to protect the interests of a person in its care and this includes the investigation of and taking of reasonable action in circumstances where it considers that the supervision of the residents has not been adequate. The principal duty of the applicant as the person in charge on the night shift, is to ensure the security and safety of the residents and to maintain full and adequate supervision of the residents during the course of the evening. 

There is no evidence from the applicant which adequately explains how it could be that such extensive bruising could be incurred by an elderly resident and that a staff member in charge on night duty would have no knowledge of or hear any noise or activity which might explain the injury. Nor was any such explanation given to the respondent, when Ms Csapo called the applicant into work seeking an explanation as to the events on 21 and 22 January. 

I am satisfied that the respondent had valid reason for the termination of the applicant’s employment. That reason was based upon the applicant’s work performance and in particular her failure to maintain proper supervision of the residents in her care during the night shift. Further I am satisfied that the applicant displayed no concern to establish the cause of the injury to the resident on the morning of 22 January, when the injuries became known. This apparent lack of concern and interest, together with the lack of knowledge of the applicant as to events which occurred in the centre on the previous evening entitled the respondent to be seriously concerned as to the applicant’s capacity to undertake the duties and responsibilities of the position. I am satisfied that the respondent in terminating the applicant’s employment has not contravened s170DE(1) of the Act.

On Thursday 25 January, Ms Csapo telephoned the applicant and asked her to attend at the workplace to discuss the events of the evening of 21 January and the injuries to the resident and the applicant’s supervision that evening. The applicant attended that meeting and in view of there being no adequate explanation she was ‘ invited’ by Ms Csapo to resign. This is the conduct on the part of the respondent which I have earlier discussed in the context of the jurisdiction of the court. I am satisfied that the applicant was given adequate opportunity to discuss the allegations and to respond. The applicant’s employment was not terminated in contravention of s170DC of the Act.

For the reasons set out herein the application is dismissed.

I certify that this and the preceding two (2) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :          

Dated             :          11  June  1997

APPEARANCES

The applicant in person

Ms. Csapo, Manager of the respondent, and
Ms. Nesci, Director of the respondent, appeared in person.

Date of hearing  :          10  June  1997