E. Keirl v Wickro Pty Ltd T/A Homestyle Aged Care Services - Sea Views Manor

[2010] FWA 4762

Note: An appeal pursuant to s.604 (C2010/4311) was lodged against this decision - refer to Full Bench decision dated 27 August 2010 [[2010] FWAFB 6307] for result of appeal.

[2010] FWA 4762

FAIR WORK AUSTRALIA

DECISION

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

E. Keirl
v
Wickro Pty Ltd T/A Homestyle Aged Care Services - Sea Views Manor
(U2010/6567)

COMMISSIONER FOGGO MELBOURNE, 28 JUNE 2010

Termination of employment - arbitration.

[1] This is an application lodged pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mrs Elizabeth Keirl (the Applicant) seeking remedy for her alleged unfair dismissal from employment with Wickro Pty Ltd t/a Homestyle Aged Care Services (the Respondent). The Applicant worked as a Division 2 nurse at one of the Respondent’s nursing homes, Sea Views Manor, commencing in 2005 and her employment was terminated on 17 February 2010.

[2] The Employer’s Response filed by the Respondent claimed that the reason for the dismissal was for theft of cleaning products. The matter was the subject of a conciliation conference on 22 March 2010. At the commencement of the proceedings on 8 June 2010 the parties agreed that a further attempt at conciliation might be beneficial. Commissioner Blair assisted but the parties were unable to reach an agreement and the application proceeded to arbitration.

[1] The Applicant was represented by Mr C.L. McCoy of Counsel. The Applicant gave evidence as did Mrs Barbara Perry and Ms Nicole Walker. Ms Dorothy Miles and Ms Sharina Lynam were the subject of Orders to Attend on behalf of the Applicant and gave evidence.

[2] The Respondent was represented by Mr M. Rahilly of Counsel. Evidence was given by Mrs Rhonda Lewis, Ms Ingrid Weber, Ms Gloria Blair and Ms Maria Houlahan for the Respondent.

[3] The Applicant stated that she was telephoned by Ms Sharina Lynam, the Director of Nursing (DON) at Sea Views Manor on 4 February advising her not to attend for work on her rostered shift that evening as she was being stood down pending an investigation of allegations of theft. She stated she was not told during the phone call what she was accused of stealing but rang the Australian Nursing Federation (ANF) who made enquiries and told her that the alleged theft was of cleaning products.

[4] The DON stated that Mrs Keirl would receive a letter by registered post to explain the allegations. That letter dated 4 February 2010 was, according to the respondent, sent that day by registered post but the registered mail receipt returned to the sender 1 are dated 10 February 2010 which shows that the letter was probably not collected until 9 February 2010.

[5] The letter from Ms Houlahan the Operations Manager of Homestyle Aged Care 2 stated the allegation as “theft of company property – cleaning products from Sea Views Manor on January 8th, 2010.” Attached to the letter were statements from two employees regarding the alleged incident of the theft. The names were blocked out but the specific allegations regarding the incident were complete.

[6] The Applicant stated that Ms Lynam had rung her on 3 February 2010 regarding another matter but had not mentioned anything to her about the allegations at that time. The ‘other matter’ which has been raised throughout these proceedings, related to the same night shift worked by the Applicant. The shift commenced in the evening of 8 January and concluded on the morning of 9 January 2010. Near the commencement of the shift one of the nurses allegedly presented for work under the influence of alcohol and was sent home.

[7] As part of the investigation into that incident those on duty were asked to make statements. Ms Lynam had asked the Applicant three times, the last time being in the phone call on 3 February 2010, for her statement but the Applicant had refused to provide her with one on the basis that she did not want to make a statement about the PCW (Personal Care Worker). The Applicant alleges that during the phone call Ms Lynam stated that if Mrs Keirl did not put the letter under her door that afternoon “I could be sacked because I wasn’t following my duty of care” to the residents 3.

[8] The statement was provided by the Applicant. The investigation regarding the PCW being under the influence of alcohol was duly completed, the allegations substantiated and the employee dismissed. This event is only linked to the incident involving Mrs Keirl in so far as it occurred in the same shift of 8/9 January 2010 when it was alleged she stole some cleaning products. The incident involving the Applicant occurred between 5.00 a.m. and 6.00 a.m. approximately.

[9] The latter from Ms Houlahan asked the Applicant to attend a meeting on 10 February 2010 to discuss the allegations against her and she was advised to bring her representative to the meeting. Mr Dwyer from the ANF accompanied the Applicant. The statements from the two PCW’s were read out and their identities became known to the Applicant and Mr Dwyer. The Applicant denied the allegations. She stated that Ms Lynam said that she had taken an orange bucket with the products but the statements did not show this, that her innocence would be proven by the CCTV tapes and that for her cleaning jobs outside Sea Views Manor the cleaning products were provided by the clients so there was no reason for her to steal any cleaning products. She also stated that the Special Needs Unit (SNU) where she was working on 8 January 2010 only had one bottle of the Orange cleaning product she was accused of stealing and so she could not possibly have had “an armful” of the product as alleged.

[10] The Applicant stated that it was common knowledge that she did house cleaning jobs. She stated that she was wrongly accused of stealing the products because the two PCW’s who made the allegations wanted her sacked so that they could get more hours of work. She also stated that Ms Gloria Blair, the staff member in charge of the night shift on 28 January 2010, the shift on which the employer became aware of the alleged theft, was personally antagonistic to her and Mrs Keirl had asked to be shifted to a different shift so they did not work together.

[11] At the time the alleged incident with the Applicant occurred, Sea Views Manor was in lockdown mode due to an outbreak of gastroenteritis. The evidence and submissions show that in a lockdown situation access to the facility is limited. In January 2010, 91 of the 120 residents were infected as were 40 staff. This context is relevant for a number of reasons. There was discussion regarding accessing the CCTV footage and that it may have been able to be viewed if an external IT person had been able to try to retrieve the data. One suggestion was that he/she could not access the facility during lockdown. On all the evidence it appears that the CCTV footage overrides its tapes every six days. By the time that the allegations against the Applicant surfaced on 28 January, the CCTV tapes of 8 January 2010 no longer existed.

[12] The lockdown at Sea Views Manor was in place for most of January 2010. According to Ms Houlahan’s advice three quarters of the facility was affected, including 78 residents and 40 staff and the remained for 22 days 4. The lockdown was a very busy time for staff given the number of residents and staff who were ill and the additional care required by residents and the additional cleaning required to be done.

[13] This is relevant because members of staff whether Registered nurses, PCW’s or administrative staff were required to undertake certain precautions in their every day movements so that the infection was not spread. Family visitors to the facility were stopped as was access to the facility by trades people and the public generally. Once the facility was locked down Agency staff working there at that time could only to work at Sea Views Manor.

[14] In cross-examination the Applicant stated that she worked with Agency staff PCW’s Ingrid Weber and Rhonda Lewis on the night shift on 8 January 2010. She stated she had only ever worked with Ingrid Weber on a few shifts and had never worked with Rhonda Lewis until that shift.

[15] Mrs Barbara Perry, was a Registered Nurse Division 1 and employed at Sea Views Manor for one shift a fortnight. She was the charge nurse on duty on 8 January 2010. She provided a Statutory Declaration 5 and gave oral evidence.

[16] Mrs Perry stated that Ms Lynam had rung her early in February 2010 to discuss the events at the beginning of the shift on 8 January regarding the employee who was allegedly under the influence of alcohol. Mrs Perry stated the person had attended but stated she was feeling unwell and asked to go home. Mrs Perry stated she looked pale and the employee went home. It was understood between them that she would do so on leave without pay.

[17] Mrs Perry became aware of the allegations regarding the Applicant when Mrs Keirl rang her about the same time to tell her the allegations which had been made against her. She stated that the Applicant had told her the time at which she allegedly took the cleaning products and asked Mrs Perry if she could remember working with her between 5.00 a.m. and 6.00 a.m. on the morning of 9 January 2010.

[18] Mrs Perry’s evidence was that she arrived in the SNU at 5.00 a.m. and the Applicant was working with Ms Miles. She stayed in the SNU until 6.00 a.m. and spoke to the Applicant prior to leaving the area. She stated that to her knowledge the Applicant had not left the area although she had not seen her the entire time. However she stated that the Applicant was very strict about leaving the area and always told the charge nurse if she was leaving the unit. She stated that when the Applicant went for a smoke or a drink or to fax something she would always advise where she was going. Additionally, Mrs Perry stated that when the Applicant went outside to smoke she did not go out the front door to the car park but to a different area.

[19] Mrs Perry stated that Ms Lynam asked her questions regarding the Applicant’s movements in a manner which she believed “was to narrow down the timeframe, so that they could prove Elizabeth’s guilt” and that if she provided a written statement it “would not prove the guilt, but that it would be formed around that to prove her guilt.” 6

[20] Mrs Perry stated that she felt harassed by Ms Lynam on 15 February 2010 because Ms Lynam rang her three times on that day when she was asleep. The evidence was amended that Ms Lynam rang her twice and Ms Mandy Newbold, at Ms Lyman’s request, rang her on the third occasion. Mrs Perry stated that after she had provided her knowledge of the Applicant’s whereabouts Ms Lynam was insistent that she make a time on that day for her appraisal even though she stated that it was arranged for the following week.

[21] Mrs Perry stated “I considered the staff appraisal as a veiled threat coming at the same time as I had advised her that I could account for some of Elizabeth’s time on that shift.” 7

[22] Ms Nicole Walker had been employed as a Personal Care Worker at Sea Views Manor since 2007. She had no direct knowledge of the events of 8/9 January but made accusations that Ms Blair was capable of lying. She also stated that she had seen Gloria Blair harass the Applicant and that the Applicant changed shifts because of this.

[23] Little if any weight is given to the evidence of Ms Walker as she had no direct knowledge of the allegations of theft against the Applicant and her evidence centred on events settled in May 2006 when the Applicant changed shifts. She herself had an issue regarding alleged abuse by Ms Blair in a phone call. Given she stated she had recorded the conversation it is surprising that she had not produced it before Ms Lynam.

[24] Ms Dorothy (Dot) Miles was also working at Sea Views Manor on the shift on 8 January 2010. She was subpoenaed to appear and was highly critical that Mr McCoy had contacted her twice at home seeking her appearance. Her oral evidence substantiated her written statement 8 that she had been on the same shift as the Applicant but had worked with her for some of the shift.

[25] Ms Miles stated that she was working alone bathing a resident for some of the period between 5.00 a.m. to 6.00 a.m. and said she did not observe anything or did not have any information regarding the allegations against the Applicant.

[26] Ms Sharina Lynam, Director of Nursing at Sea Views Manor gave evidence. She was responsible for conducting the investigation into the allegations regarding the Applicant’s removal of cleaning products and reported to Ms Houlahan the Operations Manager. She also spoke to and met the organiser from the ANF on several occasions.

[27] She stated that she received an email on 28 January from her administrative staff member to the effect that she was aware that an agency PCW had mentioned to the Division 1 nurse on duty that evening (presumably 27 January 2010) that she had observed the Applicant taking cleaning products while on shift on 8 January 2010. The charge nurse was Gloria Blair who told the PCW to put the observation in writing on a Comments and Information Form.

[28] Ms Lynam spoke to Ms Blair on the same day, 28 January. She stated Ms Blair confirmed that she had not had anything to do with the issues but had heard about the two incidents on the 8 January 2010 shift from agency staff who worked that night.

[29] Ms Lynam also spoke to Mrs Perry who stated she had no knowledge of the incident regarding removal of cleaning product, to Mrs Miles who said she had no knowledge, to Mrs Keirl who denied the allegation and to the two agency staff who checked with their agency first but provided a statement in writing as requested by Ms Lynam.

[30] Mr McCoy made repeated attempts in his questioning of Ms Lynam to raise concerns that the “informants” or “complainants” were Agency staff who as casual workers would benefit from having a permanent employer sacked and that the permanent staff was being “blackguarded by casual staff from an outside agency.” 9

[31] He also commented that the persons who made the allegations were “only agency staff” 10 a comment repeated several times in what the Tribunal believed was a strategy by Mr McCoy to demean the two employees, Ms Weber and Ms Lewis in particular, and ensure that the Tribunal understood their position was far inferior to the permanent employees of Sea Views Manor and far inferior to registered nurses.

[32] I say no more about this line of questioning, or attack, other than to note that in the aged care area, a range of people are closely involved in the delivery of care. The academic qualifications required by registered nurses are more rigorous than PCW’s and as expected their skill level is of a higher order. Nevertheless there is a high degree of co-operative work required on shift. The agency staff are not “only PCW’s” or “just PCW’s” or “just agency staff”. They are employees who have an important role in the industry and deserve better than the attitudes unfortunately exhibited from several witnesses during this case. Such values and prejudices are not conducive to a harmonious workplace.

[33] The allegation that the two agency staff members fabricated the allegation against the Applicant in order to gain additional casual work was refuted by the Respondent who provided an uncontradicted submission to the effect that neither Ms Lewis nor Ms Weber had applied for any of the advertised work available since February 2010.

[34] Ms Lynam rejected Mr McCoy’s proposal that she had threatened the Applicant with breaching her duty of care unless she furnished a written statement regarding the alcohol related incident on 8 January 2010. She agreed that when she spoke to the Applicant regarding this employee she had received information regarding the removal of product but did not raise it with the Applicant because she had not spoken to the other people who had worked with Mrs Keirl on the 8 January shift and was still investigating the incident relating to her. Ms Lynam confirmed that it took until 4 February 2010 to receive all the statements in writing.

[35] She also confirmed that the respondent sent the letter standing the Applicant down on 4 February and enclosed the allegations which had been made although blacked out the names of the persons who had written the statements.

[36] Ms Lynam stated she was the person who had looked at the CCTV tapes to establish whether there was any footage for the evening shift on 8 January 2010 but could not find it and was subsequently advised that the tapes override every six days. She stated that she did not believe this feature of the CCTV system was widely known and she had only ever had to check the tapes for incidents which had occurred in the past few days not over three weeks prior as in this case.

[37] Ms Lynam stated that the Applicant had denied the allegation of theft at the meeting on 11 February and as a result of the ANF representative’s request at the meeting for the statements to be made as Statutory Declarations, she undertook to get such declarations from Ms Weber and Ms Lewis. She confirmed that she spoke with Mrs Perry on 15 February and Mrs Perry said she was with Mrs Keirl between 5.30 a.m. to 6.30 a.m. and would provide a Statutory Declaration to that effect.

[38] Ms Lyman’s evidence was different to Mrs Perry’s regarding the provision of the Statutory Declaration and the exchange on the telephone regarding Mrs Perry’s appraisal. Ms Lynam stated after she spoke to Mrs Perry about the Applicant’s movements she asked Mrs Perry to put her knowledge as outlined to Ms Lynam in writing. She rang Mrs Perry a second time to ask her to make the statement a Statutory Declaration because the union had asked for the statements as Statutory declarations.

[39] Ms Lynam stated she said to Mrs Perry “While I’ve got you on the phone, your appraisal is overdue. Am I able to book a time with you?” She stated that Mrs Perry agreed and 22 February 2010 was agreed as the time for the appraisal 11. Ms Newbold rang Mrs Perry latter in the day at Ms Lyman’s request because she had not received the Statutory Declaration from Mrs Perry and the union had specifically requested Ms Lynam to follow up Mrs Perry and Ms Miles regarding their memory of the shift on 8 January.

[40] Ms Lynam stated that Ms Miles recalled the first event of the shift regarding the alcohol and said she worked with the Applicant in SNU between 4.30 a.m. and 5.30 a.m. and had no knowledge of any other incident. Ms Lynam stated that “we had a discussion and we decided that two agency nurses who had made sworn statements that they saw Elizabeth take the chemicals; the RN (Mrs Perry) didn’t know anything; Dot Miles didn’t know anything and they would have no reason to lie, so on probability we took the statements and we terminated Elizabeth’s employment, yes.” 12

[41] The first witness for the Respondent was Ms Ingrid Weber, one of the agency nurses. She confirmed that she received a message from her agency to contact Ms Lynam who asked her if she had seen any incidents on the 8 January shift. She spoke to her agency before speaking with Ms Lynam and rang Ms Lynam back and told her about the two incidents. She stated Ms Lynam asked her to put what she saw in writing 13. She confirmed that at a later time she was asked to make a Statutory declaration regarding what she had observed which she did.14

[42] Ms Weber agreed that she had not reported the theft on the shift it happened because they were short staffed and busy and “secondly, being an agency – not everyone always listens to you. They just dismiss you.” 15

[43] She confirmed that she worked at Sea Views Manor for three or four weeks during the gastroenteritis outbreak to replace staff and that she had worked with the Applicant perhaps 10 months earlier. She stated that the 8 January shift was very busy due to the gastro outbreak and that the time she saw Mrs Keirl with the cleaning products was between 5.00 a.m. and 6.00 a.m. or thereabouts. This was in the main consistent with her written statement which stated she saw Mrs Keirl between 5.00 a.m. and 5.45 a.m..

[44] Mrs Weber stated that when she went for a drink around that time she looked up and saw Mrs Keirl near the door which leads to the low care unit through which the front door is accessed. She had cleaning products on her arm. Mrs Weber stated that unless the Applicant had said anything to her she would have thought she was going to the low care unit. She stated that Mrs Keirl saw her, giggled and stated that she had a house to clean after work or words similar to that but definitely that she had a house to clean. Mrs Weber confirmed that she had made an assumption regarding where Mrs Keirl was going but thought given she stated she had a house to clean that she was taking the products to her car and she was near a door which eventually led to the carpark 16.

[45] She stated that she could not recall having a discussion with Ms Lewis after the Applicant spoke these words and she stated that she had not seen the Statutory Declaration made by Ms Lewis. Mrs Weber also stated that she had previously worked with the Applicant and knew from something she had mentioned on that occasion that she cleaned houses.

[46] Mrs Weber stated that until she was rung about the shift on 8 January she did not give it another thought. She went home immediately after that shift as she stated she was tired but she clearly recalled the exchange with the Applicant on that evening when asked about it three weeks later. Mrs Weber objected to Mr McCoy’s allegation that she was lying and had fabricated the entire story. She stated that she had no reason to lie as she had her own jobs and didn’t work at Sea Views Manor 17.

[47] Ms Rhonda Lewis, the other agency person on the shift of 8 January 2010 gave evidence. She confirmed that she had provided the written statement to Ms Lynam at the end of January and a Statutory Declaration dated 11 February 2010 18 regarding the incident involving the Applicant. Ms Lewis confirmed that she had worked many shifts at Sea Views Manor between 9 and 27 January and on several occasions had worked with Gloria Blair as the charge nurse.

[48] She stated that the PCW’s usually took their tea breaks together. She recalled having a conversation with Ms Blair on 27 January regarding the staff member who was allegedly drunk. She clearly recalled the incident because she stated that the person had attended for the shift 20 minutes late and she believed she was drunk. She disagreed with Mrs Perry’s assessment that the person was sick. At the end of the conversation with Ms Blair, Ms Lewis stated that she said to her “And there was something else that I did witness that day, but I’m not going to do anything about it, because we’re agency.” 19

[49] Ms Lewis stated that sometimes people brushed aside what agency staff said. She told Ms Blair that she had seen the Applicant take bottles of cleaning product. Ms Blair stated to her that she should “do the right thing” and report it because it constituted theft.

[50] Ms Lewis was questioned extensively on the events of 8 January. Her evidence showed that her first statement was incorrect as it put Mrs Keirl going to the cleaning cupboard and being in the vicinity of the front door as contemporaneous events but they were not. It was established that Ms Lewis observed Mrs Keirl going to the cleaning cupboard around 1.00 a.m. and the exchange between them relating to the Applicant removing the cleaning products occurred later after 5.00 a.m..

[51] Even though she had not mentioned it in either statement, Ms Lewis was adamant that when she saw Mrs Keirl heading in the direction of the front door she said to her as a joke because they were so busy, “Hey, where do you think you’re going? It’s too early to go home yet?” She stated that Mrs Keirl said “I’m just going to my car.” 20 Ms Lewis stated that earlier in the evening in the SNU Mrs Keirl said that she left her shift to go to her house cleaning jobs.

[52] Ms Lewis confirmed that she was getting a drink with Ms Weber when this incident occurred. She stated that she later said to Ms Weber “How could she do it as it is not worth loosing your job for stealing a few dollars worth of cleaning products let alone anything.” 21

[53] Ms Lewis was questioned on the operation of the CCTV cameras, as was Ms Weber. Neither witness seemed to know much about the CCTV cameras and if Ms Lewis knew more about where cameras might be, I accept that neither of them knew that the tapes overrode very six days. In fact Ms Lewis thought that it should be possible to look up the tapes to find any information required from tape storage 22.

[54] It was the evidence of Ms Lewis that she saw Mrs Keirl with three bottles of Orange cleaning product in her arms. It was also her evidence that she and Ms Weber were sitting together side by side having a cool drink and that they had an unobstructed view of the Applicant with the bottles of cleaner. Ms Lewis stated that there was still a lot of work to be done from the gastro outbreak and even if she accepted Mr McCoy’s statement that it was not as widespread as previously and therefore not as much cleaning was required to be done, they were still busy with additional duties due to the gastro such as cleaning and rehydrating the residents.

[55] Ms Lewis did not hear Mrs Keirl respond to Ms Weber as alleged, that she said “I have a house to clean.” Ms Lewis stated this was said by Mrs Keirl earlier in the evening. She denied the allegation of Mr McCoy that the reason for the confusion was that she had made up the entire story about Mrs Keirl. She also stated she did not know what Ms Blair did after the discussion except that later she was asked to make the statement in writing.

[56] Throughout several different phases of the cross-examination of Ms Lewis she was asked who bought up the incident of Mrs Keirl on 8 January. She continually stated she raised it but in the context that she was asked about the other employee who was sent home and she then volunteered the incident concerning Mrs Keirl. Ms Lewis stated she had never heard Ms Blair “run Mrs Keirl down” 23.

[57] Ms Gloria Blair, the registered nurse on duty and in charge on 27 January stated that a conversation arose, instigated by Ms Lewis to the effect that she was lucky she wasn’t on shift on 8 January when a nurse was sent home under the influence of alcohol. She said Ms Lewis also mentioned in passing that also on that night she had seen Mrs Keirl removing spray bottles and a bucket from the cleaning cupboard. She told Mrs Lewis to put the incident in writing in a Comments and Issues form.

[58] She stated that Ms Lewis said she and Ms Weber had decided not to do anything about it although they were going to mention it to the agency. Ms Blair stated she told them the agency had nothing to do with the incident and that she had a duty of care to report it now that she had become aware of it and that the process was Ms Lewis should put down what she saw in writing. Ms Blair stated she told the Office Manager and the cleaner at the end of shift about the alleged theft and that a written statement was being made. That she stated was the end of her involvement in the incident involving Mrs Keirl.

[59] Ms Blair stated she did not know that Mrs Keirl had put in a complaint against her and thought that the shift change of several years ago was because of Mrs Keirl had her house cleaning work. She stated they had nothing to do with each other. In relation to Ms Walker’s statements about Ms Blair bullying and harassing Mrs Keirl, Ms Blair stated that she did not know what Ms Walker had said and that she and Ms Walker did not have a problem except Ms Walker required instruction on some jobs and she was “rather confrontational” 24.

[60] The last witness for the respondent was Ms Maria Houlahan, Operations Manager, Homestyle Aged Care Services. She provided an witness statement 25 and gave evidence on her actions since she had carriage of the matter. She provided background regarding the gastro outbreak and confirmed the facility was in lock down for 22 days throughout January 2010.

[61] Ms Houlahan stated she received an email from Ms Newbold alleging that Mrs Keirl had been involved in taking cleaning product from Sea Views Manor. She stated that the written statements required from Ms Lewis and Ms Weber were provided on 28 January and 1 February respectively. On 4 February she wrote to Mrs Keirl saying she was suspended on full pay as a serious allegation had been made against her and an investigation would be carried out.

[62] She provided copies of the allegations without the name of the authors and asked that Mrs Keirl attend a meeting on 10 February 2010 and bring a representative with her. Ms Houlahan stated that the meeting lasted for approximately an hour and was attended by herself, Ms Claire Dewan and Ms Sharina Lynam for Sea Views Manor and Mr Dwyer from the ANF with Mrs Keirl. Mrs Keirl denied the allegations and she said stated that there may have been some issue because the two agency nurses had worked with her daughter at several other facilities. It was agreed that the two agency nurses would be asked to put their allegations into Statutory Declarations and these would be provided to Mr Dwyer.

[63] Ms Dewan, Ms Houlahan and Ms Lynam were present when Ms Lewis and Ms Weber were rung to advise why they were being asked to make Statutory Declarations and explaining the matter could end up at FWA for conciliation or mediation. Ms Houlahan said both indicated they were comfortable with this.

[64] Ms Houlahan stated that usually only the people involved in making allegations were involved but the next day Mr Dwyer asked that Ms Miles be interviewed regarding working with Mrs Keirl on 8 January. Ms Lynam rang Ms Miles and asked about her movements and she confirmed she was in the SNU between about 4.30 a.m. and 5.30 a.m. and assisted with the round and answered buzzers and attended to showering.

[65] Mr Dwyer was advised of this. A further request was made that Mrs Perry be interviewed regarding the allegation against Mrs Keirl. Ms Houlahan recounted what she had been told by Ms Newbold and Ms Lynam regarding the investigation including the response from Mrs Perry that she had sought legal advice and would not be making a statement and that she resigned in a separate letter that same day.

[66] Ms Houlahan stated that at this point she had Statutory Declarations alleging the theft of the cleaning products and nothing to support Mrs Keirl’s view. She emailed the Statutory Decarations plus some notes from other staff members to Mr Dwyer prior to the termination being enacted. She stated she heard nothing back directly or via Ms Dewan from Mr Dwyer and that she terminated Mrs Keirl’s employment. She stated “I made the only decision I could make, based on the balance of probabilities and that was the facts before me.” 26

[67] In cross-examination Ms Houlahan told Mr McCoy that she considered the Statutory Declarations to be a legal document and she believed the allegations to be true. She answered many questions from Mr McCoy relating to the differences on some of the issues between the original statements made by Ms Weber and Ms Lewis, their Statutory Declarations and the oral evidence before the Tribunal. Ms Houlahan stated that the wording was different but the intent the same and she did not believe there to be discrepancies in the information.

[68] Ms Houlahan strenuously denied the proposition from Mr McCoy that she had not sought relevant information regarding Mrs Keirl’s whereabouts on the 8 January from the alibi’s who had been suggested. She restated that Mrs Miles had not seen anything and that Mrs Perry “backed away from providing any statement” regardless of whether she had seen something or not 27.

[69] Ms Houlahan did not see anything untoward in the fact that the allegations came out three weeks after the alleged event because of the manner in which they arose and because of the extremely busy time during the lockdown. Having been appraised of the allegation she stated she did everything she could to carry out a proper investigation together with Ms Lynam and everything asked by the union was followed up.

[70] Ms Houlahan rejected the proposition raised with her by Mr McCoy that sacking Mrs Keirl would save money for the facility because a personal care worker could be employed at a cheaper rate. She stated that the DON’s dictated the skill mix required based on the care required by residents not her as the HR Manager 28.

Conclusion

[71] Section 387 of the Act is in the following terms:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[72] The Applicant’s employment was terminated for serious misconduct. It was alleged that she took cleaning products from her employer without authority during a shift on 8 January 2010. The Applicant denied the allegation. The primary submission on her behalf was that the allegation had been fabricated by two PCW’s, Ms Weber and Ms Lewis, at the instigation of Ms Blair.

[73] It is the evidence of the Applicant and Ms Blair that Ms Blair did not witness the events of 8 January 2010. The evidence of Ms Blair and Ms Lewis was that in a general discussion on shift on 27 January regarding the dismissal of the PCA for alcohol abuse on 8 January 2010, comments were made to the effect that it was a memorable shift because that was not the only incident that shift because Ms Lewis and Ms Weber had witnessed another staff member, the Applicant, removing cleaning products and taking them to her car.

[74] The role Ms Blair played relevant to the allegations made against the Applicant from 8 January 2010 was that she reported the incident to the office manager at the end of her shift on 27 January and mentioned the incident to the cleaning staff the following day. She asked Ms Lewis to report the incident in writing on a Comments and Issues form which is then dealt with by management. Ms Weber was later asked what had occurred.

[75] The motive which the Applicant attributed to Ms Blair in orchestrating the complaints against her, allegedly arose because the Applicant had complained about Ms Blair bullying her and on one occasion verbally abusing an elderly resident and Ms Blair was continuing the years of harassment against the Applicant 29. The evidence fails to support this allegation. It is certainly factual that Mrs Keirl had complained about Ms Blair and asked to be moved to a different shift so they were not required to work together. She had also wrote a note to be placed on her own file to the effect that there had been problems. The Applicant stated that this was in case Ms Blair harassed her after that time. The shift change occurred in May 2006.

[76] Ms Blair and the Applicant did not work together after that time. They did not socialise outside work. They had nothing to do with each other. There is a complete lack of evidence and logical submissions to explain why after almost four years, Ms Blair would suddenly “coerce these two girls to lie” 30 (that is Ms Lewis and Ms Weber) and fabricate a story that Mrs Keirl stole cleaning products.

[77] The evidence of the Applicant was that prior to 8 January 2010 she had limited communication with Ms Weber and no contact with Ms Lewis. She did not “really know them” 31. The evidence of Ms Lewis and Ms Weber substantiated this. Ms Lewis had worked on several occasions at Sea Views Manor previously but Ms Weber had not worked there prior to the lockdown in January 2010. In this context the allegation made by the Applicant that Ms Weber and Ms Lewis colluded with Ms Blair to make a false complaint against her seems highly improbable. It was suggested by Mr McCoy that they had fabricated the event so that Mrs Keirl would be dismissed and there would be more work available for them as Agency staff.

[78] It was the uncontradicted submission of Mr Rahilly that neither Ms Weber nor Ms Lewis had worked at Sea Views Manor since the February 2010 even though vacancies had been advertised since that time. On the evidence available and this submission, this allegation is not proven and borders on fanciful.

[79] Ms Lewis and Ms Weber both made two statements regarding the Applicant removing cleaning product from Sea Views Manor. Ms Lewis made a written statement addressed to Sharina Lynam on 28 January 2010 and a Statutory Declaration dated 11 February 2010 32. Ms Weber made a hand written note addressed To Whom it May Concern on 1 February 2010 and a Statutory declaration dated 11 February 201033.

[80] In cross-examination Mr McCoy left no stone unturned in seeking to discredit the evidence provided by these witnesses and particularly Ms Lewis. He certainly showed that the witnesses assumed certain actions being taken by the Applicant. For example it was stated by Ms Lewis that the Applicant “went out to her car” 34. Ms Weber stated that she saw the Applicant “walking out the door” with the cleaning products35. Neither of these observations was correct. The oral evidence of both these witnesses was that they made the statement because the Applicant stated she was going to her car and/or because she was headed for the door which gave access to the carpark.

[81] In this matter I prefer the evidence of Ms Lewis and Ms Weber over the evidence of the Applicant. The evidence of Ms Lewis regarding the exchange she had with Mrs Keirl as she moved in the direction of the door with cleaning products in her arm was compelling. I accept that the Applicant stated to Ms Lewis during the shift that she did cleaning jobs in addition to working at Sea Views Manor. I accept that she did see the Applicant go to the cleaning cupboard although I also accept that Ms Lewis’s evidence was confused in that seeing the Applicant go to the cleaning cupboard and having cleaning products in her arm and moving towards the door leading outside were two separate events and occurred at different times. It appears on the evidence that Ms Lewis observed Mrs Keirl going to the cleaning cupboard earlier rather than when she made a comment to her at the time she had the cleaning products in her arm.

[82] The submission that Ms Lewis and Ms Weber deliberately made a complaint three weeks after the 8 January 2010 incident allegedly involving Mrs Keirl, knowing the CCTV tapes would have been overridden, is totally unsubstantiated and fanciful. I accept the evidence from Ms Weber and Ms Lewis that they either did not know or had limited knowledge about the operation of the CCTV or the wherabouts of cameras.

[83] Similarly, the allegation that Ms Lewis fabricated the incident with Mrs Keirl because Ms Lewis only lived around the corner from Sea Views Manor and if she had Mrs Keirl’s employment terminated she would get more work, is also totally unsubstantiated and fanciful.

[84] On balance, on the basis of the evidence, I find that the allegation that the Applicant took cleaning products from the SNU at the premises of Sea Views Manor substantiated. I find that Ms Weber and Ms Lewis were having a cold drink at approximately 5.30 a.m. on the morning of 9 January near the end of a night shift which commenced late on 8 January 2010. They were in a clear position to observe the Applicant heading towards the door which led to the car park with some cleaning products in her arm. It appears that there would have been a number of the Orange cleaning product containers in her arm but that number would have been perhaps three or four or thereabouts given the description of how she was holding them and the actual size of that product.

[85] The Applicant was observed by Ms Weber and Ms Lewis and Ms Lewis remarked to her in a jovial manner that it was too early to be going home. This remark is consistent with the fact that even though the number of ill residents and staff was less on 8 January than it had been previously, the staff was still very busy managing the infection and doing additional rigorous cleaning. Mr McCoy emphasised that the lockdown was almost over and the staff not as busy but this does not accord with any other evidence.

[86] The evidence of Mrs Perry did not in my view provide the alibi as stated by the Applicant, that she had not left the SNU area between 5.00 a.m. and 6.00 a.m. on 9 January. There was certainly several conversations between them but the Applicant was not in Mrs Perry’s view the entire time and particularly when the removal of the cleaning products allegedly occurred.

[87] What the Applicant may or may not have usually done does not especially assist in determining what actually occurred on 9 January. Mrs Perry’s evidence was also limited in relation to this application in that she failed to provide a statement regarding what she knew about the Applicant’s whereabouts on the shift and said that on the basis of legal advice she would not make a statement. Mrs Perry resigned from her employment on the same day as she told Ms Lynam that she would not make a statement.

[88] Mrs Perry stated that she told Ms Lynam that she could “account for some of Elizabeth’s time on that shift” 36 so it is perplexing that she would not repeat that view in a written statement. All that Mrs Perry was being asked to do was to provide a written statement to the same effect as her verbal response to Ms Lynam and the reason why she would seek legal advice on such a request or even such a direction is unusual.

[89] The import of Mrs Perry’s oral evidence was that she could account for some of the Applicant’s whereabouts between 5.00 a.m. and 6.00 a.m. when the removal of the cleaning products allegedly occurred but not all of the time.

[90] There is one element of Mrs Perry’s evidence which is concerning. On 3 February 2010 the Applicant produced two written statements. The first confirmed to Ms Lynam that she believed the PCW on shift on the 28 January shift “was unsteady on her feet and looked like someone who had been drinking.” 37 The second written statement to Maria [Houlahan] stated that she had “been reassured by Sharina on 3/2/2010, the letter regarding [name] will remain anonymous as I know there will be repercussions if [name] knows as this has happened in the past.” [The name of the other worker has been deleted as this application does not relate to her employment.]

[91] Mrs Perry stated that the employee went home because she was ill. Mrs Keirl stated she went home because she had been drinking alcohol. The Applicant’s statement is consistent with the statements of other people on shift that evening. Mrs Perry’s statement is not.

[92] The evidence of Ms Miles does not provide support for the Applicant’s whereabouts during the period she is alleged to have taken the cleaning products. I believe that Ms Miles gave her evidence honestly. She was subpoenaed to appear and felt that she had been under pressure from both the Applicant and her solicitor regarding this matter.

[93] On the balance of probabilities I have accepted that the Applicant did remove several containers of cleaning product from the employer’s facility for her own use and that she was not authorised to do so. This constituted a valid reason for the termination of her employment.

[94] The employer, properly in my view, carried out an investigation once the allegations arose and responded to requests for additional information from the union representing the Applicant. It was open to the employer, on the balance of probabilities to accept that the allegations were substantiated and to deem the removal of the products as serious misconduct. The outcome for employees found to have engaged in serious misconduct is usually dismissal from employment.

[95] The Employment Contract signed by the Applicant on 9 January 2006 states unequivocally that “[taking] possessions of Employer, resident or other employee’s property without permission or delegated authority is forbidden and may be deemed serious misconduct which may result in termination of employment with or without notice.”

[96] As indicated in the opening of this decision, at the commencement of the hearings, I indicated to the parties that on the basis of the considerable documentation provided prior to arbitration, it seemed to me that this was an application that should not have advanced this far and should have been settled through conciliation. The records show that the Conciliator spent almost two hours with the parties during the telephone conciliation conference. Commissioner Blair spent a further hour with the parties in conciliation on 8 June 2010.

[97] The submissions made for the Applicant by her representative throughout the hearing indicate in my view, an unrealistic expectation and a barrier to resolution of the matter through conciliation. In the scheme of things the removal of say three bottles of Orange cleaning product from the employer’s facility, which I estimate at a total cost of $15, hardly constitutes grand larceny. However it is described though, it is actually theft and it was open to the Respondent to find that Mrs Keirl had engaged in serious misconduct. There was considerable opportunity for an agreement to be reached instead of having the findings in this decision now on the public record.

[98] The provisions of the Act are clear and given the Tribunal has established that on the balance of probabilities the misconduct occurred, I find that there was a valid reason for the termination of employment. I also find that the processes attached to the termination of employment were fair. On every occasion the Applicant was encouraged to have her union representative with her and the evidence shows that when Mrs Keirl asked through her representative that he make requests on her behalf that the employer raise particular issues regarding the allegation with other staff members, this was done.

[99] In these circumstances there has been no breach of the Act regarding the processes associated with the decision to terminate the employment or the processes associated with the termination. As I state above, I have considered the severity of the theft and whether that raises issues of harshness. The Applicant’s actions led to the breakdown of trust in the employment relationship, in my view a far more important issue when considered against the total monetary loss to the Respondent. The Respondent paid the Applicant all her entitlements as is expected and three weeks payment in lieu of notice. No issues of harshness arise.

[100] On the basis of the findings above, the application by Mrs Keirl is dismissed.

COMMISSIONER

Appearances:

C.L. McCoy, of Counsel, for the Applicant.

M. Rahilly, of Counsel, for the Respondent.

Hearing details:

2010.
Melbourne:
June 8, 9.

 1   Exhibit R8.

 2   Exhibit A1.

 3   Transcript PN 89.

 4   Transcript PN 2228.

 5   Exhibit A4.

 6   Transcript PN489 – 490.

 7   Exhibit A4.

 8   Exhibit R3.

 9   Transcript PN 889, PN 918.

 10   Transcript PN 913.

 11   Transcript PN 1076 – 1078.

 12   Transcript PN 1107.

 13   Exhibit A4.

 14   Exhibit R4.

 15   Transcript PN 1156.

 16   Transcript PN 1259 – 1310.

 17   Transcript PN 1316 – 1371.

 18   Exhibit R5.

 19   Transcript PN 1434.

 20   Transcript PN 1451 – 1469.

 21   Exhibit R5.

 22   Transcript PN1516 – 1531.

 23   Transcript PN 1441.

 24   Transcript PN 2191 – 2197.

 25   Exhibit R7.

 26   Transcript PN 2258.

 27   Transcript PN 2336.

 28   Transcript PN 2497.

 29   Transcript PN 259.

 30   Transcript PN 259.

 31   Transcript PN 183.

 32   Exhibit R5.

 33   Exhibit R4.

 34   Exhibit R5.

 35   Exhibit R4.

 36   Exhibit A4.

 37   Exhibit R1.

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