David Pomare v Omnicare Alliance Ltd - [2024] FWC 2709

[2024] FWC 2709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

David Pomare
v

Omnicare Alliance Ltd

(U2023/13153)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 SEPTEMBER 2024

Application for relief from unfair dismissal – dismissal was not harsh, unjust and unreasonable

On 28 December 2023, Mr David Pomare made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Omnicare Alliance Ltd (Omnicare).

Omnicare provides services to people with disability on the mid-north coast of New South Wales. Mr Pomare was employed by Omnicare on a permanent basis from 1 July 2018 until he was dismissed on 11 December 2023.

In summary, I have found that there was no valid reason for the dismissal, but that Mr Pomare did not establish that the dismissal was unfair. Based on these findings, I have determined that Mr Pomare’s dismissal was not harsh, unjust and unreasonable.

Directions and determinative conference

The matter was listed for a case management conference before Deputy President Saunders on 22 February 2024 and directions were made for the filing and serving of evidence and submissions. The matter was listed for determinative conference/hearing via Microsoft Teams on 18 and 19 April 2024. On 18 March 2024, Mr Pomare filed material and on 5 April 2024, Omnicare filed material.

The matter was reallocated to me. At the commencement of the determinative conference/hearing on 18 April 2024, the parties agreed to participate in conciliation and the matter was settled in principle. On 1 May 2024, Omnicare advised the Commission that Mr Pomare had rejected the settlement proposal. The matter was then listed for a case management conference before me on 10 May 2024. After hearing from the parties, the matter was set down for a determinative conference on 24 May 2024. Mr Pomare and Omnicare each represented themselves at the conference.

Conduct of the Proceedings

The way in which the proceedings were conducted by the parties was unsatisfactory and did not assist the Commission in its determination of the matter. When Directions were issued on 22 February 2024, the parties were referred to a section of the Commission’s website which provides information about preparing for unfair dismissal hearings and conferences. The website includes templates that parties can use to present witness statements, document lists and outlines of argument.

It is clear from the material filed that neither party viewed the website or the templates. Mr Pomare provided a letter which generally denied any wrongdoing, and a character reference from people who I describe in this Decision as ‘Mr and Mrs F’. Mr Pomare did not file any material which explained his response to each of the allegations which led to his dismissal. Mr Pomare did not engage with any of the criteria in s 387 of the FW Act which the Commission is required to consider when determining whether a dismissal is unfair. The only material filed in the proceedings that contained Mr Pomare’s version of events were transcripts of interviews which Mr Pomare had with the person who was engaged to investigate the matter. These transcripts were filed by Omnicare. It appears that Mr Pomare also provided Omnicare with written responses to allegations during the investigation which led to his dismissal, but these were not provided to the Commission by either Mr Pomare or Omnicare.

Similarly, the material filed by Omnicare was inadequate. It comprised of six separate emails (some of which were sent to my Chambers more than once) which between them had around 25 PDF attachments. None of these emails explained or described the documents that were attached. Some attachments contained multiple documents. There was no index. There was a single seven page witness statement from Ms Kath Murphy, Head of People and Culture. The paragraphs in this statement were not numbered. The statement referred to documents in very general terms and some documents which were said to be provided were not. For example, the statement concluded by stating, ‘I have provided a copy of Mr Pomare’s termination letter, transcripts from meetings held with Mr Pomare and copies of notes from the Communications Diary that was in [CD’s] home.’ However, the copies of notes from the Communications Diary were not provided.

Many of the documents that were provided were not clean copies but appeared to have been annotated by Ms Murphy with comments about Mr Pomare’s conduct. Apart from making it difficult for the Commission to review the documents, it is concerning if this was the way that the documents were provided to the independent investigator who investigated the allegations which led to Mr Pomare’s dismissal. Such documents should have been provided to the investigator without commentary from Omnicare, so he could form his own independent view about the allegations. The commentary on the documents extended to the policies and procedures relied upon by Omnicare. Clean copies of these documents were not provided to the Commission and the documents were not on letterhead and did not have a company logo, so the Commission had no way of verifying whether these documents reflected the policies and procedure which applied to Mr Pomare.

The documents provided by Omnicare also included an Investigation Report in relation to the allegations which led to the dismissal of Mr Pomare and some (but not all) of the transcripts of interviews of witnesses that were referred to in the Investigation Report. The Commission therefore did not have all of the evidence that was before the investigator. The Commission compiled all of the material filed by the parties into a Digital Court Book and provided this to the parties to assist them during the hearing. In addition to Ms Murphy’s statement, the only material which Omnicare tendered during the hearing were transcripts of evidence from the following people:

Mr Chris Johnson, Head of Care
Ms Carolyn Jones, Planning Coordinator
Ms Hannah Barratt, People, Culture & Quality Coordinator
Mr Andrew Ware, Support Worker

Consequently, the Commission had an incomplete picture of the evidence which Omnicare relied upon to terminate Mr Pomare. Given the consequences of the dismissal for Mr Pomare, this was very concerning. There is also no reason as to why everyone who participated in the investigation could not have given evidence at the hearing. The investigator informed each participant that their evidence might be used in later proceedings including unfair dismissal proceedings, so each participant was aware of this. Further, it was open to Omnicare to request that Orders to Attend the unfair dismissal proceedings be issued to all persons who participated in the investigation, but this did not occur.

Factual Background

Mr Pomare has been a Support Worker for people with disability since 1983. Mr Pomare was employed by Omnicare as a Support Worker from 1 July 2018 when Omnicare acquired the business of Headway, Mr Pomare’s previous employer. At the time of his dismissal, Mr Pomare was the Key Worker for a client who is referred to in this decision as CD. CD was a client of Headway prior to its acquisition by Omnicare. CD has an acquired brain injury (ABI), cannot walk and is wheelchair bound.[1] CD lives in a Community Housing owned unit. Due to his ABI, CD requires assistance with most aspects of day-to-day life, including toileting, showering, dressing, medication, health management, mobility and transfers from his wheelchair to his bed and his car. CD also requires assistance with communication.[2]

CD’s condition necessitates 24-hour in-home support from a group of support workers (including Mr Pomare prior to his dismissal) to assist him to live independently. CD’s care provision is funded under the National Disability Insurance Scheme (NDIS). CD’s NDIS plan is currently managed by an organisation called ‘Planning Partners’. CD claims part of his funding to pay a provider to coordinate his support, known as a Coordinator of Supports (COS). Omnicare took over responsibility as COS for CD in or around January 2022. Prior to that time, those functions were being performed by another organisation and Omnicare’s role was solely to provide Support Workers in CD’s home.[3]

CD has had a Power of Attorney and Enduring Guardianship arrangement in place for many years. Until late 2021, that role was performed by CD’s brother. However, there were issues and concerns around the management of CD’s finances, so CD requested that those responsibilities be removed from his brother and that long terms friends of his mother be appointed instead. To protect CD’s privacy, I have referred to these friends as ‘Mr F’ and ‘Mrs F’ in this decision.[4]

An Advocate from Disability Advocacy was engaged and Omnicare staff, in particular Mr Pomare and Ms Kathy Wonderley, who at that time was the Head of Care, assisted Mr and Mrs F through this process. This initially led to Mr and Mrs F being granted a Financial Management order for CD before they were formally appointed CD’s Power of Attorney and Enduring Guardians on or about 7 July 2022.[5]

Mr and Mrs F play an active role in CD’s life. They speak with him by phone regularly and CD visits them at their property each month. These visits are facilitated by Omnicare staff, almost solely Mr Pomare, as Mr and Mrs F are elderly and have their own health issues which makes travel difficult. Mr and Mrs F set a weekly budget for CD and Mrs F has online access to CD’s bank account to acquit weekly expenditure. They play an active role in the management of CD’s NDIS funding and expenditure under it. Mr Pomare was their key contact regarding all financial matters.[6]

Mr Pomare initially provided support to CD when Mr Pomare was employed by Headway. Soon after the acquisition of Headway by Omnicare, the then Key Support Worker for CD was removed from his home and Mr Pomare stepped into that role.[7] The primary function of the Key Support Worker role is to be the central liaison point for Omnicare within a client’s home, assisting the COS and/or Planning Coordinator with the delivery of services to the client under the client’s NDIS plan. The role is not that of a Team Leader and it is not intended that it have any managerial or supervisory responsibilities.[8]

When CD was initially supported by Omnicare, his planning coordinator was Ms Colleen Turnbull, then subsequently Ms KathyWonderley. Both Ms Turnbull and Ms Wonderley were interviewed as part of the investigation in relation to Mr Pomare but their transcripts of evidence were not provided to the Commission and they were not called to give evidence.

Ms Carolyn Jones is currently CD’s planning coordinator. For some clients, including CD, she is the COS which involves controlling or overseeing the funds on the clients’ plans and making sure that the services and supports that a client needs are put in place, by Omnicare or other organisations. This may involve liaising with support workers to let them know what supports might need to be put in place for Omnicare clients. Ms Jones said that Mr Pomare had been in his role for such a long time and taken responsibility for the care of CD that no one was ever actually sure what the processes were. Mr Pomare took responsibility; he knew what the budgets were, and he knew the expectations of the guardians. He liaised with the guardians and knew their expectations. Ms Jones said that she did not know for sure, but she assumed that if there were any issues that Mr and Mrs F were concerned about, they went to David and said, ‘Hey what was this spend for?’[9]

Ms Jones reports to Chris Johnson who is the Head of Care.[10] Mr Johnson has been the Head of Care since the beginning of July 2023. He reports directly to the Chief Executive. In the transcript of his interview provided to the Commission, Mr Johnson explained that his main responsibility was overseeing the delivery of services in home based care as well as the NDIS, and overseeing the centre based respite. He explained that his role takes on the role as a lead clinician to provide guidance to other clinicians. In relation to his relationship with the key workers, Mr Johnson explained that he does not have a direct line with the support workers and ‘that's done through people and culture.’ Mr Johnson said his direct reports are the coordinators of the services that Omnicare provides, whether that be in home care or disability supports.[11]

In describing Mr Pomare’s role with Omnicare, Mr Johnson said that Mr Pomare is a support worker who provides day-to-day coordination of the house that CD lives and ensures that the day-to-day care of CD is occurring. Mr Pomare was allocated as a key support worker, although there was no formal position description in place that says what a key support worker was. Mr Johnson said that a written position description had been discovered, but it was not ratified by anybody and that he is not sure who wrote it.[12] Mr Johnson said that Mr Pomare is not the coordinator, and that he ensures that the things that CD requires are ticked off on a day-to-day basis, whether that be personal care, medications and so on. Mr Johnson said that Mr Pomare took on the role of communicating directly with the clinical team, whether it be the GP or the specialist, but that was never supposed to be in his role and that the coordinator of supports, being Ms Smith, is the person ultimately responsible for coordinating this. Mr Johnson explained that Mr Pomare’s function was essentially to make sure that CD is receiving the care that was planned for him and to report any deviations from that on a daily basis and what is actually happening within the household.[13]

Mr Johnson explained that the NDIS planning process involved the NDIS discussing with CD, or his power of attorneys or guardians, what his needs are and what his goals are. The NDIS then bases CD’s funding around this and then that funding is divided into different components, whether it's core support or capacity building. The idea of having a coordinator is to work out how CD’s requirements can be accommodated within his NDIS budget and find services that can meet those requirements. Omnicare currently provides 24-hour a day care but there are other services that Omnicare does not provide, like occupational therapy involvement and assistive technology like wheelchairs, but it coordinates those services.[14]

When asked about who in responsible for maintaining records about medications, Mr Johnson said:

So, we always get a health report from the GP. We have that in the document and in the care plan, not the actual medication per se, but the fact that he requires medication that's packaged by a local pharmacist into a Webster pack and again, it's that prompting. The person who's responsible to ensure that he's got his medication is the coordinator, so we would expect a support worker to say he's on to his last Webster pack. The coordinator would then contact the pharmacy, order the new one if they've got repeats, otherwise organise him to get to the GP for the consult. The breakdown there is that the whole medication side of things was not being clearly communicated and I'm willing to say that the coordinator probably dropped the ball by not keeping on top of those things. However, there was a lack of communication when a medication, for example, was added or changed, there was no clear communication from whichever support worker was with [CD] at the time. Now, I’m going to say to you, the only person who went with [CD] to the doctor was David. And David wasn't documenting when that was occurring except in a diary which was kept at the house. He wasn't keeping notes in our and our patient record system, our client record system. He wasn't keeping accurate notes as to when. It was almost like he was keeping in control, even to the point that he was insisting on being the only support worker to go with [CD], even if he was on days off. And he's got that documented in the diary as a directive. Now, David has no jurisdiction to direct any support worker. He's there to guide them and not to tell them how to do their job because they are qualified support workers.[15]

Mr Johnson also said:

I think the one theme that I found was that the staff weren't providing consistent care that reassured me that [CD] was receiving the best care he should receive. I don't have a concern about lack of care. He certainly was receiving care, but it could have been done in a better way that made me feel reassured that [CD] was safe. And what what's happening is that lack of communication does not lead to safe care because there were oversights such as medication being missed.[16]….where Omnicare failed was that we weren't reviewing the household notes on a regular basis[17]….. I’m currently reviewing not just CD's household but all of the clinical components of the care that we provide as an organisation. And there are some deficits in how we document what we do. We rely on our support workers to be open and honest and document clearly what it is they did or didn't do. There's no guarantee that what's documented is actually what happened. We can't prove or disprove that, but that's the nature of this business, that you've got people working independently of supervisors.[18]

Ms Kath Murphy is the Head of People, Culture, and Quality. Ms Murphy explained that she began her professional relationship with Omnicare in January 2023 through her Human Resources Consulting business. On 23 May 2023, Ms Murphy commenced consulting ﬁve days per week to complete project work and to support Omnicare’s People and Culture Coordinator.

On 1 June 2023, Ms Murphy became aware of Mr Pomare for the ﬁrst time when a written formal complaint was received from an employee in relation to an alleged bullying and harassment incident. The substance of this complaint is dealt with later in this Decision where I describe the eighth allegation against Mr Pomare which led to his dismissal.

On 3 July 2023 Ms Murphy commenced full time employment with Omnicare as the Head of People, Culture and Quality.

Ms Murphy says that she initially became concerned in relation to Mr Pomare’s behaviour when she was asked to contact one of CD’s support workers, Ms Vanessa McLean, who Ms Murphy said had lost shifts due to changes in the Award in mid-July. Mr Pomare had contacted the roster team to let them know that Ms McLean was extremely upset and that a welfare check was required. In response, Ms Murphy called Ms McLean.

Prior to contacting Ms McLean, Ms Murphy spoke with Ms Jones to obtain further information surrounding the change in rosters and how the shifts had been allocated. Ms Jones advised that Mr Pomare had discussed the shifts with her and directed her to take Ms McLean’s Monday shift off her as he needed both Monday shifts for administration. Ms Murphy said that on discussion with Ms McLean, it became apparent that Mr Pomare had told Ms McLean that shifts had been taken off her by Ms Jones as a reaction to Ms McLean having time off to care for her sick child. Ms McLean was extremely upset as she explained that Mr Pomare had promised her a certain number of hours each week, that he was training her to be the next ‘Key Worker’ in CD’s home. Ms McLean advised she could not afford to pay her mortgage if she did not get enough shifts and that Mr Pomare had advised her that Ms Jones was discriminating against her due to her sick child.

The events which led to Mr Pomare’s dismissal commenced when Mr Andrew Ware, one of CD’s Support Workers submitted two reports on 16 July 2023 about incidents regarding CD’s care under Mr Pomare. Those reports were submitted to Ms Jones.[19]

The reports included an incident where Mr Ware had been present when CD had a medical episode and was taken to hospital in an ambulance. On the night of the incident, Mr Ware contacted Mr Pomare to ask if a puffer belonged to CD when CD was beginning to show signs of his Chronic Obstructive Pulmonary Disease. Mr Pomare advised Mr Ware that the puffer did not belong to CD and must have been brought into the home by another support worker. The morning after CD had been taken to hospital, Mr Pomare came into Omnicare Head Ofﬁce and advised Ms Jones that he had known all about the puffer and was unsure why it had not been used.

These reports led Omnicare to commence an internal investigation then to engage Markus Lutz, Managing Director of Lighthouse Investigations to conduct an independent fact-finding investigation on 5 September 2023 into concerns about the conduct and performance of Mr Pomare.[20] For reasons that were not explained to the Commission, Mr Lutz did not investigate the incident which led to CD’s hospitalisation.

Mr Lutz’s Investigation Report was completed on 6 November 2023. On 8 November 2023, Omnicare sent a letter to Mr Pomare advising that Mr Lutz’s investigation had substantiated ten allegations against Mr Pomare. The letter also advised Mr Pomare that Omnicare had reached a preliminary decision that Mr Pomare’s employment should cease and invited Mr Pomare to attend a meeting to discuss the allegations, provide his responses to them and respond to the preliminary decision that his employment be terminated.[21] Mr Pomare subsequently attended a meeting on 27 November 2023 with Ms Murphy and Ms Andrea Caldwell, Chief Executive Officer.[22] Following that meeting, Mr Pomare’s employment was summarily terminated on the grounds of serious misconduct on 11 December 2023.

In her Statement, Ms Murphy noted that Mr Pomare alleges that he had ‘never been reprimanded’ during his role within CD’s home. In response, Ms Murphy states, ‘Please refer to ﬁle notes, emails etc included in this submission which directly contradicts this statement.’ In many cases, the authors of these file notes and emails did not give evidence before the Commission. Further Ms Murphy notes that:

Although there is a deﬁnite trail of evidence and a clear pattern of behaviour within emails and ﬁle notes saved in Mr Pomare’s personnel ﬁle of conversations had with Mr Pomare and his supervisors, no formal letter of warning was provided. There had been a number of staff changes, role changes etc within Omincare and it appeared to me that a lot of Mr Pomare’s continued behaviour had not been properly addressed due to changes in management. In addition, there was no designated HR Department until
December 2021.

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

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

(b) Mr Pomare has been unfairly dismissed.

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

When has a person been unfairly dismissed?

Section 385 of the FW 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.

Initial matters

A threshold issue to determine is whether Mr Pomare has been dismissed from his employment.

There was no dispute, and I find that Mr Pomare’s employment with Omnicare was terminated at the initiative of Omnicare. I am therefore satisfied that Mr Pomare has been dismissed within the meaning of s.385 of the FW Act.

Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b)   whether the person was protected from unfair dismissal;
(c)   whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d)   whether the dismissal was a case of genuine redundancy.

I have decided these matters below.

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

It is not disputed, and I find, that Mr Pomare was dismissed from his employment on 11 December 2023 and made the application on 28 December 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

It was not in dispute, and I find, that at the time of dismissal, Mr Pomare had completed at least the minimum period of employment with Omnicare, and that the Social, Community, Home Care and Disability Services Industry Award 2020 (the Award) applied to Mr Pomare’s employment.

I am therefore satisfied that, at the time of dismissal, Mr Pomare was a person protected from unfair dismissal.

It was not in dispute, and I find, that Mr Pomare’s dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.

Having considered each of the initial matters, I am required to consider the merits of the application.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW 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.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[23]

I set out my consideration of each of these criteria below.

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

In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[24] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[25] 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.[26]

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[27] 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.[28]

Deputy President Asbury (as she then was) summarised the relevant principles in relation to the employer’s onus of establishing that there was a valid reason for a dismissal on the balance of probabilities as follows in Gary Mellios v Qantas Airways Limited,[29] which was confirmed on appeal by the Full Bench:[30]

[17] In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct.

I have applied these principles to the matter before me.

I now deal with each of the allegations which led to the termination of Mr Pomare’s employment. I have considered all of the evidence in my determination of this matter and the conclusions I have reached.

First allegation

The first allegation against Mr Pomare is:

It is alleged that in and around early-May 2022, you engaged in misconduct when you made negative observations about your colleague, Mr Mark Spillane, Support Worker, to Mr and Mrs F, Powers of Attorney for Omnicare client, CD.
The particulars of the allegation are:
(a) In around March 2022, there was a breakdown in the working relationship between yourself and Mr Spillane that required management intervention. On 21 March 2022, a meeting was held between yourself, Mr Spillane, and Ms Kathy Wonderley, then Head of Care at Omnicare to address those issues, the result of which was a clarifying of your respective roles within CD’s home, an agreement to communicate with one another in the first instance over any concerns in CD’s home, as well as the creation of a duty statement by Ms Wonderley for the role of Key Support Worker.
(b) After that meeting, it is apparent that the issues between yourself and Mr Spillane continued.
(c) In and around May 2022, you advised Mr and Mrs F, to the effect, that Mr Spillane was trying to undermine you in CD’s home. You had previously informed them that you were mentoring Mr Spillane when it came to CDs care.
(d) Your comments about Mr Spillane were not justified and, in the event that you held such concerns, the appropriate manner to raise and address them was internally with Ms Wonderley or her then Omnicare equivalent, not with Mr and Mrs F. It is reasonable that your comments to Mr and Mrs F would lead them to form a negative view about the appropriateness of Mr Spillane continuing to provide support to CD.
(e) The comments that you made led to Mr and Mrs F directing Omnicare to remove all responsibilities from Mr Spillane with respect to him providing care and support for CD. It was their position that they were doing so in order to ‘ensure peaceful relations’ in CD’s home.
The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy

At the outset, it should be noted that Mr Lutz interviewed Mr McNamara, Mr Spillane, Ms Wonderley and Ms Turnbull in relation to this allegation however none of them were called to give evidence at the hearing and the transcripts of their evidence were not provided to the Commission. Mr Lutz also interviewed Ms Barratt, Mr Ware, Mr F and Mrs F who gave evidence at the hearing.

In his interview with Mr Lutz, Mr Pomare explained that he met Mr Spillane when he was a taxi driver and that Mr Spillane had driven Mr Pomare and a client who Mr Pomare was supporting on outings. Mr Pomare and Mr Spillane became friends. Mr Pomare encouraged Mr Spillane to study disability services at TAFE as he believed that Mr Spillane would be suitable for the work. Mr Spillane followed Mr Pomare’s advice and enrolled at TAFE. Mr Spillane was then employed by Omnicare to support CD after Mr Pomare recommended Mr Spillane for this role. The relationship between Mr Spillane and Mr Pomare gradually deteriorated when Mr Spillane started organising outings for CD without consulting with Mr Pomare first. Mr Pomare first became aware of this when Mr and Mrs F called him. Mr Pomare claimed that it was Mr and Mrs F who called him and told him that Mr Spillane was undermining him, not the other way around. In their interview with Mr Lutz, Mr and Mrs F said that they had issues with Mr Spillane taking CD to Queensland (later established to be Byron Bay). Mr Spillane went surfing and CD was left to smoke cigarettes by himself. CD got ill and also burnt a hole in the seat of the hire car. When discussing this issue with Mr Lutz, Mr F said:

... the thing is, I think some people think with a brain injury you just let them, you know, whatever they want to do, they should do. But I don't think it works very well in the long run. We’re just concerned with [CD 's] health and his well-being and his quality of life, you know? And that's why we took it on, because there was no response really from [CD’s brother]. So, we're appreciative of David [Pomare] in that respect that he, you know, tried to ensure or has tried to ensure right through as far as we can see, that [CD] is treated well and looked after really well, that the house is clean.

Mr Lutz asked Mr and Mrs F whether this incident led them to request that Mr Spillane be removed from CD’s home or whether there were other issues at play.[31] Mrs F said she couldn’t remember however Mr F said there were other issues then both Mr and Mrs F referred to a phone call which they got from CD where Mr Spillane had CD ‘all fired up to go to a show’ which they encouraged CD to first discuss with Mr Pomare.[32]

In their interview with Mr Lutz, Mr and Mrs F expressed a number of concerns about Omnicare including that they had asked Ms Jones for a budget which took some time to provide,[33] that Mr Johnson questioned their role as CD’s enduring guardians[34], that Ms Turnbull had only called them once to tell them that CD was in hospital[35] and that in the early days, before he had 24 hour care, CD had called them as no support worker had arrived at CD’s home to get him out of bed.[36] Mr F said he had a problem with memory.[37] In relation to the allegation, Mr F said, ‘…And Mark, from what I heard, was trying to undermine David [Pomare] with what he was doing.’ When asked by Mr Lutz where he had heard that from, Mr F said, ‘It was David [Pomare] that said, you know…’[38]

In my view, it is unsatisfactory that Mr Lutz did not ask Mr F to relay the exacts words spoken by Mr Pomare when Mr Pomare allegedly claimed to Mr F that Mr Spillane was undermining him. In circumstances where Mr Pomare denied this allegation, it is possible that Mr F’s recollection that Mr Pomare said that Mr Spillane was trying to undermine him was Mr F’s interpretation of what Mr Pomare said rather than what Mr Pomare actually said. Further I note Mr F’s statement that he has a problem with memory, therefore his recollection may not be reliable. The Commission is therefore unable to make findings in relation to what Mr Pomare said and whether is in inappropriate or otherwise amounts to misconduct. Further, Mr and Ms F do not allege that Mr Pomare’s comments resulted in Mr and Ms F requesting that Mr Spillane be removed from working with CD. Rather it seems to be a combination of matters which Mr and Mrs F became aware of through their conversations with CD. Finally, if Mr Pomare made the comments as alleged, these need to be considered in the context of Mr and Mrs F effectively being CD’s next of kin, and Mr and Mrs F’s concerns about Omnicare’s support services for CD.

Second allegation

The second allegation against Mr Pomare is:

It is alleged that on or about 3 November 2022, and since that time, you have engaged in misconduct by failing, as key support worker for CD, to ensure that Omnicare has visibility and awareness of a Mental Health Plan for CD, as requested by his treating GP, Dr Richard Johnson.
The particulars of the allegation are:
(a) During a recent review of all documents and records held at the home address of CD, Omnicare staff located a request from Dr Johnson for the provision of 10 sessions under the Mental Health Care Plan for CD dated 3 November 2022. At that time, you were CD’s Key Support Worker.
(b) Upon cross referencing Omnicare’s records, Omnicare staff could find no record of ever having been notified by you of Dr Johnson’s request for CD.
(c) By failing to notify Omnicare staff you potentially put CD’s care at risk as well as opening yourself and Omnicare more broadly up to reputational risk.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy
• The NDIS Code of Conduct

In relation to this allegation, Mr Pomare accepted that he was aware of the Mental Health Plan. Mr Pomare advised Mr Lutz that he acted on the plan by trying to make an appointment with a new provider, Dokotela but had difficulty doing so as he and Dokotela kept missing each other’s calls. Mr Pomare claimed that he mentioned the Plan to the Coordinator, who he believed was Ms Jones at the time. The Coordinator was in fact Ms Wonderley. Progress notes during the relevant time period were not provided to the Commission.

It is reasonable to assume that in issuing the Mental Health plan, CD’s doctor formed the view that CD had a mental health condition that warranted CD consulting a psychologist. In my view, it was important for Mr Pomare to act on the plan. Mr Pomare should have been concerned that an appointment had not been made with the psychologist by the time that he was interviewed about the allegation ten months after the plan was issued. If as Mr Pomare claims, he advised the Coordinator about the Plan and no action was taken, he should have escalated his concerns. In this regard, I note that paragraph 76 and 77 of the NDIS Code of Conduct (which was not provided to the Commission during the proceedings but which is a publicly available document) provides:

76. When directly or immediately addressing a quality or safety issue is not feasible for a worker, they should raise the issue with their NDIS provider (whether registered or unregistered) or other relevant authorities, such as the [NDIS Quality and Safeguards] Commission.
77. Workers are encouraged to raise issues with the [NDIS Quality and Safeguards] Commission if they believe they are not being dealt with appropriately within the organisation. In some circumstances there are whistle-blower protections for workers who raise issues with the [NDIS Quality and Safeguards] Commissioner, so their NDIS provider cannot take or threaten to take adverse action against them for pursuing this course of action.

In failing to escalate his concerns about the Coordinator not acting on the Plan, I find that Mr Pomare did not act in accordance with his obligations under the NDIS Code of Conduct.

Third allegation

The third allegation against Mr Pomare is:
It is alleged that in and around mid-February 2023, you engaged in misconduct when you made negative observations about two colleagues, Mr Andrew Graham and Mr Andrew Ware, Support Workers, to Mr and Mrs F, Powers of Attorney for Omnicare client, CD.
The particulars of the allegation are:
(a) In or around the above timeframe, you spoke to Mr and Mrs F about Mr Graham and Mr Ware not properly cleaning up faeces in CD’s home and that the staff toilet was frequently left ‘filthy’. You informed Mr and Mrs F that, in your view, Mr Graham and Mr Ware required ‘re-training’.
(b) In the event that you held such concerns, the appropriate manner to raise and address them was internally with Ms Carolyn Jones, Planning Coordinator, not with Mr and Mrs F. It is reasonable that your comments to Mr and Mrs F would lead them to form a negative view about the abilities of Mr Graham and Mr Ware.
(c) Following your conversation with Mr and Mrs F, Mr F contacted Ms Jones and requested that Mr Graham and Mr Ware be re-trained and that it was not appropriate for CD to fund that re-training, that it was an issue for Omnicare.
The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may
amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy

Mr Lutz interviewed Ms McLean in relation to this allegation however Ms McLean was not called to give evidence at the hearing and the transcript of her evidence was not provided to the Commission. Mr Lutz also interviewed Ms Jones, Mr F and Mrs F who gave evidence at the hearing.

In his interview with Mr Lutz, Mr Pomare explained that he had complained to Ms Jones at least a couple of times about Mr Graham and Mr Ware not properly cleaning up in CD’s home and that when Ms Jones did not act on these complaints, Mr Pomare raised his concerns with Mr and Mrs F.[39]

The following is a complete extract from the record of interview between Mr Lutz and Ms Jones about this issue:

CJ: David had spoken to me about Andrew, sent me a handwritten note about Andrew not cleaning correctly. Then he asked to come in and meet with me, and he came in and he brought in another support worker that was working in the house at the time.
ML: Is that Vanessa?
CJ: No, Vicki.
ML: Vicki.
CJ: She no longer works for Omnicare. And they came in and sat with me and spoke to me about cleaning. It was both Andrew's, but mainly Andrew Graham. And he wanted to retrain him.
ML: Okay.
CJ: So, I can't remember the order of things, but he wanted them retrained. I did get an email from the guardians saying the retraining shouldn't come out of [CD’s] finances because it's not [CD’s] fault that they need retraining and I reiterated to the guardians that it wasn't a training issue, it wasn't that they were incompetent and that they needed training, it was just we needed to, if there was an issue with cleaning, we need to talk to them about cleaning.
ML: Not necessarily a training thing, I would have thought?
CJ: No.
ML: So, you got that as an email, did you from the guardians, I think?
CJ: No, a phone call.
ML: Right. Okay.
CJ: Yeah, I got a phone call, quite an angry phone call.
ML: Okay. Can you talk me through that? I mean, you've just described, I guess but - - -
CJ: Yes. So, [Mr F] called me and he says he was calling in regard to the two boys and not doing their job correctly and that they needed retraining, and he did not feel that that money should come out of [CD’s] fund. And because they're not doing their job correctly, it's not [CD’s] responsibility.
ML: And did he tell you where he got that information?
CJ: No.
ML: They presumably got it from David?
CJ: I'm assuming so.
ML: Okay. And again, it goes back to, I guess, the question I asked you at the start in terms of, you know, what's the appropriate way or are there any guidelines that dictate what the appropriate way is for those sorts of issues to be addressed, like is it David’s role to go to the guardian or is it David's role to bring that to your attention?
CJ: No. No. See, David should have brought it to my attention, which he did and then I handed it on to Hannah, who's the frontline coordinator. So I, as you know, handed on to her. If there was more concerning issues, then it would be my responsibility to talk to the guardians. But it had gone off to Hannah and all we really needed was for her to speak with the boys and make sure that - - -
ML: Pull your socks up type thing, this is what your expectations are?
CJ: Yeah. Yeah. So no, there was no need – yeah.
ML: Okay. How's the best way to word it? So, it's not something that David really ought
to have brought to the attention of - - -
CJ: No, definitely not. No. If it had been a more serious matter, then again, he needed to bring it to Omnicare and then it's Omnicare who would tell the guardians.
ML: Yep. And so, was that that addressed with David at the time, like were the expectations and his obligations in that regard in terms of communication back to you first, was that raised or discussed with him?
CJ: Not as far as I'm aware.
ML: Okay. All right.
CJ: Not by me.
ML: Would it be clear to him that that's what his roles and responsibilities are like - - -
CJ: To be honest, I don't think so.
MJ: Okay. And the appropriateness or otherwise, I guess, is where I'm getting to, of him reaching out to the guardians.
CJ: So, when people are employed with Omnicare, they are advised of boundaries and we're not supposed to be talking to - - -
ML: Yeah. So, there's actually a policy around that?
CJ: That's right. So, we're not supposed to be talking to – and it comes in. But David, I'm not sure because David has had so much – he was overseeing everything. I'm not sure if he was clear with that. I don't know if any other discussions were made with him.

In her interview with Mr Lutz, Ms F explained:
‘… the only reason David has told us anything about any of the other workers is when
it pertains to CD's care. Now, one incident was that the staff toilet and that was filthy. And he had spoken to this person and…’

Mrs F told Mr Lutz that she thought that Mr Pomare was telling her and Mr F about these matters because of his frustration that he had reported it at Omnicare and nothing was being done. [40]

Based on the interviews with Mr Pomare and Ms Jones, it is clear that Mr Pomare did raise his concerns with Ms Jones, however there is no evidence that the concerns were acted upon, as ‘Hannah’, who Ms Jones allocated the complaint to, did not give evidence at the hearing. In my view, it was legitimate for Mr Pomare to have concerns about the state of cleanliness of the staff toilet in CD’s property and there is no suggestion that the concerns were misplaced, rather that Mr Pomare should not have raised these concerns with Mr and Mrs F. Further, Ms Jones’ evidence was she was not sure about whether Mr Pomare was clear about boundaries and whether there were any discussions about this.

I repeat my observation about the first allegation in relation to the third allegation. If Omnicare’s policies and procedures prohibited Mr Pomare raising these issues with Mr and Mrs F, Mr Pomare’s conduct needs to be considered in the context of Mr and Mrs F effectively being CD’s next of kin, and Mr and Mrs F’s concerns about Omnicare’s support services for CD.

Fourth allegation

The fourth allegation against Mr Pomare is:
It is alleged that in or around late July, early August 2023, you engaged in misconduct by deliberately failing to support the actions of your colleague, Mr Stephen McNamara, Support Worker in discussion with Mr F and Mrs F, Powers of Attorney for Omnicare client, CD.
The particulars of the allegation are:
(a)On 26 July 2023, Mr McNamara took a number of photographs in CD’s home in order to record what he saw as safety issues. It is his position that he did so with the knowledge and consent of CD. Mr McNamara sent those photos to yourself and Ms Carolyn Jones that day highlighting an issue with firefighting equipment.
(b)In or around that time, Mr and Mrs F became aware of Mr McNamara taking photos in the home through a conversation with CD. They questioned the appropriateness of Mr McNamara doing so.
(c)At around the same time, Mr and Mrs F became aware of Mr McNamara having taken CD to a soup kitchen for lunch, something which you had previously been supportive of. Again, Mr and Mrs F became aware of this through a conversation with CD and again, they questioned the appropriateness of Mr McNamara’s actions in doing so.
(d)Despite you being aware of the appropriateness of Mr McNamara’s actions in taking photographs and having been supportive of him taking CD to the soup kitchen, you failed to support Mr McNamara, or explain his actions during a meeting between yourself, Mr Chris Johnson, Head of Care and Ms Kath Murphy, Head of People and Culture and Mr and Mrs F on 4 August 2023. In that discussion you agreed with and supported Mr and Mrs F over the concerns they were raising. When asked, you denied having seen any of the photos taken by Mr McNamara and suggested Mr McNamara had breached CD’s confidentiality in taking photographs in his home. In doing so, you failed to protect the reputation of Mr McNamara as well as that of Omnicare.
(e)Mr and Mrs F subsequently directed Omnicare to remove all responsibilities from Mr McNamara with respect to him providing care and support for CD.
The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy
Mr Lutz interviewed Mr McNamara in relation to this allegation however Mr McNamara was not called to give evidence at the hearing and the transcript of his interview was not provided to the Commission.

In Mr and Mrs F’s interview with Mr Lutz, they indicated that they were concerned about CD being taken to a soup kitchen by Mr McNamara and Mr McNamara taking photos of CD’s home after CD raised these matters with them. Mr and Mrs F advised Mr Lutz that Mr Pomare did not discuss these matters with them until after they became aware of them from CD.

In Mr Johnson’s interview with Mr Lutz, he does not allege that on 4 August 2023, Mr Pomare ‘agreed with and supported Mr and Mrs F over the concerns they were raising’ and that ‘when asked, [Mr Pomare] denied having seen any of the photos taken by Mr McNamara and suggested Mr McNamara had breached CD’s confidentiality in taking photographs in his home.’[41] The extent of Mr Johnson’s evidence about this matter was ‘… every time we mentioned about outings, David reassured us that [CD] didn't want any of that. So, Mr and Mrs F, clearly in that conversation that we had with them, were expressing things that they'd heard.’[42]

Mr Lutz did not interview Ms Murphy about the meeting on 4 August 2023.

The evidence shows that Mr and Mrs F were concerned about Mr McNamara’s actions on the basis of what CD told them, before they any discussions with Mr Pomare about these matters. Implicit in this allegation is that Mr and Mrs F asked Omnicare to remove all responsibilities from Mr McNamara with respect to him providing care and support for CD because Mr Pomare did not talk them out of their reservations about Mr McNamara. There is no evidence to support a finding that Mr and Mrs F’s request was caused by Mr Pomare’s actions.
Without Mr McNamara’s transcript of evidence, it is difficult to assess whether his actions were reasonable or not and whether Mr Pomare engaged in any wrongdoing by deliberately failing to support such actions. There is no evidence about whether Mr McNamara asked CD’s permission in relation to the taking of photographs. There is no evidence that CD’s support plan including visiting a soup kitchen. I observe that taking CD out for a meal to a service providing free food, usually to people experiencing homelessness, appears to be somewhat unusual.

I repeat my observation about the first and third allegations in relation to the fourth allegation. Mr Pomare’s conduct needs to be considered in the context of Mr and Mrs F effectively being CD’s next of kin, and Mr and Mrs F’s concerns about Omnicare’s support services for CD.

Fifth allegation

The fifth allegation against Mr Pomare is:

It is alleged that in or around late July, early August 2023, you engaged in misconduct when you made knowingly false comments about your colleague, Ms Carolyn Jones, Coordinator of Supports to Mr and Mrs F, Powers of Attorney for Omnicare client, CD and subsequently deliberately failed to support her.
The particulars of the allegation are:
(a)In or around the above time, Mr and Mrs F became aware of Ms Vanessa McLean, Support Worker’s, shifts being reduced at CD’s home. Mr and Mrs F questioned you as to the reason for that and you informed them, to the effect, that Ms Jones had told you that it was due to Ms McLean taking excessive time off due to her young child being unwell.
(b)You knew this statement, through discussion with Ms Jones, to be false. The actual reason being one of management of hours under the Award.
(c)Mr F subsequently spoke with Ms Jones and questioned the decision regarding Ms McLean’s shift allocation. Ms Jones explained the reason for the decision, that you were aware of that reasoning and had supported the decision.
(d)Despite this, you failed to support Ms Jones during a meeting between yourself, Mr Chris Johnson, Head of Care and Ms Kath Murphy, Head of People and Culture and Mr and Mrs F on 4 August 2023. During that meeting, you stated that Ms Jones was deliberately ignoring your requests and that you wanted her removed as Coordinator of Support (COS) for CD. You agreed with statements made by Mr and Mrs F, to the effect, that Ms Jones was going against your wishes with respect to rostering Ms McLean. In doing so, you failed to protect the reputation of Ms Jones as well as that of Omnicare.
(e)Mr and Mrs F subsequently directed Omnicare to remove all responsibilities from Ms Jones as COS.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy

Mr Lutz interviewed Mr and Mrs F in relation to this allegation. They said that Mr Pomare was advised by Ms Jones that Ms McLean had taken too much time off.[43] However when they asked Ms Jones about this, Ms Jones advised that Mr Pomare requested Ms McLean be removed. On the basis of this response, Mr and Ms F determined that Ms Jones had lied to them. Mr and Mrs F advised that Ms Jones was also unresponsive in their experience and did not communicate with them well. She was reluctant to give them visibility of what staff were in CD’s home. They felt that if Mr Pomare had overstepped the mark, it was through frustration about Ms Jones’ inactivity.

Mr Lutz interviewed Mr Johnson in relation to this allegation. Mr Johnson said Mr and Mrs F were concerned that Ms Jones was going against what Mr Pomare wanted and that Mr Johnson tried to explain the reasons why certain people couldn't go into the house was due to the Award. Mr Johnson said that Mr and Mrs F wanted Ms McLean back in the house and explained to them that it was Mr Pomare who made the decision to remove McLean from working on Mondays so Mr Pomare could work these days but that they did not want to listen.[44]

Mr Lutz did not interview Ms Jones in relation to this allegation or in relation to the meeting on 4 August 2023.

In response to this allegation, Mr Pomare explained that he had a conversation with Ms Jones about the roster where he indicated that he was available Monday, Thursday sleepover and during the day on Saturday and Sunday. Mr Pomare then realised that his proposal ‘wouldn’t work’ as he need a daytime shift where he was working with CD to attend specialist appointments and prepare documentation for administration. A further conversation took place between Mr Pomare and Ms Jones, where Mr Pomare says that Ms Jones said that she was going to take Ms McLean off the roster because she was having too much time off. Mr Pomare was unhappy about this as he said that he was training Ms McLean to be ‘second in charge’ of CD’s house as she had good skills. Mr Pomare then raised his concerns about this issue with Ms Barratt and Ms Murphy who said that they would look into it but never came back to Mr Pomare. Mr Pomare then became aware that Mr Johnson had called Mr and Mrs F and advised them that Mr Pomare had advised Ms Jones that he wanted McLean’s hours decreased. Mr Pomare was shocked when he heard this and advised Mr and Mrs F that there is no way he wanted Ms McLean’s hours decreased. Mr Pomare told Mr Lutz that Mr F believed that Ms Jones had lied to him. However it was Mr Johnson, not Ms Jones who lied to Mr and Mrs F.[45] In relation to Omnicare’s claims that the changes to Ms McLean’s roster were necessary because of the Award, Mr Pomare said that this only affected sleepover shifts and should not have affected Ms McLean as she works day shifts only. Mr Pomare referred to the requirement in the Award that employees have ten hour breaks between shifts and that Omnicare had been audited.

Mr Lutz asked Mr Pomare about a file note of a meeting which took place on 4 August 2023 which Mr Pomare, Mr Johnson, Ms Murphy attended and Mr and Mrs F joined by phone. The file note relevantly stated, ‘David felt that Carolyn was ignoring his requests and did not want her as the COS anymore. [Mr and Mrs F] agreed. [Mr and Mrs F] felt that Carolyn was deliberately going against David’s wishes with roster requests etc.’ Mr Pomare said in relation to Ms Jones:
Yes. She ignored me quite a lot, you know. She was actually quite rude as far as I was concerned. Very disrespectful. And I thought to myself, you're my coordinator. You know, we need to work together as a support provider for the client.[46]

Mr Pomare was then asked whether he had made the comment that Ms Jones should be removed in front of Mr and Mrs F. Mr Pomare said:

Well, I'm not quite sure. It depends on what I said. I wouldn't have said to remove her. I would have probably said we probably need to look at – one of the things that would have drawn me to the level of frustration is by her not respecting me talking to her about [CD’s] care plan. My last conversation that I had with her on the phone, she turned around and said to me she not changing the roster, it’s going to stay as it is and how she's organising it. I said, “Well, that's not going to work.” And she said, “Well,” and I said, “Yeah, but that’s no good Caroline.” She just went, “Well.” I said, “Well, it's not going to work for me either.” You know, and I thought to myself, you don't talk like that and go, “Well.” You go, “Okay, then. Let’s talk about it.” You don't go, “Well.” See, that to me is a lack of respect, not thinking about the bigger picture. And I think, well, you know, maybe you've got an attitude towards me. Maybe you have. So, we have a history. Yeah. So, there is something there as well that’s not been recorded here, and maybe it's that. I don't know.[47]

Mr Lutz interviewed Ms McLean in relation to this allegation however Ms McLean was not called to give evidence at the hearing and the transcript of her evidence was not provided to the Commission. Omnicare did not provide any evidence of what changes were made to the Award which led to Ms McLean’s hours being reduced. I am therefore unable to find that Ms McLean’s hours were reduced because of changes to the Award and that this was not for some other reason including a perception by Omnicare that she was unreliable.

Determination of this allegation depends upon whether I accept Mr Pomare’s version of the initial conversation with Ms Jones about Ms McLean. Mr Pomare says that Ms Jones said that she was going to take Ms McLean off the roster because she was having too much time off. However Mr Johnson and Ms Murphy gave evidence that Ms Jones claimed that Mr Pomare requested that Ms McLean’s hours be decreased. Mr Pomare denies this. As there is no evidence from Ms Jones in relation to her conversation with Mr Pomare, there is no basis to reject his version of events. In relation to Mr Pomare’s conduct in the meeting on 4 August 2023, it appears to me that Mr Pomare’s criticism of Ms Jones was unprofessional even if Mr Pomare believes that the criticism was justified.

Sixth allegation

The sixth allegation against Mr Pomare is:

It is alleged that on or about 15 June 2023, and since that time, you have engaged in misconduct by failing, as Key Support Worker for CD, to ensure that CD undergoes regular bowel screening/testing for bowel cancer as requested by his treating GP.
The particulars of the allegation are:
(a)On the above date, Ms Vanessa McLean, Support Worker took CD to a doctor’s appointment with his treating GP, Dr Richard Johnson. During the consultation Dr Johnson questioned why he had no record of CD having completed bowel screening/testing since 2016. Dr Johnson provided Ms McLean with a test kit and the necessary pathology forms to ensure the testing was completed.

(b)That same day, Ms McLean noted Dr Johnson’s concerns in the communication diary kept in CD’s home and provided instructions for staff on how to conduct the test and obtain the stool sample. It is her further position that she spoke with you about the issue and that you informed her that you would, to the effect, ‘get it sorted’.
(c)On 13 September 2023, Ms McLean located two separate bowel screening/testing kits unused in the Key Worker drawer of the staff desk at CD’s home. Ms McLean recognised these kits as kits that she had handed to you on previous occasions following doctor’s visits with CD and that, on both occasions, you informed her that you would complete.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy
• The NDIS Code of Conduct

Mr Lutz interviewed Ms McLean in relation to this allegation however Ms McLean was not called to give evidence at the hearing and the transcript of her evidence was not provided to the Commission.

In response to this allegation, Mr Pomare said that he had written in the book in CD’s home that the staff needed to administer the bowel screening test but that CD did not want to undertake the test. The reason that Mr Pomare asked other staff to do the test is because the test needs to be dropped off at the doctor who is only open on weekdays and Mr Pomare does the bulk of his work on weekends. Mr Pomare asked CD why he did not want to do the test and told CD that the doctor wanted him to take the test. In his interview with Mr Lutz, Mr Pomare nominated two possible support workers as staff who he may have asked to administer the test, however one of these staff members did not work at CD’s home during the relevant period.

The allegation against Mr Pomare is that he has not ensured CD undergoes ‘regular’ bowel screening/testing for bowel cancer as requested by his treating GP. Implicit in this allegation is the suggestion that Mr Pomare was responsible for CD not having completed regular bowel screening/testing since 2016 although Mr Pomare did not commence employment with Omnicare until 2018 and there is no evidence that CD’s doctor requested the screening until Ms McLean took CD to the appointment on 15 June 2023. The misconduct alleged is therefore confined to one incident of Mr Pomare failing to ensure that the screening test was administered. There is some logic to Mr Pomare’s explanation that he asked other staff to do the test because the test needs to be dropped off at the doctor who is only open on weekdays. However given that Mr Pomare was both asking staff to administer the test and encouraging CD to do the test, it appears to me that he took responsibility for this matter. In these circumstances, Mr Pomare should have either ensured that the test was administered or made a more senior person in Omnicare aware if CD did not want to do the test.

Seventh allegation

The seventh allegation against Mr Pomare is:
It is alleged that on or about 6 March 2023, and again on or about 7 August 2023, you engaged in misconduct by failing to adhere to Omnicare’s accounting policies when authorising expenditure under the NDIS funding plan of Omnicare client, CD.
The particulars of the allegation are:
(a)On or about 6 March 2023, you authorised the purchase of a number of items through CD’s plan manager, Plan Partners, from Vital Living Solutions Pty Ltd under CD’s NDIS funding plan. The total sum of which was $729.30.
(b)On or about 7 August 2023, you authorised the purchase of a Cloud Cushion through CD’s plan manager, Plan Partners, from Vital Living Solutions Pty Ltd under CD’s NDIS funding plan. The total sum of which was $1,176.40.
(c)On both occasions you failed to adhere to Omnicare’s accounting procedures in that you had not spoken with, nor sought approval of, CD’s COS, Ms Carolyn Jones prior to the purchase. It is Ms Jones’ responsibility as COS to monitor expenditure in line with CD’s NDIS funding plan and acquit all such expenditure on behalf of Omnicare.
The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy

This allegation was made by Ms Jones during her interview with Mr Lutz. In response to this allegation, Mr Pomare said that he called Ms Jones to advise that CD needed the items specified in the allegations, that Ms Jones was not available and that communication with her was not working. Mr Pomare would leave messages and Ms Jones would never get back to him in relation to some of the messages he left. As Mr Pomare could see that CD needed the items, Mr Pomare would take CD to ‘Vital Living’ so CD could order the items. These items could take up to three months to receive as the order needed to go through CD’s NDIS plan manager, Plan Partners. Mr Pomare said that Ms Jones could approve the expenditure but that this is not required. Mr Pomare said that Mr and Mrs F were always made aware of the purchases and approved them.

In his Investigation Report, Mr Lutz noted that Ms Jones had advised that the items were actually in CD’s house.

There is no suggestion by Omnicare that the items were not required by CD or that funds were spent inappropriately. The substance of this allegation appears to be that Mr Pomare acted outside of his authority in approving the expenditure. Omnicare did not provide any evidence about how expenditure was required to be approved through Plan Partners. It is reasonable to assume that Plan Partners would not have facilitated the purchases if they did not have CD’s agreement to do so. I have been unable to identify any policies or procedures in the documents provided in relation to Omnicare’s accounting procedures or that required Mr Pomare to seek approval from Ms Jones in relation to the purchase of equipment. In the circumstances I am not satisfied that Omnicare has established that Mr Pomare engaged in misconduct with respect to this matter.

Eighth allegation

The eighth allegation against Mr Pomare is:

It is alleged that on several occasions since the commencement of this calendar year, you have engaged in misconduct by failing to ensure, as Key Support Worker for CD, that CD’s dignity was respected in terms of record keeping within his home.
The particulars of the allegation are:
(a)Since the commencement of the current calendar year, a communication diary has been maintained in CD’s home. You and other Omnicare staff used this diary to record messages and instructions to one another along with observations of CD. The diary was openly accessible to CD and, on the account of Support Workers and CD’s Powers of Attorney, regularly read by him.
(b)On several occasions since the commencement of the current calendar year you have recorded notes that could, on balance and in all likelihood, be viewed as derogatory to CD, create unnecessary concern on his part about the standard of care and support he is receiving, and, as a result, were disrespectful of his dignity. This has included:

i. 18 February 2023, noting that there was ‘POO ON CARPET, POO ON FLOOR FROM FOOT PRINT ... DISGUSTING’
ii. 30 May 2023, questioning staff about not being present for a housing inspection
iii. 31 May 2023, writing ‘WHEN A STAFF IS EXPECTED TO COMPLETE A SIMPLE TASK FROM 10-4, I EXPECT THE TASK TO BE DONE!’
iv. 1 June 2023, writing ‘MAKE SURE TASK’S ARE COMPLETE ON EACH SHIFT’ and questioning whether staff were asked to purchase cigarettes for CD after staff members could not locate any
v. 13 June 2023, questioning staff over not reading notes about the fridge
vi. 12 July 2023, questioning staff about not reading notes about CD’s car
vii. 16 July 2023, referring to CD opening his bowels on the floor of his bathroom and bedroom

(c)In addition, during a recent review of all documents and records held at the home address of CD, Omnicare staff located a number of confidential medical records for CD and Mr Michael Rowan, who is listed at your home address and understood to be your partner.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy
• The NDIS Code of Conduct

Ms Murphy’s evidence indicated that she first became aware of concerns about the communications diary when she received a complaint from a support worker, Mr Andrew Graham who complained that he felt belittled and humiliated about Mr Pomare’s comments in the diary which Mr Graham believed were directed at him.[48] Ms Murphy says that she organised a meeting with Mr Pomare and Ms Hannah Relf, People and Culture Coordinator on 6 June 2023 to discuss Mr Graham’s concerns. During the meeting Ms Murphy advised Mr Pomare that the way that he was communicating in the diary, with capitals and highlighting was not appropriate.[49] Ms Murphy made a file note in relation to the meeting in which she noted that Mr Pomare acknowledged that his writing may be viewed in the way perceived by Mr Graham but that this was definitely not the intent and that he was ensuring that CD was being cared for properly. Mr Pomare had tried to call Mr Graham to apologise.[50]

When responding to this allegation, Mr Pomare explained that in relation to the first comment about ‘poo’:

Floor cleaning products were in the garage. What's happened is this specific staff member has done this more than once. So, it's like, what do I have to do to get this sorted? You know, we need to stop this. I've reported it to Caroline, I've reported it to the administration, I've reported to HR, everybody, you know, So, I assume after being reported, they're going to do their job and go and sit down, talk to the individual, because I've asked them to talk to the individual and bring it to his attention because he's not listening to me, you know? So, I said, I'll leave it up to you guys to do that. And they said, “Okay, we'll take care of it.”
…
And the thing is, enough is enough, you know. I've spoken to the superiors. I've spoken to the management. I assume that's their job, not mine. I've done my part of the job as a care worker. It’s now I've left it up to them to oversee that. And when nothing was changing. And I thought, what's wrong with these people? So, I highlighted it.
…
I said, :Snap out of it. Just do your job.” Why should we walk in after a shift and see poo stains on the floor? This is [CD's] house. This is disrespectful to his home. He doesn't have to smell faeces on the floor.[51]

Mr Pomare explained that because of funding limitations, there are two hours in the day when CD does not have support, from 9:00am-10:00am and from 4:00pm-5:00pm. Because of this, there is no staff handover and staff rely upon the Communication Diary to communicate.[52]

The three comments from 30 May to 1 June 2023 were directed at Mr Graham and were the subject of Mr Graham’s complaint about Mr Pomare which was discussed with Mr Pomare on 6 June 2023.

In relation to the second comment questioning staff about not being present for a housing inspection, Mr Pomare explained that it can be difficult to get appointments with CD’s community housing provider and that it is important that staff waiting for the community housing provider to attend the home before taking CD out to lunch. On this occasion staff did not do this and CD missed the appointment.[53]

In relation to the fifth and sixth comments on 13 June and 16 July 2023, the comments that Mr Pomare made in the Communications Diary have not been provided to the Commission, so I am unable to make an assessment about the appropriateness or otherwise of these comments.

In relation to the seventh comment on 16 July 2023, referring to CD opening his bowels on the floor of his bathroom and bedroom, Mr Pomare explained that the purpose of the comment was so that staff attending the next shift could appropriately support CD by ensuring that he wears a ‘pull-up’, and so they could change and shower CD.[54]

In relation to the allegation that Omnicare staff located a number of confidential medical records for Mr Michael Rowan, Mr Pomare’s partner, Mr Pomare accepted that this occurred but said that it was unintentional and that his partner’s papers become mixed up in Mr Pomare’s roster folder. I accept Mr Pomare’s explanation in this regard.

I accept that the first and third comments in the Communication Book could be perceived as critical of staff and that it was not appropriate for Mr Pomare to write these in the Communications Book. However, Mr Pomare’s frustration in relation to the cleanliness of CD’s apartment is understandable and the first comment should be considered in that context. Further, the fact that the two hours per day that CD is alone does not allow for a handover between shifts is very problematic and creates a situation where matters which should be discussed and resolved between staff are recorded as written instructions which is not ideal. Finally I note that the first four comments were dealt with in the meeting with Ms Murphy on 6 June 2023 and that Mr Pomare took responsibility for his actions and attempted to apologise to Mr Graham. It was therefore not necessary for these matters to be revisited by Omnicare. As noted above, Omnicare has not provided any information which establishes that the fifth and sixth comments were inappropriate. I accept Mr Pomare’s explanation in relation to the seventh comment and find that it was reasonable and in CD’s interests for Mr Pomare to provide this information to staff.

Ninth allegation

The ninth allegation against Mr Pomare is:

It is alleged that since late 2021, you have engaged in misconduct by failing to adhere to Omnicare’s Professional Boundaries Policy when managing your relationship with Omnicare client, CD, and his Powers of Attorney, Mr and Mrs F.
The particulars of the allegation are:
(a)In late 2021, it is understood that CD expressed a desire to have his brother, who was at that time his Power of Attorney, removed from that role and have Mr and Mrs F instated. It is understood that yourself and Ms Kathy Wonderley, then Head of Care, closely assisted Mr and Mrs F through that transition process.
(b)Since that time, as Key Support worker for CD, you have on the account of Mr and Mrs F, conducted most visits to their home with CD. The exception being a brief period where Mr Mark Spillane conducted some such visits prior to his removal as a Support Worker for CD in May 2022.
(c)Similarly, since that time, you have attended almost all medical appointments for CD whether rostered on duty or not. In cases where you have not been rostered on, notes in the communication diary kept in CD’s home reflect you attending and/or requesting staff contact you before or after their attendance.
(d)Similarly, since that time, records reflect that you have taken sole responsibility for the service and maintenance of CD’s vehicle. That maintenance has almost solely been conducted in [redacted], nearby your home address, not in [redacted] in proximity to CD’s home address. Receipts for the servicing of the vehicle, located in CD’s home, list the vehicle in your name, not CD’s.
(e)Similarly, since that time, you have taken sole responsibility for the management and acquittal of CD’s personal finances to the exclusion of all other Omnicare staff. You have liaised directly with Mr and Mrs F about all day-day expenditure as well as any major purchases for CD’s home, such as a new television in January 2023, and a new fridge in May/June 2023. In doing so, you have failed to give Omnicare visibility of CD’s expenditure or keep Omnicare informed of any large transactions.
(f)Your relationship with Mr and Mrs F is such that they have openly described you to Omnicare staff during recent meetings as a friend.
(g)In conducting yourself in this manner, you have failed to protect yourself, CD, and Omnicare from risk of psychological and/or financial harm.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy

Mr Lutz interviewed Ms McLean, Mr NcNamara, Ms Turnbull and Ms Wonderley in relation to this allegation however none of them were called to give evidence at the hearing and the transcript of their evidence was not provided to the Commission.

In relation to these allegations, Mr Pomare said:

·     Mr Pomare would take CD to see his mother’s grave on the weekend and as part of that trip they would often have brunch or lunch with Mr and Mrs F at a local restaurant or their home as they lived nearby. It was usually Mr Pomare who took CD to see Mr and Mrs F as Mr Pomare was working weekends. Mr Pomare wanted to train other support workers to do this and had started training Mr Spillane.[55]
·     Mr Pomare agreed that he had attended most medical appointments with CD and that he attended with other staff when he was not on duty for training purposes, given that Omnicare had no money for training.[56]
·     Mr Pomare agreed that he had taken sole responsibility for the service and maintenance of CD’s vehicle. Mr Pomare said that he took CD’s car to his own mechanic because he could get a good price for CD and he could assist with dropping off and picking up the car which would ordinarily require two staff members. Mr Pomare said that the mechanic issued the invoice in Mr Pomare’s name rather than CD’s by mistake. Mr Pomare said that he had consulted with CD, Kathy Wonderley and Mr and Mrs F about this arrangement and that they were happy with this.[57]

In relation to CDs personal finances, Mr Lutz questioned Mr Pomare in this way:
[Mr and Mrs F's] position is that they deal almost exclusively with you around the acquittal of [CD’s] finances. That you take, well I guess for want of a better word, the lead in organising any sort of major purchases and that there is good communication between yourself and them. The issue more is around the fact that Omnicare themselves have no visibility of that sort of thing.[58]

Mr Pomare explained that Omnicare does have visibility in relation to CD’s expenses as this is in physical files in CD’s home which Omnicare management could review any time they wanted to. Mr Pomare also said that Mr and Mrs F monitor CD’s spending on a regular basis as they have a computer with access to CD’s accounts.[59]

The difficulty that I have with this allegation is that Mr Pomare has never hidden the fact that he visits Mr and Mrs F regularly with CD and took CD to most medical appointments. Further, Mr Pomare’s involvement in Mr and Mrs F’s appointment as Power of Attorney was as a more junior employee to Ms Wonderley who was then Head of Care. It is unclear as to the basis that Omnicare is alleging that Mr Pomare’s involvement was inappropriate. In the F3 Employer response form filed in this matter, Omnicare states at paragraph 1.5 that Mr Pomare was classified at Level 2.4 of the Award. This shows that Mr Pomare was not employed in a supervisory or management role. At any time, senior Omnicare personnel could have identified that they had concerns about Mr Pomare’s conduct and directed Mr Pomare to cease visiting Mr and Mrs F and to cease taking CD to medical appointments. However this did not occur which indicates that Omnicare did not have such concerns. It appears that Omnicare first became concerned about Mr Pomare not observing professional boundaries when Mr Johnson and Mr Murphy both commenced employment in mid-2023. There is no explanation as to why Mr Johnson and Mr Murphy did not direct Mr Pomare to immediately cease the conduct they were concerned about.

In relation to the allegations about CD’s car, the evidence is that Omnicare management through Ms Wonderley was aware of the arrangement. In relation to the finance matters, there is no allegation that monies were inappropriately spent but that Omnicare did not have any knowledge of purchases made on behalf of CD. At any time, Omnicare management could have become involved in these matters and insisted on the provision of information. There is no evidence that this ever occurred.

In conclusion, I can find no wrong doing on the part of Mr Pomare in relation to these matters in circumstances where Omnicare had knowledge of Mr Pomare’s actions and took no steps to request him to undertake his role differently. I am concerned that I do not have the benefit of Ms Wonderley’s and Ms Turnbull’s records of interview as these would have assisted the Commission in relation to this allegation given that they were more senior employees than Mr Pomare and are likely to have been aware of his action with respect to the allegation.

Tenth allegation

The tenth allegation against Mr Pomare is:

It is alleged that between October 2020 and in or around March 2022, and since that time you have engaged in misconduct by failing and/or refusing, as Key Support Worker for CD, to adopt and follow the recommendations of Ms Ruth Howell, Occupational Therapist, Hastings Mobile Rehab Pty Ltd with respect to the use of a standing hoist to transfer CD.
The particulars of the allegation are:
(a)In or around October 2020, Ms Howell recommended the use of a standing hoist for physically transferring CD in his home. Ms Howell made the recommendation both for CD’s safety whilst being transferred as well as to ensure safe manual handling methods for Omnicare staff, thereby reducing the likelihood of injury. The hoist was funded and supplied under CD’s NDIS funding plan after an application was made by Ms Howell on 15 October 2020. Following the purchase of the hoist, information from Ms Howell is that you, as Key Support Worker, resisted its use and, over a prolonged period of time, pressured her to change her recommendation. You suggested that use of the hoist was disabling CD and unnecessarily changing his routine. Ms Howell refused to change her recommendation and suggested that Omnicare obtain a second opinion.
(b)On 19 January 2022, Ms Howell provided an Occupational Therapy report to Omnicare which, amongst other things, addressed Mobility and Transfers. Ms Howell highlighted in her report that the then continuing practice of manual transferring CD was unsafe. She noted that two recent physiotherapists had provided a second opinion and concurred with that assessment, namely, they had agreed that to continue the practice put workers at risk of serious manual handling injury. Ms Howell’s report reinforced her previous recommendation regarding the use of the standing hoist and/or a sling hoist that had been purchased for CD prior to her engagement.
(c)Following that, in late February 2022, written instructions were provided to Omnicare staff on the use of the hoist along with an instructional video.
(d)It is Ms Howell’s position that you continued to refuse to follow her recommendations and advice and continued to pressure her to change her position. This led to Hastings Mobile Rehab ceasing its service provision to CD in March 2022, citing concern that continued service provision by them was wasting CD’s NDIS funding.
(e)Since that time, it has been established by current Omnicare staff that the hoist is not used by you or any Omnicare staff in CD’s home. A recent inspection located the standing hoist and a sling hoist in the garage of CD’s premises. Both were in a state of disrepair and required maintenance to make them operational.
(f)Your determination not to follow Ms Howell’s recommendation placed CD, yourself, and your Omnicare colleagues at risk of injury. It has also led to a position where certain Omnicare staff are unable to work overnight shifts in CD’s home due to the fact that they are physically unable to manually transfer CD without assistance.

The conduct set out in the allegation above, if substantiated in full or in part, may constitute misconduct as defined under the Omnicare Misconduct and Disciplinary Policy in that it may amount to breaches of:
• Omnicare’s Code of Conduct Policy
• Omnicare’s Code of Ethics Policy
• The NDIS Code of Conduct

Mr Lutz interviewed Ms Turnbull and Ms McLean in relation to this allegation but their transcripts of evidence were not provided to the Commission and neither of them gave evidence at the hearing. Ms Ruth Howell did not give evidence at the hearing. The only person with knowledge of this matter with respect to Ms Howell’s recommendations who gave evidence at the hearing was Mr Pomare. Given the seriousness of this matter this was most unsatisfactory.

It appears that no one in a senior role at Omnicare was aware of Ms Howell’s recommendations until a hard copy of Ms Howell’s letter was found at CD’s home. There is no evidence that Ms Pomare engaged Ms Howell or which establishes the identity of the person who engaged Ms Howell on CD’s behalf.

I understand that the background to this allegation is that prior to Ms Howell’s engagement, CD was transferred around his home, including between his bed and wheelchair by support workers using a ‘one on one assisted standing pivot transfer’. Although this technique was not explained by either Mr Pomare or Omnicare during the hearing, I understand it to involve CD standing and spinning on the same spot to move from one surface where he can sit to another located in close proximity to where he is standing. In response to this allegation, Mr Pomare explained that Ms Howell had organised a standing hoist which was not suitable for CD as it would cause his shins to rub up against it. Mr Pomare said that there was then an incident where CD slid out of his wheelchair during a transfer while he was assisted by another support worker, who was heavily pregnant at the time. Mr Pomare said that Ms Howell was brought in to do a further assessment following this incident and that Ms Turnbull was the coordinator at the time. A further standing aid was recommended and purchased for CD to use at a cost of $4,991.98.

Mr Pomare explained that when staff were trained on the use of the standing aid, CD was very uncomfortable, so Ms Howell introduced staff to Colleen (whose surname Mr Pomare could not remember), a physiotherapist who worked for the local hospital. Colleen trained the staff in manual transfers without the aid. Consequently, those staff members who could undertake manual transfers could continue to do so and those who did not wish to could use the standing aid.

Mr Lutz put to Mr Pomare that Ms Howell’s position was that after the standing aid was purchased, Mr Pomare resisted its use over a prolonged period of time and pressured her to change her mind with respect to her recommendation to use the standing aid. Mr Pomare responded, ‘That's not my role, nor is that my job.’ Mr Lutz then took Mr Pomare to an email which Ms Howell sent to Mr Johnson in September 2023 in which Ms Howell stated,

I felt that [CD] and his workers were at risk of injury completing one to one assisted standing pivot transfers in and out of the bed the involved heavy lifting and twisting from the worker. [CD] was fearful and unpredictable during these transfers. I have a no lift policy for manual handling, regardless of the size, skill and strength of the worker. We felt ongoing and prolonged pressure from David to change our recommendation, with him suggesting that we were disabling [CD] by hoisting him, less standing strength practice and changing his routine.

Mr Pomare explained that it was important that CD could still use his muscles and stay independent and that the standing aid was an added bonus for CD’s quality of care and available for staff who did not feel comfortable performing manual transfers. Mr Pomare also said there had not been any injuries experienced by staff who were doing manual transfers or any workers compensation claims. Mr Lutz put to Mr Pomare that standing aids were found in CD’s garage and in a state of disrepair and required maintenance to make them operational. Mr Pomare said that he believed that the standing aids were operational and that the garage was able to be accessed by support workers who wished to use them.

There were a number of issues which made this allegation difficult to assess. Firstly, the allegation requires a finding as to whether the ‘one on one assisted standing pivot transfer’, which presumably had been used for many years by support workers to transfer CD, prior to the engagement of Ms Howell, was unsafe. As Ms Howell did not give evidence at the hearing, there was no opportunity for the Commission to explore her recommendation further and satisfy itself that the standing aid was the only safe way of transferring CD and that Mr Pomare’s actions in not using it were unreasonable.

Secondly, there is no evidence which explains why other support workers did not use the standing aids while transferring CD. Mr Pomare gave evidence that other support workers were trained to use the standing aids and they were available to be used by them. Even if it is accepted that the standing aids were no longer operational, they would have been able to be used at some stage after they were purchased. Given that Mr Pomare did not have any supervisory responsibilities towards other staff, it is unclear why other support workers did not use the standing aids and the basis upon which Mr Pomare is apparently being held responsible for this.

Thirdly, there is no allegation that Mr Pomare engaged Ms Howell. It is reasonable to assume that Ms Howell’s report would have been sent to the person who engaged her and that person would have been responsible for implementing the recommendations. It is concerning that Ms Howell’s recommendations were unknown to Omnicare prior to Mr Johnson contacting Ms Howell and discovering a hard copy of her recommendations in CD’s home. It is possible that the transcript of Ms Turnbull’s evidence may have gone some way to explaining these matters but as noted above it was not made available to the Commission. If Omnicare had called evidence from witnesses who established that the standing aid was the only safe way of transferring CD and that Mr Pomare was responsible for directing staff to use the standing aid but did not do so, it is likely that a finding that Mr Pomare engaged in misconduct in relation to the tenth allegation would be available to the Commission. However such a finding cannot be made in the absence of such evidence and having regard to Mr Pomare’s response in relation to the allegation.

Conclusion in relation to the allegations

On the face of it, the allegations against Mr Pomare were very serious. They fitted into four broad categories, which I will loosely describe as failure to provide appropriate care to CD, making negative comments about colleagues to Mr and Mrs F, managing CD’s finances in a way which breached Omnicare’ policies and failing to observe professional boundaries.

Omnicare positioned Mr Pomare as taking on duties which were not part of his role as a Key Support Worker. For example, Mr Johnson gave evidence that liaising with medical professionals was not part of Mr Pomare’s role but rather the role of the Coordinator who is currently Ms Jones. If this was the case, Omnicare should have directed Mr Pomare to cease these duties and ensured they were carried by Ms Jones. The fact that Omnicare did not do this demonstrates that its management were content for Mr Pomare to undertake these duties and condoned his actions. There may have been a range of reasons for this, which have not been explained by Omnicare, including costs and staffing issues.

It appears that once Mr Ware made the complaint about Mr Pomare in July 2023, Omnicare’s failure to ensure that the Coordinator was carrying out duties which fell within her responsibility, such as liaising with CD’s medical practitioners, was brought into sharp focus. Tellingly, Mr Ware said in his record of interview that he believed that Mr Johnson’s agenda is protecting Omnicare rather than protecting CD, and that Mr Ware thinks that protecting CD should be put first.[60]

Many of the matters which Omnicare now says that it was concerned about were within its control to address. For example, if it was the case that Mr Pomare was not regularly updating progress notes and sharing information in relation to CD, this would have been apparent to managers who were reviewing the notes as there would have been no or limited notes recorded about CD when Mr Pomare was on shift. The fact that this was not identified by Omnicare indicates that the notes were not being reviewed by management. In my view, it is unacceptable for Omnicare to not be monitoring the care of a client who was being supported by Support Workers classified at level 2 of the Award. Although such workers are expected to discharge their duties with reasonable care and skill and in accordance with the NDIS Code of Conduct, they are not senior employees, and their work requires a degree of supervision and monitoring.

As indicated in my analysis of the allegations, Omnicare has not been able to establish that misconduct occurred with respect to the majority of the allegations. This may be explained by Omnicare’s decision not to provide the Commission with all of all of the material that was considered by Mr Lutz in his investigation. However, I do accept that Mr Pomare should have brought to Omnicare’s attention CD’s Mental Health Plan and the Bowel Screening Kits. I also accept that some of Mr Pomare’s conduct towards his colleagues was unprofessional. These matters may have warranted some form of disciplinary action, but in my view they are not sufficiently serious to justify dismissal, particularly in light of Ms Murphy’s evidence that a lot of Mr Pomare’s behaviour had not been properly addressed due to changes in management. Further, Ms Jones, as the Coordinator should have been taking an interest in CD’s medical and financial issues and should not have been leaving these to Mr Pomare to manage by himself. Taking into account all of the circumstances, I find that there was no valid reason for Mr Pomare’s dismissal.

Was Mr Pomare notified of the valid reason?

Proper consideration of s.387(b) requires a finding to be made as to whether Mr Pomare ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[61]

As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[62]

Was Mr Pomare given an opportunity to respond to any valid reason related to his capacity or conduct?

As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[63]

Did Omnicare unreasonably refuse to allow Mr Pomare to have a support person present to assist at discussions relating to the dismissal?

On the basis of the evidence before me, I find that Omnicare did not unreasonably refuse to allow Mr Pomare to have a support person present at discussions relating to the dismissal.

Was Mr Pomare warned about unsatisfactory performance before the dismissal?

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 Omnicare’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

There was no evidence or submissions made by either party in relation to this matter.

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

There was no evidence or submissions made by either party in relation to this matter.

What other matters are relevant?

As noted above, the allegations that were made against Mr Pomare were serious. As well as participating in two interviews with Mr Lutz, Mr Pomare provided written responses to some allegations. Mr Pomare was provided with a record of his interview with Mr Lutz. However, Mr Pomare did not provide any of this material to the Commission. He did not even explain his job to the Commission and what it entailed or provide the letter of termination. The only reason that the Commission was informed of Mr Pomare’s response to the allegations was because Omnicare provided Mr Pomare’s record of interview. However, the record of interview was not a complete record of Mr Pomare’s response to the allegations because it was supplemented by additional responses in writing which were not provided to the Commission.

Mr Pomare presented as an articulate person and was required to have good written communication skills in order to complete progress notes and other documentation for CD. As such, there is no reason that Mr Pomare could not have provided written material to the Commission which properly responded to the allegations and explained why the dismissal was unfair. I have found that there was no valid reason for the dismissal because Omnicare was not able to establish on the balance of probabilities that most of the conduct which was the subject of the allegations occurred and that the conduct which did occur was not serious enough to justify dismissal. This may be because Omnicare did not provide the Commission with all of the information that was considered by the investigator. If Omnicare had provided the Commission with this material, the outcome may well have been different. In my view, it would create an unfair outcome for Mr Pomare to benefit from deficiencies in Omnicare’s case when his own material was woefully inadequate. This is a matter which is relevant to my consideration as to whether the dismissal is unfair.

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

I have made findings in relation to each matter specified in s. 387 as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[64]

Although Omnicare bears the onus of establishing whether there is a valid reason for the termination, it is Mr Pomare as the applicant in this matter who must satisfy the Commission that his dismissal was unfair in circumstances where this is disputed by Omnicare.[65] As Mr Pomare did not provide any evidence in relation to any of the matters I am required to consider (apart from the transcript of interview with Mr Lutz, which is an incomplete record of his responses to the allegations), my finding that Omnicare could not establish that misconduct occurred in relation to most of the allegations is not a sufficient basis to conclude that the dismissal was harsh, unjust or unreasonable. This is particularly so given that Mr Pomare was not blameless in relation to the incidents involving the Mental Health Plan and the Bowel Screening Test. It has been observed by a Full Bench of this Commission that it is difficult to envisage an employer succeeding in establishing that a dismissal was not unfair, where the reason advanced by the employer for the dismissal, is found not to be a valid reason.[66] However, given the circumstances of this case, a finding that Mr Pomare was unfairly dismissed when he has filed almost no material in support of this would be inconsistent with ensuring ‘a fair go all round’.

Having considered each of the matters specified in s. 387 of the FW Act, I am not satisfied that the dismissal of Mr Pomare was harsh, unjust or unreasonable.

Conclusion

As I am not satisfied that the dismissal of Mr Pomare was harsh, unjust or unreasonable, I find Mr Pomare was not unfairly dismissed within the meaning of s. 385 of the FW Act. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D Pomare, the Applicant
K Murphy, for the Respondent

Hearing details:

2024
24 May
Microsoft Team Video

Final written submissions:

Mr Pomare: 3 June 2024
Omnicare: 7 June 2024

[1] DCB, 233.

[2] Ibid, 234.

[3] Ibid.

[4] Ibid, 233.

[5] Ibid.

[6] Ibid.

[7] Ibid, 234.

[8] Ibid, 234-5.

[9] Ibid, 468.

[10] Ibid, 461-463.

[11] Ibid, 492-493

[12] Ibid, 493

[13] Ibid, 493-494

[14] Ibid, 494.

[15] Ibid, 495.

[16] Ibid, 500.

[17] Ibid, 501.

[18] Ibid, 501.

[19] Ibid, 227.

[20] Ibid.

[21] Ibid, 38-47.

[22] Ibid, 48.

[23] 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].

[24] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[25] Ibid.

[26] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[27] Edwards v Justice Giudice [1999] FCA 1836, [7].

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

[29] [2020] FWC 2989.

[30] [2020] FWCFB 5885.

[31] Ibid, 446.

[32] Ibid, 447.

[33] Ibid, 435.

[34] Ibid, 437.

[35] Ibid, 438.

[36] Ibid

[37] Ibid, 443.

[38] Ibid, 448.

[39] Ibid, 534.

[40] Ibid.

[41] Ibid, 507.

[42] Ibid.

[43]Ibid, 453

[44]Ibid, 507

[45]Ibid, 551.

[46] Ibid, 555.

[47] Ibid,

[48] Ibid, 98

[49] Ibid.

[50] Ibid, 207.

[51] Ibid, 569.

[52] Ibid, 570-571.

[53] Ibid, 572.

[54] Ibid, 575.

[55] Ibid, 581.

[56] Ibid, 582.

[57] Ibid, 584.

[58] Ibid.

[59] Ibid.

[60] DCB, 125.

[61] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[62] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[63] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[64] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

[65] Brock Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel, [2024] FWCFB 323, [62]

[66] Ibid, [65].

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