Daniel Achouth v Hudson Hill Ltd T/A Assured Home Care

[2020] FWC 4464

[2020] FWC 4464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Achouth
v
Hudson Hill Ltd T/A Assured Home Care
(U2020/1263)

COMMISSIONER PLATT ADELAIDE, 25 AUGUST 2020

Application for relief from unfair dismissal – valid reason – not harsh, unjust or unreasonable – application dismissed.

[1] On 6 February 2020, Mr Daniel Achouth (Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Hudson Hill Ltd T/A Assured Home Care (the Respondent).

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

[4] There was no dispute that Mr Achouth was protected from unfair dismissal.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The material provided by the parties was compiled into a Digital Court Book for the purposes of the Determinative Conference.

[7] The uncontested factual background to the matter is as follows:

•  Mr Achouth was employed as a full-time Support Worker by the Respondent between July 2018 and 29 January 2022.

•  Mr Achouth did not hold the qualifications necessary to administer medication to persons in his care.

•  Mr Achouth’s responsibilities included the care of a patient, the name of whom I have anonymised as Ms F, who suffered from a medical condition which meant that the over-supply of fluids could result in serious (including fatal) medical consequences.

•  A written directive in respect of the supply of a maximum of 2000ml of fluids per day (500mls per six hour shift) and recording of fluids to Ms F had been issued on 27 November 2019. Mr Achouth had received and understood this directive.

•  On 24 January 2020, Mr Achouth worked between 6.00am and 12 noon in company with Ms Emma West. At about 7.20am Mr Achouth supplied Ms F with a 350ml cup of iced coffee. An incident occurred concerning the recording of the amount of fluid given to Ms F.

•  On 24 January 2020, the allegations about the incident were put to Mr Achouth in writing.

•  On 28 January 2020, Mr Achouth was interviewed in relation to the incident and his response to the allegations were received. Mr Achouth denied an allegation that he instructed Ms West to record a lesser amount of fluid than was provided to Ms F.

•  On 29 January 2020, Mr Achouth was dismissed by the Respondent.

The Determinative Conference

[8] There is a contest in respect of what occurred with respect to the recording of the fluid given to Ms F at 7.20am. The Respondent through its witness Ms West contends that at the time Mr Achouth supplied Ms F the 350ml cup of iced coffee, he advised Ms West to record that only 100ml of fluid had been provided to Ms F. Mr Achouth denied he gave Ms West this instruction.

[9] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

[10] After taking into account the fact that the Applicant and the Respondent were unrepresented and unexperienced in Commission processes, I determined it was appropriate to hold a Determinative Conference (s.399 of the Act).

Witnesses

[11] Mr Achouth submitted a statement 1 and gave evidence on his own behalf. His evidence relevant to the incident is summarised below:

•  Despite his casual characterisation, he worked full-time on a regular basis.

•  He was responsible for the domestic care of Ms F in conjunction with others, when he worked for the Respondent. Mr Achouth advised that Ms F could be a difficult, manipulative client and would request fluids despite the medical advice requiring fluid intake restrictions and the potential serious medical consequences.

•  On 24 January 2020, he worked between 6.00am and 12 noon and was caring for Ms F with Ms Emma West.

•  At about 7.20am on that day he made some homemade iced coffee for Ms F in a cup which was known to hold 350mls.

•  At the time he provided the cup containing 350mls to Ms F. He was aware that Ms F had had 1500mls of liquids in the previous 24 hour period which meant that after giving her 350ml there would be 150ml of the daily quota remaining.

•  Mr Achouth’s statement states “Upon providing the fluids to [Ms F], I recall Emma [West] witnessing me giving the fluids to [Ms F] in the 350ml plastic cup. Emma asked what amount of fluid was being provided to [Ms F] in which I told her that an amount of 350ml of fluid was being given and that on the following occasion only 150ml of fluid was to be provided.” 2

•  Mr Achouth did not resile from this position whilst giving evidence. Mr Achouth was adamant that he did not instruct Ms West to write a lower amount in the fluid chart. Mr Achouth denied the account given by Ms West. Mr Achouth advised that Ms F did not drink all of the drink and the balance was placed in the fridge and he then accompanied Ms F to the shop so she could purchase cigarettes.

•  Mr Achouth stated he was interviewed in relation to the allegation and given an opportunity to ‘argue his case’. At this meeting he denied that he instructed Ms West to write 100mls instead of 350mls.

•  Mr Achouth said he was aware of the policy in relation Ms F’s fluids and the importance of following it.

•  Mr Achouth was dismissed on 29 January 2020.

•  Mr Achouth has not found alternative employment.

•  The dismissal has had a significant adverse impact on him financially.

•  He had not been subject to any prior disciplinary processes.

•  He did not hold the qualifications to administer medication to clients including Ms F.

[12] Statements were submitted in respect of the following witnesses on behalf of the Respondent:

•  Ms Morgan Eddy (Accommodation Support Partner) 3

•  Ms Kay Macsween (Manager – People and Culture) 4

•  Ms Emma West (Community Support Worker) 5

[13] Ms Eddy’s relevant evidence is summarised as follows:

•  Ms Eddy was employed by the Respondent as an Accommodation Support Partner.

•  Ms Eddy advised that Ms F was a client of the Respondent who had multiple and complex health needs and was on a strict fluid regime as she had been frequently hospitalised for complications related to fluid retention. The medical advice was that Ms F was at risk of pulmonary overload which could be fatal if her fluid intake was not controlled.

•  Ms Eddy reinforced Ms F’s care requirements with workers responsible for her care including Mr Achouth in the period between August 2019 to January 2020.

•  In November 2019, Ms F was hospitalised with life threatening complications due to fluid retention and her medical team implemented a stricter fluid regime with a maximum of 2000ml per day and 500ml in six hour periods commencing at midnight each day. These instructions were contained in an instruction sent by email to persons including Mr Achouth on 27 November 2019.

•  Mr Achouth confirmed that he understood those instructions by email the same day.

•  Ms F had a fluid chart which staff were required to use when providing fluids to Ms F. The charts for the month of January 2020 were tendered.

•  On 24 January 2020, Ms West reported to Ms Eddy that Mr Achouth had given Ms F 350mls of fluid but asked her to write down only 100mls on Ms F’s daily fluid record.

•  Ms Eddy submitted details of the income earnt by Mr Achouth in the period 19 August 2019 to 12 January 2020. This data indicates that Mr Achouth earnt an average of $2617 per fortnight.

[14] Ms Macsween’s relevant evidence is summarised as follows:

•  Ms Macsween is the Respondent’s Manager People and Culture.

•  Mr Achouth was a casual employee and had been employed since 12 June 2018.

•  On 24 January 2020, she was informed about an incident concerning Mr Achouth, Ms West and Ms F, where Mr Achouth was accused of ignoring the instructions in respect of Ms F’s fluid recording regime.

•  On 24 January 2020, Ms Macsween contacted Mr Achouth by email advising him that he was being sent the allegations by email and that he was required to attend a meeting on 28 January 2020. The letter contained two allegations – one concerned the recording of fluid intake, the second related to an alleged improper request by Mr Achouth of Ms F. The letter advised Mr Achouth that he could bring a support person to the meeting and that the outcome of the meeting, subject to his responses, could involve disciplinary action up to and including dismissal.

•  Mr Achouth attended the meeting on his own. In respect of the fluid intake matter – he agreed that Ms F had been provided with 350mls of iced coffee but denied the allegation that he had instructed Ms West to only record 100mls. He contended that Ms F had drunk about half of the liquid and the remainder was put in the fridge while he accompanied her to purchase some cigarettes.

•  Ms Macsween considered the matter and preferred the account provided by Ms West over that of Mr Achouth.

•  The second allegation (concerning an alleged improper request of Ms F) was found to be unsubstantiated.

•  Ms Macsween determined that Mr Achouth’s conduct in respect of the fluid recording presented a serious risk to Ms F and was a reportable incident under the Respondent’s NDIS obligations.

•  Ms Macsween recommended that Mr Achouth be dismissed. This position was approved by the CEO and Mr Achouth was advised of his dismissal by letter on 29 January 2020. The letter stated that Mr Achouth’s conduct was wilful or deliberate behaviour inconsistent with the continuation of employment, caused a serious risk to the health and safety of Ms F, and caused a serious risk to the reputation of the Respondent.

•  Mr Achouth was dismissed summarily. No notice was paid on account of the casual characterisation of Mr Achouth’s employment.

[15] Ms West’s relevant evidence is summarised as follows:

•  Ms West has been employed by the Respondent as a Community Support Worker for about 4 years and had worked with Mr Achouth over a 9 month period.

•  Ms West enjoyed working with Mr Achouth and got along well with him but had on several occasions spoken to/coached Mr Achouth about the correct administration and recording of fluids to Ms F.

•  Ms F got along well with Mr Achouth and had a preference for him making iced coffees.

•  Mr Achouth made the iced coffee on 24 January 2020 and gave it to Ms F, Ms West was in an adjacent area where the fluid chart was kept. Ms West saw the cup. Mr Achouth asked Ms West to record it as 100mls. Ms West questioned that the amount did not correlate to the size of the drink provided and entered the correct amount.

•  The cups used to administer fluid were easily identifiable, and therefore she knew the amount of iced coffee that had been prepared was 350ml.

•  It was not unusual for one person to provide the fluids to Ms F and for the other to record it on the fluid chart.

•  Ms West gave evidence that it was not a matter for a Community Support Worker to prevent Ms F from consuming fluids, however it was imperative that the amount be recorded on the fluids chart as this was reviewed by Ms F’s medical advisors. Ms West gave an example that if when purchasing cigarettes, Ms F purchased a Coke, it was not for them to take the Coke from her, however, they were required to record the amount of fluid available to her (as opposed to fluid consumed).

•  Ms West approached Ms F and took the cup from her, placing it in the fridge to be consumed later.

•  Ms West placed more importance on recording the accurate amount of fluid than going over the daily limit, even though it was accepted that this was dangerous it may sometimes be outside the Support Workers control, which was an exception. This was contrasted to Mr Achouth’s conduct in that he had asked her to dishonestly record a lower amount.

•  Ms West raised the issue with her supervisor as she was concerned that her previous coaching was having no effect and the risk of harm to Ms F. Ms West’s supervisor Ms Eddy telephoned her in relation to another matter, during the telephone conversation Ms West notified Ms Eddy of what had occurred and suggested that Mr Achouth be offered some more training. Ms West stressed on a number of occasions during her evidence that it was not her intention for any disciplinary action to be taken and that she never expected Mr Achouth to be dismissed.

Submissions

[16] Mr Achouth contends that he did not act in the manner alleged by the Respondent and denies being dishonest in his account of what occurred.

[17] There was no issue taken with the investigation process.

[18] He contends that the dismissal was not proportionate to the alleged conduct, and that the impact of the dismissal on him was severe and thus the dismissal was harsh, unjust or unreasonable.

[19] The Respondent contends that Mr Achouth was dishonest in requesting that Ms West understate the amount of fluids provided to Ms F, was dishonest in denying the conduct at the interview and that they had lost trust and confidence in him being able to properly fulfil his duties. The Respondent contends that Mr Achouth’s limited skills (in that he could not administer medication) meant that his future employment would be limited.

Consideration

Has the Applicant been dismissed?

[20] There was no dispute and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.

[21] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act.

Initial matters

[22] It was not contended by the Respondent that Mr Achouth was not protected from unfair dismissal, or that the dismissal was consistent with the Small Business Fair Dismissal Code or that the dismissal was a case of genuine redundancy.

[23] Whilst Mr Achouth was employed on a casual basis, it was not submitted that he had not met the minimum employment period, and on the information before me I find that Mr Achouth was employed on a regular and systematic basis for more than 6 months and the Respondent is not a small business.

[24] I am satisfied that, at the time of dismissal, Mr Achouth had completed the minimum employment period.

[25] Mr Achouth’s earnings did not exceed the high income threshold under the Act.

[26] I am satisfied that, at the time of dismissal, Mr Achouth was a person protected from unfair dismissal.

[27] I am satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.

[28] There was no contention that Mr Achouth’s dismissal was a case of genuine redundancy

[29] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[30] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[31] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 6

[32] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[33] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 7 and should not be “capricious, fanciful, spiteful or prejudiced.”8 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.9

[34] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 10 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”11

[35] The central allegation is the subject of two competing accounts of what occurred on 24 January 2020 presented by Mr Achouth and Ms West.

[36] I had the benefit of observing Mr Achouth and Ms West give their evidence by video conference.

[37] I note Mr Achouth’s statement and submissions were well constructed and in preparing the same he did not appear to have the difficulties observed in the delivery of his oral evidence. In making my decision I have made allowances for the fact that Mr Achouth had difficulties expressing himself verbally.

[38] Mr Achouth’s evidence was largely restricted to the confines of the events that occurred around 24 January 2020.

[39] By contrast Ms West gave a much fuller account, detailing Ms F’s preference for iced coffees made by Mr Achouth and that it was unusual for Ms F to be provided a 350ml sized drink in order to ensure she did not receive more than 500mls over a six hour period.

[40] Mr Achouth’s evidence did not countenance the possibility of a miscommunication between himself and Ms West. Mr Achouth did not provide any explanation as to why the 350ml quantity was provided and I gained the impression that he may have not seen it as an issue. The fact that he returned some of the amount given to the fridge after Ms F did not consume it indicates it was an unusually large amount.

[41] I was provided with the fluid charts for Ms F which covered a 14 day period including 24 January 2020. In this period the average number of drinks per day provided to Ms F was 12.7 with a minimum of 11 and a maximum of 16. In terms of the individual quantities provided, the most common size ranged between 100mls and 200mls. On four occasions a 250ml drink was provided. The largest drink provided was the 350ml iced coffee given by Mr Achouth on 24 January 2020.

[42] In her evidence, Ms West contended that the 350ml drink was a large portion of Ms F’s allotted fluids in a single portion. The evidence bears this out. Ms West suggested that whilst providing the 350mls posed some health risk to Ms F, not accurately recording it posed a greater risk and that it was the responsibility of the Support Worker to accurately record the amount provided, noting that on occasions it may be out of the Support Workers control if Ms F consumes fluids on her own accord (which was not uncommon in Summer).

[43] There was no dispute that Ms F was a difficult person to manage. I accept that Ms F was focused on obtaining fluids to the point of drinking some of the water she washed in. I accept that she would seek to manipulate her carers’ to achieve her goal of obtaining fluids and if not appeased she would become more difficult to manage, on occasions violent.

[44] Ms West postulated that in Mr Achouth seeking that she enter a lower amount than the 350mls provided, was giving himself headroom to appease Ms F later in the shift if she requested more fluids. Mr Achouth denied such a motivation. If Mr Achouth was taking this approach, then the prospect of Ms F being given fluids in excess of the limit was a real possibility.

[45] Mr Achouth was unable to articulate any plausible reason why Ms West would be motivated to give false testimony. I note that Ms West did not intend or support the Respondent’s decision to dismiss and had nothing to gain on a personal level. Ms West displayed sympathy towards Mr Achouth whilst giving evidence – this appears inconsistent with a person who on Mr Achouth’s account gave false testimony to secure a dismissal.

[46] Ms West was considered and she was prepared to make concessions during her evidence.

[47] I found Ms West’s evidence more persuasive than that given by Mr Achouth and have determined to prefer her evidence where it conflicts with that given by Mr Achouth.

Findings

[48] I find that:

•  Mr Achouth was aware of the direction by the Respondent on 27 November 2019 which restricted Ms F’s fluid intake to 2000mls in a day, with 500mls allocated to each six hour period.

•  Ms West had spoken to Mr Achouth about the need to comply with the direction in respect to Ms F’s fluids and the associated fluid charts prior to 24 January 2020.

•  On 24 January 2020, at about 7.20am Mr Achouth instructed Ms West to write a lower amount of fluid in the chart than he provided to Ms F, and this was knowingly in breach of the Respondent’s directive distributed in November 2019.

•  Mr Achouth’s denials in the investigation phase was inconsistent with the conduct I have found.

•  Mr Achouth’s conduct increased the risk that Ms F may be provided with fluids in excess of that permitted, which could have had serious medical consequences for her.

•  I accept that as a result of Mr Achouth’s conduct the Respondent had a reasonable basis to have lost its trust and confidence in Mr Achouth to perform his duties.

•  Mr Achouth continued to deny any wrongdoing during the investigation and at the hearing – this conduct has fatally wounded the employment relationship.

[49] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct.

Was the Applicant notified of the valid reason?

[50] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 12

[51] Mr Achouth was notified of the allegations in writing on 24 January 2020 and was given an opportunity to respond on 28 January 2020.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[52] Mr Achouth was invited to bring a support person to the meeting on 28 January 2020. No request was made.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[53] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[54] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[55] Neither party submitted that the absence of dedicated human resources management specialists or expertise was likely to impact on the procedures followed in effecting the dismissal.

What other matters are relevant?

[56] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[57] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:

•  A review of the fluids charts for Ms F indicates that there may have been breaches of the November 2019 requirements by other persons in the Respondent’s employ. I accept that none of these breaches involved dishonesty and that it was consistent with the practice that should Ms F consume fluids outside of the Support Workers control, that the amount be recorded regardless of any potential breach of the 2000ml restriction.

•  Mr Achouth had not been the subject of any prior disciplinary action.

•  I accept that Mr Achouth was the breadwinner for his large family and the dismissal and his inability to secure alternative employment has caused significant financial distress.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[58] I have made findings in relation to each matter specified in s.387 of the Act as relevant.

[59] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 13

[60] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

Conclusion

[61] I am satisfied that the Applicant was not unfairly dismissed within the meaning of s.385 of the Act. As such, Mr Achouth’s unfair dismissal application is dismissed.

[62] An Order 14 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

Mr D Achouth on his own behalf.

Ms K Macsween on behalf of the Respondent.

Hearing details:

2020.
Adelaide:
August 6.

Printed by authority of the Commonwealth Government Printer

<PR722093>

 1   Exhibit A1

 2   Exhibit A1, [16]

 3   Exhibit R2

 4   Exhibit R1

 5   Exhibit R3

 6   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

 7   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 8   Ibid

 9   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685

 10   Edwards v Justice Giudice [1999] FCA 1836, [7]

 11   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]

 12   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

 13   Exhibit A1

 14   PR722094