Edao Raya v Aged Care Services Australia Group Pty Ltd T/A Elanora Aged Care
[2015] FWC 7046
•21 OCTOBER 2015
| [2015] FWC 7046 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Edao Raya
v
Aged Care Services Australia Group Pty Ltd T/A Elanora Aged Care
(U2015/4209)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 21 OCTOBER 2015 |
Application for relief from unfair dismissal.
[1] Mr Edao Raya was employed by Aged Care Services Australia Group Pty Ltd from 24 May 2012. Mr Raya says his employment was terminated unfairly on 17 March 2015.
[2] Mr Raya was employed as a personal care worker in an aged care facility. On 12 March 2015, the Facility Manager received a complaint from one of Mr Raya’s co-workers that he had mistreated two residents of the facility on 6 March 2015.
[3] On 12 March 2015, Mr Raya was suspended on full pay whilst the complaint was investigated. The allegations were also referred to Victoria Police and the Department of Human Services.
[4] Ms Karyn Dais, the Human Resource Manager, interviewed the complainant on 13 March 2015. She was told that Mr Raya had treated one resident roughly and called her “stupid”. She further said that Mr Raya had been very rough whilst undressing and dressing another resident and had said “I don’t like this lady” and hit her in the back of the head with a closed hand.
[5] Ms Dais went to see both residents who she described as extremely frail and not cognitive.
[6] Ms Dais interviewed Mr Raya who denied the allegations. He denied that he had ever been rough with a resident. He said he had not spoken about the residents as reported by his co-worker and had never hit a resident. He had no explanation as to why the co-worker would make such a report as there had never been any issues between him and his co-worker. Mr Raya was asked if his actions could have been misinterpreted and he said he did not know. He was asked if he was in a rush. He said it was no different to any other day. He was asked if the residents had been particularly resistive and he said they behaved as normal.
[7] Ms Dais advised that the co-worker was required to report the incident when it happened or at least within 24 hours. Her explanation of why the co-worker did not was because she wanted to report it to the Facility Manager and she was not on duty at the same time as the Facility Manager until 12 March 2012.
[8] Ms Dais determined, having interviewed Mr Raya and the complainant that it was more probable than not that the incidents occurred. She decided that Mr Raya had a reason to lie whereas the witness had no reason to make up the allegations. Ms Dais then determined to terminate Mr Raya’s employment for serious misconduct.
[9] Mr Raya gave sworn evidence at the hearing and he denied the allegations. The complainant was not called to give evidence and while she no longer worked for Aged Care Services Australia no explanation for her non attendance was provided.
[10] Ms Dais gave sworn evidence but she did not witness the incident. Further there was no evidence that apart from interviewing Mr Raya and the complainant that any other staff were interviewed to determine if they had noticed anything on the day.
[11] A copy of an unsigned witness statement provided by the complainant to the police was also tendered.
[12] It was not disputed that Mr Raya was aware of the reasons for his suspension on 13 March 2015 as Ms Dais rang him and sent him an email outlining what had happened. That email was not in evidence before me.
[13] It was not disputed that Mr Raya was interviewed on 16 March 2015 and the allegations were put to him and he was given an opportunity to respond. He was asked at the commencement of the meeting if he wanted to have the meeting adjourned so that he could have a representative and he said no, he wanted the matter to continue.
Was the termination of employment harsh, unjust or unreasonable?
[14] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(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);
[15] The allegations made against Mr Raya are serious. He is said to have assaulted a highly vulnerable resident, mistreating and speaking in a derogatory fashion to the same resident and another resident. Mr Raya was dismissed for serious misconduct without notice or payment in lieu of notice.
[16] It is the role of the Commission in this case to decide if on the balance of probabilities that the alleged conduct occurred.1
[17] As the Full Bench in King v Freshmore (Vic) Pty Ltd2 made clear:
“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.”
[18] As the allegations made in this matter are serious I consider it appropriate to have regard to principle established in Briginshaw v Briginshaw3. While I am required to determine this on the balance of probabilities I am required to have regard to the seriousness of the allegations in assessing the evidence.
[19] In this case there was no direct evidence called by Aged Care Services Australia from the complainant.
[20] Mr Raya gave unchallenged sworn evidence that he did not assault the resident. He did not speak in a derogatory manner about the residents and he did not treat the residents roughly. Mr Raya denied the allegation in his interview with Ms Dais and when Ms Dais’ record of the interview with Mr Raya was put to him in cross examination, apart from some differences which are not relevant to my considerations, he confirmed on oath what he told Ms Dais that day.
[21] Ms Dais’ evidence about what occurred is hearsay. While not bound by the rules of evidence this is the circumstance where hearsay evidence should not be accepted. The complainant is not available for cross examination. There was no evidence given that explained her absence. The complainant’s version of events cannot be challenged. The explanation of why she did not immediately report the incident is not able to be challenged. I am not prepared to give any weight to the unsigned statement provided to the police. Even if it had been signed, without the complainant being made available for cross examination, it would be unjust to give weight to the evidence.
[22] In circumstances where there is no direct evidence to the contrary, I cannot be satisfied on the balance of probability that the conduct in fact occurred. In those circumstances there was no valid reason for the termination of Mr Raya’s employment.
s387(b) whether Mr Raya was notified of that reason;
[23] Mr Raya was notified of the allegations prior to the decision being taken to terminate his employment.
s387(c) whether Mr Raya was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[24] Mr Raya was given an opportunity to respond to the reasons.
s387(d) any unreasonable refusal by the employer to allow Mr Raya to have a support person present to assist at any discussions relating to dismissal;
[25] Mr Raya did not request a support person and he was provided with the opportunity to adjourn the meeting to enable him to have a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Raya had been warned about that unsatisfactory performance before the dismissal;
[26] The dismissal did not relate to unsatisfactory performance.
s387(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;
[27] Aged Care Services Australia is a large employer and this had no impact on the procedures followed in effecting the dismissal.
s387(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;
[28] Aged Care Services Australia had dedicated human resources personnel. So this criterion is neutral.
s387(h) any other matters that FWC considers relevant.
[29] No other matters were raised.
Conclusion
[30] I have found that there was no valid reason for the termination of Mr Raya’s employment. That he was afforded procedural fairness is not sufficient to find that the termination was fair. I find, on the evidence before the Commission that the termination of Mr Raya’s employment was unjust because he was not guilty of the alleged misconduct.
Remedy
[31] Mr Raya is not seeking reinstatement of his employment.
[32] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[33] There was no evidence that any order for compensation would affect the viability of Aged Care Services Australia’s enterprise.
(b) the length of the person’s service with the employer;
[34] Mr Raya had been employed for three years. This is neither a short or long time. There needs to be no adjustment for his length of service.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[35] Mr Raya was employed as a permanent part time employee and he averaged 64 hours per fortnight. His average fortnightly pay was $1743.13.
[36] There was no evidence called about how long Mr Raya might have been employed. There was no evidence that there had been any other performance or conduct issues affecting his employment. Mr Raya submitted that he loved his job and would have remained indefinitely. I am willing to accept that Mr Raya would have remained in employment for at least two years.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[37] Mr Raya gave evidence that he applied for four positions in aged care but had not been successful. He also made contact with the labour hire company that had previously placed him at a factory but was told there was no work. Mr Raya went overseas from 21 June 2015 to 1 August 2015. Mr Raya worked at another aged care facility at the same time as he worked at Elanora and continues to work at that facility. The evidence shows that he is now working at this facility at times when he would have been working at Elanora had he not been dismissed. I accept that Mr Raya has attempted to mitigate his loss and no deduction from the final compensation is necessary.
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;
[38] As at 15 September 2015, Mr Raya has earned $18,094.21 plus 1,718.95 in superannuation since the termination of his employment.
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;
[39] I consider that it is likely he will continue to earn on average the same amount.
(g) any other matter that FWC considers relevant.
[40] It was submitted that Mr Raya should not be compensated for the period of time he was on holidays and I accept that submission.
[41] It was submitted that Mr Raya has replaced the income he received from Aged Care Services Australia and he should only be compensated for the difference in those two amounts. I accept that submission.
[42] I have had regard to the fact that Mr Raya is now employed as a casual employee with no guaranteed hours.
Conclusion
[43] I accept the submissions of the Aged Care Services Australia that Mr Raya has picked up replacement work at Rosehill. Aged Care Services Australia submitted that Mr Raya is earning an average $95.21 per fortnight less in his current job than he received from Aged Care Services Australia. Mr Raya continued to work for Aged Care Services Australia for two years he would have earned $4950.92 more than he is earning at Rosehill. I have deducted an amount of $428.45 for the time Mr Raya was overseas. There were no submissions that any amount should be deducted for contingencies.
[44] I will therefore order Aged Care Services Australia to pay Mr Raya $4,522.48 less applicable tax plus $429.64 to his superannuation fund within three weeks of the making of this order.
DEPUTY PRESIDENT
Appearances:
A. Anota for the Applicant.
M. Rahilly for the Respondent.
Hearing details:
2015.
Melbourne:
14 September.
1 Edwards v Giudice (1999) 94 FCR 561 [6]-[7]
2 S4213 at [24]
3 (1938) 60 CLR 336
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