Hill v Compass Ten Pty Ltd (No. 2)

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FEDERAL COURT OF AUSTRALIA

Hill v Compass Ten Pty Ltd (No. 2) [2012] FCA 815

Citation: Hill v Compass Ten Pty Ltd (No. 2) [2012] FCA 815
Parties: PAUL HILL v COMPASS TEN PTY LTD
File number: NSD 15 of 2012
Judge: COWDROY J
Date of judgment: 3 August 2012
Catchwords INDUSTRIAL LAW – Applicant’s employment summarily terminated for serious misconduct – employer alleged employee failed to follow established systems – employer subsequently discovered employee had misled employer about essential qualifications – whether employer can rely upon a ground for termination discovered after the employee’s termination
Legislation: Fair Work Act 2009 (Cth) ss 570, 772(1)(e)
Federal Court Rules 2011 rr 4.12, 4.15
Youth and Community Services Act 1973 (NSW) s 33(2)(c)
Cases cited: Annetta v Ansett Australia (2000) 98 IR 233
Applicant v Microsoft Australia [2012] FWA 3353
Concut Pty Ltd v Worrell (2000) 176 ALR 693
Hill v Compass Ten Pty Ltd [2012] FCA 761
Royal Melbourne Institute of Technology v Asher
(2010) 194 IR 1
Selvachandran v Peterson Plastics Pty Ltd
(1995) 62 IR 371
Shepherd v Felt and Textiles of Australia Ltd
(1931) 45 CLR 359
Date of hearing: 17, 18, 25 July 2012
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 89
Solicitor for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms L Andelman
Solicitor for the Respondent: Mackellars Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 15 of 2012

BETWEEN:

PAUL HILL
Applicant

AND:

COMPASS TEN PTY LTD
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

3 AUGUST 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.Within 14 days both parties provide the Court with written submissions no more than ten pages in length on the issue of whether pursuant to s 570 of the Fair Work Act 2009 (Cth) costs should be awarded to the Respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 15 of 2012

BETWEEN:

PAUL HILL
Applicant

AND:

COMPASS TEN PTY LTD
Respondent

JUDGE:

COWDROY J

DATE:

3 AUGUST 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. An interlocutory judgment was delivered in this matter on 17 July 2012: see Hill v Compass Ten Pty Ltd [2012] FCA 761 (‘the previous decision’). As a result of this decision, which sought to strike out certain pleadings and to obtain summary judgment in favour of the respondent (‘Compass Ten’), the Court made certain orders which partially disposed of the claim of the applicant (‘Mr Hill’).

  2. Pursuant to r 4.12 of the Federal Court Rules 2011 (‘the Rules’), Mr Hill was referred at the onset of the proceedings to a lawyer for legal assistance. Subsequently Mr Hill received the benefit of counsel in preparing his statement of claim. However, prior to the hearing counsel for Mr Hill sought to withdraw and pursuant to r 4.15…

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Details
Case
[2012] FCA 815
Decision Date

CaseChat Overview and Summary

In the matter of Hill v Compass Ten Pty Ltd (No. 2), the Fair Work Commission was tasked with determining whether Compass Ten Pty Ltd, a healthcare provider, was justified in summarily dismissing Mr Hill, an employee. The dispute arose from allegations that Mr Hill failed to follow established procedures and instructions, leading to significant disorganisation at Sunshine Lodge, a facility managed by Compass Ten. The central issue before the Court was whether Mr Hill's conduct provided a valid reason for his summary dismissal.

The Court examined the evidence and found that Mr Hill had consistently disregarded several procedures intended for accurate record keeping and management of patient care. This included failing to maintain physical records of medication administration as required, not arranging specialist appointments for patients in need, and not following instructions from the Director. The cumulative effect of these actions demonstrated a persistent unwillingness to comply with the established policies and procedures, which justified his dismissal. The Court concluded that the totality of Mr Hill's conduct warranted the summary termination of his employment without further notice.

Consequently, the Court dismissed Mr Hill's application, affirming that Compass Ten was justified in dismissing him for his failure to comply with the policies and procedures. The Court also noted that Compass Ten intended to seek costs against Mr Hill if the judgment favoured them. The Court ordered both parties to submit written arguments within 14 days on whether costs should be awarded under section 570 of the Fair Work Act 2009 (Cth).

Orders

Orders of the court

1. The application be dismissed.

2. Within 14 days both parties provide the Court with written submissions no more than ten pages in length on the issue of whether pursuant to s 570 of the Fair Work Act 2009 (Cth) costs should be awarded to the Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

With regard to the latter the Director stated that all controls and procedures had been stopped by Mr Hill; that systems and other controls in the workplace were not being followed and that Sunshine Lodge had been thrown into chaos.CONCLUSION Mr Hill was engaged at the Lodge from 11 August 2011 until his termination on or about 26 October 2011. In that period numerous procedures which had existed for the accurate record keeping were disregarded. It is possible that some of the individual instances of Mr Hill’s conduct during his employment, particularly with regard to his failures to follow the instruction of the Director, may not have reasonably formed a basis for his dismissal if they were isolated incidents. However, the totality of Mr Hill’s conduct as discussed above demonstrates a persistent unwillingness to follow the instructions of the Director and an unwillingness to follow the various procedures established by Compass Ten. This conduct was sufficient to constitute a well-founded reason for Compass Ten to summarily dismiss Mr Hill. The Court finds that Compass Ten was entitled under the contract, and justified, in ordering Mr Hill’s dismissal without further notification to him for his failure to comply with the policies and procedures established at Sunshine Lodge. Consequently, the application is dismissed. Compass Ten indicated that should the Court give judgment in its favour, it would seek costs against Mr Hill. Although s 570 of the FW Act prohibits costs from being awarded unless the proceedings were instituted vexatiously or without reasonable costs, the Court will order parties to provide written submissions on whether costs should be awarded.

Ratio Decidendi

Legal Principle Established

Following argument, Mr Hill provided copies of some records reproduced from the Ipad, which appear to have been made in the period following 20 September 2011. The Court is unable to determine whether these records now give Sunshine Lodge a complete record of the administration of medication to patients during the period of Mr Hill’s employment.Recording the administration of Warfarin Warfarin, a medication, was also administered to certain patients. Compass Ten alleged that administration of Warfarin was required to be recorded in a book kept in Sunshine Lodge. The dosage, the date and the patient to whom it was administered was required to be recorded as Mr Hill acknowledged. Mr Hill claimed that he maintained the record of the Warfarin administration in his electronic system ‘that I worked out with Dr Sam’. The evidence is as follows:What’s the electronic system?---Well, it was placed into a spreadsheet that was sent to Dr Sam, and we kept the spreadsheet updated between the two of us. Or at least, that was the plan. Of course, it never got there.You say you sent a spreadsheet to Dr Sam?---I believe I sent one. But that was the plan, yes. We were working on the new system. HIS HONOUR: Well, in case someone from the Department wished to inspect the records of the centre ­ ­ ­?---Yes.­ ­ ­ which record would they have access to to see that in fact in those three-week period there was Warfarin administered to Mr O’Neill?---That would be on their – I can’t remember what it’s called, sir, but it is the thing that is on the back of the Websters Paks, the dosages listed there.No. What I’m asking you is, where was the record kept, if it was kept electronically, and if an officer of the Department who is doing a check on the operation of this Sunshine Lodge ­ ­ ­?---Yes.­ ­ ­ wanted to see in that three-week period ­ ­ ­?---Yes.­ ­ ­ where would they go? Where was the record kept?---They would have come to me. It was kept ­ ­ ­ And ­ ­ ­?--- ­ ­ ­ in the office in the clinic, and ­ ­ ­ Where? But where in the office of the clinic?---Printed out in a – in a folder, your Honour.And where’s the folder?---I’m sorry, your Honour, it is in the possession of Sunshine Lodge. Dr Rewais could not recall whether he gave permission to Mr Hill to keep the records pertaining to Warfarin electronically. The Court is unable to determine if complete records for the administration of Warfarin exist. Again Mr Hill claimed that he had permission from the Director to keep the records electronically. The Director said she did not give Mr Hill permission to alter the record keeping method.Findings on these issues The evidence establishes that in respect of at least three of the residents no attempt was made by Mr Hill to arrange specialist appointments even though the medical officer had required such patients to be referred for specialist treatment. Mr Hill did acknowledge that one of his duties was to arrange transport. Although it appears that Mr Hill had some latitude in determining when he should complete the task of scheduling the appointments, that did not extend to not scheduling the appointments at all. This was a fundamental failure to carry out his responsibilities.