Debra Anderson v Baptistcare Inc T/A Baptistcare

[2016] FWC 246

[2016] FWC 246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debra Anderson
v
Baptistcare Inc T/A Baptistcare
(U2014/13282)

COMMISSIONER WILLIAMS PERTH, 15 JANUARY 2016

Termination of employment.

[1] This matter involves an application made by Ms Debra Anderson (Ms Anderson or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Baptistcare Inc T/A Baptistcare (Baptistcare or the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] Baptistcare offer a range of services including residential aged care.

[4] Baptistcare operate the Bethel Aged Care Facility (Bethel) in Albany.

[5] Ms Anderson was a nurse employed by Baptistcare at Bethel as the Clinical Care Coordinator.

[6] On 25 September 2014 Ms Anderson was dismissed with five weeks pay in lieu of notice.

[7] The letter of termination refers to a meeting held that same day and lists the reasons for termination as:

• Raising your voice at Gurinder at the operations meeting on 1 September 2014.



• Speaking about the nurses from India in a derogatory way.



• Raising your voice to Gurinder on 12 September 2014.



• Intimidating behaviour towards Ivy Din (Ms Din) on 25 August 2014 – telling her not to use her phone when she was on a break, interrupting her doing her medication rounds without due cause.

[8] The letter also mentions alleged breaches of the medication management policy and incorrect reporting of medication incidents which were not formally discussed. The respondent’s position is that these medication concerns were not relied upon in its decision to dismiss Ms Anderson from her employment.

[9] Gurinder is a member of staff, Ms Gurinder Dahiya (Ms Dahiya).

The evidence

Ms Anderson

[10] Ms Anderson gave evidence that she has been a registered nurse for 30 years.

[11] Ms Anderson was sent a letter dated 23 September 2014 from the Facility Manager Mr Swift to whom she reports. The letter is headed unsatisfactory performance and states that she is required to attend a meeting to discuss raising her voice at Ms Dahiya on 1 September 2014, speaking about nurses from India in a derogatory way, raising her voice to Ms Dahiya on 12 September 2014 and intimidating behaviour towards Ms Din on 29 August 2014. The letter advises Ms Anderson that she is welcome to bring a support person with her to the meeting.

[12] In her witness statements Ms Anderson denies that she raised her voice at Ms Dahiya on 1 September 2014 but agrees she spoke to her expressing her concern with regards to some changes in the roster.

[13] In her oral evidence Ms Anderson states that she speaks loudly all the time.

[14] Mr Swift the Facility Manager of Bethel in his witness statement states that a staff member at Bethel, Ms Carter, had reported to him that on 16 June 2014 Ms Anderson spoke to two staff members, Ms Carter and Ms Cooper, and told them that a particular enrolled nurse was the leader of the “Filipino Mafia” at Bethel. In her oral evidence Ms Anderson agrees that she had a conversation similar to that with Ms Carter. 1 Ms Anderson says that she is not usually prone to gossip because of her position but she had heard that this is how the staff members referred two other employees and she was repeating that gossip.

[15] Ms Anderson denies that she ever spoke about nurses from India in a derogatory way.

[16] Ms Anderson denies that she raised her voice at Ms Dahiya on 12 September 2014 during the operations meeting and says that those discussions were not from her side in a raised tone of voice.

[17] Ms Anderson denies that she behaved in an intimidating manner towards Ms Din on 29 August 2014. Her evidence is that she did tell Ms Din not to use her phone in the office which is in full view of the residents and their families. Ms Din advised her that she was on her break. Ms Anderson told her that it is fine to use her phone on her break however it was not appropriate to be on her personal phone in the office. Her evidence was that it is Baptistcare policy that personal phones are not to be used on the floor.

[18] Ms Anderson agrees she did interrupt Ms Din while she was doing a medication round to ask Ms Din to ensure that a resident got back to his room safely as he had recently started using an electric wheelchair and required supervision. In her oral evidence she says it is not uncommon for the medication rounds to be interrupted and she has witnessed Mr Swift do this. She explained in her oral evidence that she beckoned Ms Din to come towards her saying ‘come here’ and was not aware that this could be viewed as degrading or belittling Ms Din.

[19] Ms Anderson’s evidence was that she was subject to a performance appraisal in 2014 which had a very positive outcome including that she had good communication skills.

[20] Ms Anderson agrees that during the meeting with Mr Swift when the concerns Baptistcare had raised with her were discussed he did read out the complaint from Ms Din. Her evidence was he did not tell her that anybody else had made complaints against her.

[21] Ms Anderson’s evidence was to the effect that after the concerns were discussed the meeting was adjourned for approximately five minutes and she was then advised that her employment would be terminated.

[22] Ms Anderson explained that after being dismissed from Baptistcare she found another job five weeks later however this position is as a registered nurse and at an annual pay rate of approximately $20,000 less than she was receiving at Baptistcare. I note the letter of termination confirms that Ms Anderson was dismissed with five weeks pay in lieu of notice.

Ms Dahiya

[23] Ms Dahiya was the Acting Business Manager at Bethel at the time of Ms Anderson’s dismissal and was a registered nurse before taking up this position. Ms Dahiya has been employed with Baptistcare since 2012. When she first started at Bethel her evidence was that she did not have any problems with Ms Anderson.

[24] Her statement is that when she became Acting Business Manager she started to experience more problems with Ms Anderson.

[25] Her evidence is that the Business Manager position and the Clinical Care Coordinator position occupied by Ms Anderson were the next most senior positions at the site underneath Mr Swift the Facility Manager.

[26] Her statement is that at times Ms Anderson would give instructions in an unfriendly manner and criticise her work in front of other staff and would often raise her voice. Under cross-examination she explained she had discussed this with Ms Anderson a couple of times. She had told Ms Anderson it was rude. When everybody had gone Ms Anderson would apologise to Ms Dahiya saying her voice was not good or it was a high tone and would agree it had not been appropriate. 2

[27] Ms Dahiya did not accept that Ms Anderson generally speaks loudly but rather that she did this sometimes when she was not happy with suggestions, she raises her voice, her voice goes higher and her face gets hostile and red.

[28] Her statement is that on two occasions Ms Anderson raised her voice towards her during operations meetings. The first occasion was on 1 September 2014 when Ms Anderson was unhappy about changes to the rosters. Ms Dahiya felt humiliated and intimidated by how Ms Anderson spoke to her. Ms Anderson raised her voice and became red in the face and was not listening to the explanation for the roster changes.

[29] At the 12 September 2014 meeting Ms Dahiya says she began to make a suggestion and Ms Anderson talked over the top of her and said words to the effect of “Gurinder No. We can’t change the shift.”Ms Anderson was red in the face and was speaking really loudly. Ms Dahiya states she felt humiliated by how Ms Anderson treated her at this meeting.

[30] Under cross-examination Mr Dahiya explained that at both meetings this occurred when Mr Swift was present with herself and Ms Anderson. She says that Ms Anderson was angry with her on the first occasion because of the rosters and Ms Anderson raised her voice and she felt intimidated and humiliated. Ms Anderson would not let her speak and Mr Swift had to take over after this.

[31] Ms Dahiya agrees that it is Baptistcare policy that personal phones are not to be used on the floor.

[32] She says in her statement that Ms Din told her she felt intimidated by Ms Anderson and Ms Dahiya told her she could put in a feedback form. Ms Din explained to her the interaction she had with Ms Anderson when she was making a phone call on a tea break.

[33] Ms Dahiya agrees that she was told by others that Ms Anderson made statements such as “Staff with little experience, like our nurses from India” but had not herself heard Ms Anderson say this.

[34] Under cross-examination Ms Dahiya confirmed that she had spoken to Mr Swift and told him that she believed that there were 20 staff members at Bethel who would resign the next day if Ms Anderson had become the Facility Manager. 3

[35] Ms Dahiya in her statement says that after a staff meeting on 26 August 2014 a staff member “Ann” was crying and told her she was upset because Ms Anderson had told her there were no jobs at Bethel for her because she did not have enough experience to work as an enrolled nurse at Bethel and she should look elsewhere.

[36] Ms Dahiya agrees that in her opinion interrupting a medication round in order to assist a patient returned safely to their room was reasonable.

Mr Swift

[37] Mr Swift the Facility Manager also gave evidence. Mr Swift is a physiotherapist by training. He took up his position as Facility Manager in June 2014. Prior to this he had been working on a relieving capacity as a Facility Manager at a number of Baptistcare’s other aged care facilities for an extended period. He has worked for Baptistcare for approximately four years.

[38] In his statement he says he found Ms Anderson difficult to work with. He says she would try to and did intimidate him and other staff. His evidence was that he discussed these issues with Ms Anderson including her raising her voice. 4

[39] His statement was to the effect that staff had put in numerous written and verbal complaints about Ms Anderson’s behaviour and some had become very upset about the way they had been treated by her.

[40] In June 2014 a Bethel staff member, Ms Carter, reported to him her concern that Ms Anderson had spoken to her and another staff member, Ms Cooper, stating that a particular staff member was the leader of the “Filipino Mafia at Bethel.”

[41] On 1 September 2014 he attended a meeting with Ms Anderson and Ms Dahiya. In his statement he says that during the meeting Ms Anderson raised her voice towards Ms Dahiya, had a sharp tone and a hostile facial expression and went red. Ms Dahiya did not respond in a raised tone. He understood she felt intimidated and humiliated by Ms Anderson. He felt Ms Anderson was disrespectful and unprofessional.

[42] In his statement he says that on 4 September 2014 whilst discussing various matters with Ms Dahiya he asked her if she knew why staff had been leaving lately and she advised him that it was Ms Anderson. Ms Dahiya told him that if Ms Anderson had become the Facility Manager she knows 20 staff who would resign the next day. She told him it was impossible to work under Ms Anderson and that she manipulates and bullies staff.

[43] Mr Swift’s evidence is that he attended a meeting of Bethel staff during which Ms Anderson told a particular staff member that she does not have enough experience to be an enrolled nurse there and it would be better for her at a hospital. He says the comment by Ms Anderson made him and other staff member feel uncomfortable. The staff member to whom the statement was directed was clearly upset, humiliated and intimidated by Ms Anderson’s statement. Ms Dahiya later advised him that the staff member involved had come to her and was upset about what Ms Anderson had said at the staff meeting. 5

[44] On 12 September 2014 Mr Swift attended another meeting with Ms Anderson and Ms Dahiya on this occasion to discuss Bethel’s budget. Ms Dahiya provided an example of how they could modify the staffing hours. Ms Anderson immediately responded shutting Ms Dahiya down stating “No, Gurinder”. His statement is that Ms Anderson spoke to Ms Dahiya in a rude and intimidating manner, she was loud and her face went red. He says he felt very uncomfortable in the meeting and subsequently Ms Dahiya put in a written complaint about this incident.

[45] On 29 August 2014 Ms Din put in a written complaint about Ms Anderson stating she felt she had been intimidated by her when she was told not to use her mobile phone whilst on a break and when Ms Anderson interrupted her during a medication round without due cause gesturing with her finger to come to her. Ms Din stated that she felt Ms Anderson was again picking on Filipino staff. Mr Swift’s statement was that when he first investigated this complaint Ms Anderson’s comment to him was “…she is just another one of these princesses” which he thought was an inappropriate criticism by Ms Anderson.

[46] Under cross-examination Mr Swift agrees that he himself has on occasions interrupted medication rounds but says that he would only do this by asking the staff member if it’s okay to speak to them first for a moment.

[47] Mr Swift says that Ms Anderson has received multiple formal warnings. These include:

• A letter of formal warning dated 4 December 2012 which is headed unsatisfactory performance. The letter refers to discussions the then Facility Manager Mr McCowan had with Ms Anderson regarding a number of occasions where she has spoken with other staff members in an inappropriate manner and those individuals has have complained of being bullied. The letter refers to Mr McCowan having previously spoken to Ms Anderson in this regard but without success. The letter refers to a number of other matters but notes that Ms Anderson has been counselled to consider her future actions before entering into any conversation with other staff members.



• A letter of formal warning dated 14 February 2013 which is headed unsatisfactory performance. The letter refers to discussions that then Facility Manager Mr McCowan had with Ms Anderson regarding a number of issues. The letter notes that during a meeting on 6 February 2013 Ms Anderson advised she was not clear about what was inappropriate about her conversations with other staff. The letter goes on to explain that her interactions with other staff have been inappropriate when she has moved towards people and become extremely close when talking to them in a loud manner, when she has criticised clinical staff and told them to change how they conduct their care, when she criticised staff that do not report to her and criticised staff in front of residents and other co-workers. The letter sets out five particular dot points to indicate to Ms Anderson what satisfactory performance includes, one of which is “Not talking to staff in an excessively loud voice.”



• An investigation interview form dated 17 April 2013. The form identifies a possible breach as being “Complaints of intimidation”. Whilst the complaints referred to from staff members largely deal with particular decisions Ms Anderson has taken or direction she has given to particular staff the form includes the following observation “it was explained that even if she did not consider there were problems with her leadership style, it appeared that staff perceived her as being a bully and intimidating...” the notes continue “Debbie indicated that it was unfair that staff are being allowed to say things about her, which she considered to be untrue.”

[48] Mr Swift’s evidence in chief was that a number of times in meetings he had spoken to Ms Anderson about communication and leadership and the importance of being a supportive leader. He talked to her about the influence of power and how that influences the operation and workplace culture in a facility and talked about how coercive use of power is a poor way to lead in a facility. Coercive power is about leading through fear. His evidence was that that is how he felt Ms Anderson led, with coercive power. He says that prior to becoming Facility Manager he had received seven verbal complaints and eight written complaints and there were 16 written complaints from staff on her file which involve multiple examples of Ms Anderson intimidating staff in the workplace. 6

[49] The evidence is Ms Anderson has been provided with a range of training by Baptistcare including particular training in culturally appropriate care, managing performance, dispute resolution and dealing with complaints and workplace bullying and harassment. Ms Anderson has successfully completed a Certificate IV in Frontline Management. 7

[50] Mr Swift’s statement is that on 25 September 2014 he met with Ms Anderson regarding the performance concerns that had been previously notified to her. At that meeting she attended with Ms Kate Jones as her support person. Mr Swift states that during the meeting he found Ms Anderson’s answers and behaviour did not demonstrate that she recognised that there was any problem with her behaviour. His statement was it was particularly concerning when she gave a demonstration of her shouting to show that she had not shouted in the meetings. Under cross-examination Mr Swift explained he felt this was an attempt by Ms Anderson to intimidate him during this meeting. 8

[51] After the various concerns were discussed with Ms Anderson the meeting ended. Mr Swift then discussed the situation with Ms Larson Baptistcare’s human resources representative. He considered that Ms Anderson had not raised any new issues that warranted further investigation. It was then decided that her employment would be terminated.

Findings on the evidence

[52] Having considered all of the witness evidence I accept the evidence of Ms Dahiya and Mr Swift who both attended the operations meetings on 1 and 12 September 2014 and prefer their evidence over Ms Anderson’s evidence as to how she behaved at these meetings.

[53] Consequently I make the following findings.

[54] At the operations meeting on 1 September 2014 Ms Anderson did raise her voice to Ms Dahiya in a manner that was disrespectful, unprofessional and unwarranted. I find that Ms Dahiya felt intimidated and humiliated because of Ms Anderson’s conduct.

[55] At the operations meeting on 12 September 2014 Ms Anderson did raise her voice to Ms Dahiya in a manner that was disrespectful, unprofessional and unwarranted and prevented Ms Dahiya from continuing to speak. I find that Ms Dahiya felt humiliated by Ms Anderson’s conduct.

[56] Whilst there is some hearsay evidence that Ms Anderson spoke about nurses from India in a derogatory way the direct evidence, which is Ms Anderson’s denial that she did this, is to be preferred. I do not accept that Ms Anderson spoke about nurses from India in a derogatory way.

[57] I find the evidence is that Ms Anderson did on 25 August 2014 tell Ms Din not to speak on her mobile. This was an appropriate direction because whilst Ms Din was entitled to use her mobile phone on her break Ms Din was ignoring Bethel policy to not use a personal phone on the floor where she could be seen by residents and others in the facility.

[58] I find that Ms Anderson did interrupt Ms Din whilst she was doing a medication round however Ms Anderson did so for good cause in directing Ms Din to attend to a resident who needed assistance.

[59] I find that Ms Din made a written complaint to Mr Swift to the effect that she believed Ms Anderson was picking on her because she was Filipino. Ms Din was not called as a witness by either party. Considering the evidence of Mr Swift and Ms Dahiya and recognising it is not direct evidence I do accept that Ms Din felt intimidated and was upset by these interaction with Ms Anderson on 25 August 2014.

[60] I am also satisfied that Ms Anderson, at a general staff meeting, told one employee that she did not have enough experience to be an enrolled nurse at Bethel and it would be better for her if she went to a hospital. I accept Ms Anderson’s explanation that this was an assessment of what would be in that staff members best interests in terms of professional development, however I also accept the evidence of Mr Swift and Ms Dahiya that the employee in question was upset and crying as a consequence of Ms Anderson having made this statement in front of a large number of other staff.

The legislation

[61] The particular matters the Commission is required to consider when determining whether a dismissal was harsh, unjust or unreasonable are set out in section 387 of the Act below.

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Valid reason for the dismissal

[62] On 25 August 2014 Ms Anderson in directing Ms Din firstly not to use her mobile phone and separately and later to attend to a resident while she was undertaking a medication round did so, with good cause however, she did this in a manner that caused Ms Din to feel intimidated and as though she was being picked on. This was a valid reason for Miss Anderson’s dismissal.

[63] Ms Anderson at two separate meetings on 1 and then 12 September 2014 raised her voice towards the Acting Business Manager Ms Dahiya in a manner that was disrespectful, unprofessional and unwarranted and caused Ms Dahiya to feel intimidated and humiliated. Ms Anderson’s conduct at each of these meetings separately was a valid reason for her dismissal.

Notification of that reason

[64] Baptistcare did notify Ms Anderson by letter on 23 September 2014 that they wished to meet with her to discuss concerns about her conduct at the operations meetings on 1 and 12 September 2014 and her behaviour towards Ms Din on 29 August 2014.

Opportunity to respond to the reason

[65] A meeting was held on 25 September 2014 at which time Ms Anderson had an opportunity to respond to all of the reasons that Baptistcare had mentioned in their letter of 23 September 2014. Ms Anderson at that meeting had an opportunity to provide a response to the issues.

Refusal of a support person

[66] There was no refusal of a support person.

Warnings for unsatisfactory performance

[67] The reasons for dismissal in this case were not to do with the performance of Ms Anderson’s duties but rather her conduct in inappropriately interacting with other employees.

Size of the enterprise and dedicated human resource specialists

[68] The organisation is a large employer with dedicated human resource management professionals. The procedure followed was appropriate given this.

Other matters

[69] Had Baptistcare considered it they could have put Ms Anderson on notice in their letter dated 23 September 2014 that they wanted to discuss with her the statement she made to the employee at the general staff meeting that caused that employee to subsequently become upset. On the evidence whilst Ms Anderson may have had a reasonable basis for making the statement she did it was highly inappropriate for her to do so at this meeting in front of other employees. Such a statement should have only been made to an employee in private and with a full explanation as to why Ms Anderson held the view she expressed. At the least Ms Anderson had not fully communicated the reasons for her judgements to the extent that neither the employee herself, the Business Manager nor the Facility Manager considered Ms Anderson’s comments as anything other than hurtful. If this matter had been raised by Baptistcare with Ms Anderson prior to dismissal it potentially would also have been a valid reason for her dismissal subject of course to any explanation Ms Anderson may have given.

[70] Ms Anderson has been employed for less than three years.

[71] Ms Anderson has received a number of formal warnings and counselling that are directly relevant to the valid reasons for dismissal in this matter. In December 2012 she was provided with a formal warning about the inappropriate manner in which she spoke to employees such that they complained of being bullied. A further formal letter of warning and February 2013 again refers to the appropriateness of her conversations with staff and specifically refers to her not talking to staff in an excessively loud voice. Finally an investigation interview in April 2013 referred to Ms Anderson needing to consider that there were problems with her leadership style because staff perceived her style as bullying and intimidating. Quite clearly the valid reasons detailed above are just the most recent examples of the inappropriate manner in which Ms Anderson interacts with staff members.

[72] The challenge to Mr Swift’s decision to dismiss Ms Anderson on the basis he was a witness to two instances of her inappropriate behaviour and so had a conflict of interest has no validity.

Conclusion

[73] Ms Anderson I accept had good reasons on both occasions when she spoke to Ms Din on August 25 September 2014 however the manner in which she interacted with Ms Din caused her to be upset and she did make a formal complaint to Mr Swift. It is of course not unknown for staff to complain that their supervisor has behaved unreasonably towards them in order to divert attention away from the employee’s own failures but in this case I have accepted that Ms Din had been upset by the manner in which Ms Anderson dealt with her. Unfortunately there is a significant history here that indicates Ms Anderson’s interactions with staff not infrequently cause some staff to be upset.

[74] Ms Anderson’s conduct during the operations meetings on 1 and 12 September 2014 caused Ms Dahiya to feel intimidated and humiliated. On neither of these occasions was there any justification for Ms Anderson’s conduct.

[75] On three separate occasions over this period of less than three weeks Ms Anderson’s interactions with other employees caused them to be upset.

[76] Ms Anderson has been formally warned on a number of previous occasions about the manner in which she interacts with other employees. Over a long period she has either been unwilling to, or unable to, change in order to ensure the manner in which she interacts with other employees is acceptable. These most recent instances demonstrate this pattern of unacceptable interactions is quite likely to continue if she remains at Bethel.

[77] In all of these circumstances Baptistcare’s decision to dismiss Ms Anderson was not harsh, unjust or unreasonable.

[78] Given my decision above there is no need to consider further the alleged breaches of the medication management policy or alleged incorrect reporting of medication incidents.

[79] The dismissal of Ms Anderson was not unfair and this application will now be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

E Hadrys of the Australian Nursing and Midwifery Federation for the applicant.

D Larson on behalf of the respondent.

Hearing details:

2015.

Perth:

May 25 and September 16.

 1   Transcript at PN82.

 2   Ibid., at PN441 to PN454.

 3   Exhibit R1 at paragraph 16.

 4   Transcript at PN272 to PN277.

 5   Exhibit R1 at paragraph 20 and Transcript at PN321.

 6   Transcript at PN255.

 7   Exhibit R8.

 8   Transcript at PN184.

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