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 359Date 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
ApplicantAND: 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
ApplicantAND: COMPASS TEN PTY LTD
Respondent
JUDGE:
COWDROY J
DATE:
3 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
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’).
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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- Case
- [2012] FCA 815
- Decision Date
CaseChat Overview and Summary
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
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.