Jackie Nikoloska v Stirling Ethnic Aged Community Hostel
[1995] IRCA 538
•03 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1053 of 1995
B E T W E E N :
JACKIE NIKOLOSKA
Applicant
AND
STIRLING ETHNIC AGED COMMUNITY HOSTEL
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne (heard in Perth)
Date: 3 October 1995
REASONS FOR DECISION
Background
The Respondent is an Aged and Disabled hostel. Emcare Pty Ltd administers the hostel. Mr Emery is the director of Emcare and the administrator of the hostel. The duties of the administrator are to organise payroll, billing and staff policy. Mr Emery commenced in this role on 25 May 1994.
Mrs Nikoloska (the Applicant) is 42 years old. She commenced at Stirling Ethnic Aged Community Hostel on 15 April 1993 as an assistant supervisor or carer. Her duties involved caring for residents such as showering, shaving, dressing, cleaning, washing and medication. Mrs Nikoloska has no formal qualifications.
Mr Robertson for the Respondent sought to rely on episodes where the Applicant was counselled prior to 25 May 1994 when Mr Emery took over as administrator. I made a ruling during the course of the proceeding that the Court would not hear evidence of the two warnings that may have been two or three years old as they are too remote. I am also guided by the 12 month rule in provision 37(7)(c) of the Aged & Disabled Persons Hostels Award 1987 which states:
“Should it be necessary, for any reason, to reprimand an employee three times in a period not exceeding 12 months continuous service, the contract of service shall, upon the giving of that further reprimand, be terminable in accordance with the provision of this award.”
Mr Robertson further submitted that the Court should not review each of the warnings the Respondent was relying on. This is inconsistent with Mr Robertson’s submission in relation to the initial warnings prior to May 1994 and I am persuaded by the decision of Staindl JR in Lawton & SDAEA v Ultinel Pty Ltd 157/95 (unreported) wherein he states it was reasonable to review each warning and to consider the reasonableness of each warning.
Warnings
There are four warnings that the Respondent seeks to rely upon as the basis for the termination. They are as follows:
1. Ms E.M. incident
2. Mr P. incident
3. Mr D. incident
4. Mr C.O. jnr incident
To protect the identity of the residents I will not refer to them by name and I will deal with each of the episodes separately.
Ms E.M. incident
On 10 September 1994 while on duty Mrs Nikoloska was alleged to have spoken roughly to the resident Ms E.M. Exhibit C is a statement of Ms Bozich who was on duty at the time. Her letter is written 10 days after the alleged episode and in response to a request by Mr Emery that it be in writing. Ms Bozich is a relative of one of the staff and she no longer works at the hostel. At the time of the alleged incident Ms Bozich was employed as a casual kitchenhand. In her letter Ms Bozich states that the Mrs Nikoloska said to Ms E.M. “sit” in a raised voice. Ms Bozich said that Ms E.M. seemed confused. Ms E.M. suffers from dementia. Ms Bozich said that Mrs Nikoloska then said “sit please sit! Just 5 minutes!”. Mr Bumback another resident was present at the time. Ms Bozich said that Mrs Nikoloska could not see her because Ms Bozich was behind a pillar at the time. Ms Bozich had never spoken to Mrs Nikoloska before and did not raise the matter with Mrs Nikoloska but reported it to the administrator.
Ms Dillon is a consultant to the hostel and her position was to assist the supervisor in relation to standards of care that at the time of her appointment in May 1994 were substandard.
Ms Dillon counselled Mrs Nikoloska on 23 September 1994 in relation to this incident. Exhibit F - Record of Staff Interview - records what occurred during the counselling session. Mrs Nikoloska gave evidence that she cannot read English very well however her English language skills as I observed them were excellent. At the interview Ms Dillon and Mrs Nikoloska were present. Ms Dillon gave Mrs Nikoloska the letter of Ms Bozich to read. It is clear to this Court that Mrs Nikoloska could not read the letter in its entirety. Ms Dillon did not interview either Ms Bozich or Ms E.M. I do not accept Ms Dillon’s evidence that she gave Mrs Nikoloska a verbal formal warning. Ms Dillon did not investigate the allegation and had merely entered into a discussion with Mrs Nikoloska. There was before me neither conclusive or persuasive evidence that Mrs Nikoloska was advised that she was being formally warned or that her job may be in jeopardy. If as Ms Dillon suggested Mrs Nikoloska was “quite eager” to sign the record it is consistent with Mrs Nikoloska’s evidence that she did not see it as a formal warning. Furthermore Ms Dillon has not used the “formal warning form” and when asked why she had not she said “I could not prove that she had been in the wrong”. There is no proof that Mrs Nikoloska had misconducted herself on this occasion. The incident in relation to Ms E.M. resulted in no more than a counselling session.
Mr P. incident
Mrs Nikoloska was counselled by Ms Dillon in or about August or September 1994 in relation to a incident where it was alleged a resident who is a diabetic, Mr P., had been given extra food by Mrs Nikoloska. Mrs Nikoloska agreed that she had given Mr P. extra food. Mr P. asked her at lunchtime for extra food. Mrs Nikoloska asked the cook, the cook said yes and so she gave Mr P. an extra meal which she said was a piece of meat and spaghetti. She denied giving Mr P. a sweet. Mrs Nikoloska said that she knew Mr P. was a diabetic but said that she often gave an extra meal to anyone who asked and that no one ever told her not to give an extra meal and other staff gave extra meals. Ms Rigoli and Ms Good, other carers at the hostel corroborated Mrs Nikoloska. Mrs Nikoloska said she had seen the care plan for Mr P. but that it did not say anything in relation to food and this was also corroborated by Ms Good.
In relation to this episode Mrs Nikoloska was called to the office the next day. Ms Dillon and Ms Galea were present (Ms Galea was not called to give evidence). Mrs Nikoloska’s evidence was that she was accused of giving Mr P. extra sweets. Mrs Nikoloska denied this. Ms Dillon’s evidence was that she had not accused Mrs Nikoloska of giving Mr P. sweets but that it was the extra meal that was in issue. Ms Dillon said that it was dangerous for Mr P.’s health to give him extra food and Ms Dillon said that she told Mrs Nikoloska “do you realise more food for Mr P. could kill him?”. It is not believable to the Court that it was ever said to Mrs Nikoloska that extra food would kill Mr P., nor is it believable that knowing this Mrs Nikoloska would give Mr P. extra food. The Respondent did not present a care plan or a day sheet or any documentation to the Court nor was the cook called or any agency staff called to corroborate the story of Ms Dillon. However Ms Good and Ms Rigoli corroborated the evidence of Mrs Nikoloska. Ms Rigoli gave evidence that Mr P. would be given an extra meal however because he was diabetic he would not be given sweets. Ms Good said that there was a care plan for Mr P. which said nothing about food “only that he is a diabetic and no sweets”. Ms Good said that it was common for Mr P. to have extra food and that she had seen other staff give it to him.
Mrs Nikoloska refused to sign the record of staff interview (Exhibit MFI E) which is undated. I accept her evidence that she believed she was being accused of giving Mr P. a sweet and that she was not happy about the allegation. Ms Dillon said that if she would not sign it then she should go away for an hour and think about it. On her return Mrs Nikoloska still refused to sign it. I accept Ms Dillon’s evidence that upon Mrs Nikoloska’s refusal to sign the record of interview Mrs Nikoloska was terminated. Her actions in going home, and telephoning her union representative are indicative of that. Ms Reimers from the union represented Mrs Nikoloska at a meeting which resulted in Mrs Nikoloska being returned to the roster. Ms Dillon explained that Mrs Nikoloska was not terminated for giving Mr P. the extra food but for failing to co-operate at the interview. Given the seriousness of the allegation, that is, putting at risk the health of a resident, the Respondent has a duty to thoroughly investigate the allegation and to make it clear to the employee what she is accused of. I accept the evidence of Mrs Nikoloska that she believed that she was being accused of giving Mr P. a sweet. Her “wilfulness” and determination not to sign the record of interview persuade me that Mrs Nikoloska was very unhappy about the allegations and on that basis refused to sign a document she believed would admit a wrong doing that she had not committed. I accept that the Respondent had terminated Mrs Nikoloska’s employment on this occasion and when the union became involved it had reinstated Mrs Nikoloska and Mrs Nikoloska agreed to work as a team.
Ms Dillon relied upon her record of interview which is undated but is apparently written on the date Ms Reimers attended. This again is not a formal warning form and states the points discussed as “insubordination, lack of knowledge of care issues, home life impacting on ability to function in job”.
I find that there was confusion as to what Ms Dillon was accusing Mrs Nikoloska. I accept that in Ms Dillon’s view Mrs Nikoloska was wilful however Ms Dillon did not make her position clear to Mrs Nikoloska. Ms Dillon had stated that the standard of care at the hostel was substandard when she started in May 1994 however in about August or September 1994 there seems to be confusion with care plans and the supervisory role of agency staff. The onus is on the employer to satisfy the Court that it has a valid reason and on this occasion I accept that reinstatement of Mrs Nikoloska was due to a more reasonable approach being taken by the employer once the union had become involved.
Mr D. incident
On 4 January 1994 Mrs Nikoloska received a “Third Formal Warning”. Although the warning is dated 1994 I believe it should be 1995 as Ms Jumeaux, the author of the warning, did not commence with the Respondent until 24 October 1994.
The warning is detailed in Exhibit G and it sets out a complaint by Ms Petrovska to Mr Emery where it was alleged that Ms Petrovska overheard a conversation where Mrs Nikoloska had been inappropriately joking with Mr D. a resident. Nothing was done about this complaint until Mrs Nikoloska approached Mrs Jumeaux and complained of her excessive workload. When Mrs Nikoloska approached Mrs Jumeaux, Mrs Jumeaux said that she had been meaning to talk to her and raise the complaint of Mr D. Mrs Nikoloska responded that she was only joking and Mrs Jumeaux responded that it was not a joke it was “elderly abuse”. When Mrs Jumeaux spoke to Mr Emery the next day Mr Emery said that that was her third warning and it was written out and read to her. Mrs Nikoloska refused to sign it.
In her evidence Mrs Nikoloska said that a meeting was scheduled for 5 January 1995 and that another matter had arisen relating to a resident Mr C.O. jnr.
Meeting on 5 January 1995
Mr Emery and Mrs Jumeaux attended with Mrs Nikoloska. Mr Emery went through the other warnings but did not go into any great details. At the conclusion of the meeting Mrs Nikoloska was suspended and a further meeting was scheduled.
Mr C.O. jnr incident
The Respondent sought to call a resident who I will call Mr C.O. jnr to given evidence. Mr C.O. jnr entered the witness box with a Macedonian interpreter. Mr C.O. jnr has down syndrome. Seemingly overwhelmed by the Court room I called his father into the witness box with him. Mr C.O. jnr was however unable to speak. At Mr Robertson’s request he was sent home and given an opportunity on the following morning to given evidence. Mr C.O. jnr was again unable to speak and his father told the Court “he doesn’t understand anything”. I made a ruling pursuant to s.13(4) of the Evidence Act (Commonwealth) 1995 that Mr C.O. jnr lacked the capacity to give evidence to the Court. Mr Robertson sought to proceed in the absence of Mr C.O. jnr’s evidence.
The incident in relation to Mr C.O. jnr is the catalyst for the termination of employment and it is the Respondent’s case that after three formal warnings the episode with Mr C.O. jnr was the fourth episode and the reason for termination of Mrs Nikoloska.
At the meeting on 9 January 1995 Mrs Nikoloska attended with Ms Reimers from the union. A volume of paperwork was handed to Ms Reimers who commented that she was overwhelmed by the quantity of papers and that Mr Emery said “Jackie (Mrs Nikoloska) has had three warnings and therefore she was out”. Mr Emery identified the warnings as (1) Ms E.M. episode; (2) Mr P. episode; and (3) Mr D. episode (Exhibit MFI 3). Mr Emery detailed the allegations in relation to Mr C.O. jnr and said that Mrs Nikoloska had received a formal warning in relation to that allegation. Mr Emery did not make a final decision to terminate the employment of Mrs Nikoloska on this occasion and the meeting concluded with Mr Emery seeking advice from the Chamber of Commerce. Upon receipt of that advice Mr Emery telephoned Mrs Nikoloska to advise her that her employment was terminated and a letter of termination was sent to her on 25 January 1995 (Exhibit D).
Mrs Nikoloska was paid two weeks’ pay in lieu of notice and the reason for the termination was stated to be “complaints from residents of physical and verbal abuse”.
Valid reason
The Respondent has not discharged its burden of proving to the Court that it had a valid reason for terminating Mrs Nikoloska’s employment. There is nothing before me which proves that Mrs Nikoloska physically or verbally abused any resident. Mrs Nikoloska’s manner may be misinterpreted. She has a loud voice and a matter of fact manner but I am satisfied that she did not either physically or verbally abuse the residents.
Mr Kelly relied on the decision of Parkinson JR in AWU FIME Amalgamated Union & Joseph Patrick Farrell v Conagra Wool Pty Ltd wherein the Judicial Registrar stated:
“For the employer in these circumstances to be able to establish he had a valid reason for the termination of the employment, it is necessary for it to satisfy the Court that the facts relied upon by the employer which resulted in the terminations were true.”
Mr Robertson for the Respondent has not satisfied the Court that the facts relief upon by his client were true.
I find that the termination of employment was not for a valid reason.
Section 170DC
I find that the Respondent has breached the Act in not investigating the incidents thoroughly and in not providing Mrs Nikoloska with an adequate opportunity to defend herself in relation to all incidents. Even with Ms Reimers present it seems both Mrs Nikoloska and Ms Reimers were overwhelmed by the paperwork at the critical meeting of 9 January 1995 and were given no adequate opportunity to consider each episode in detail.
Remedy
Mr Kelly submitted that reinstatement was practicable and that Mrs Nikoloska’s chances of finding employment in the industry are “extraordinarily remote”. I do not agree that Mrs Nikoloska’s future employment prospects are so bleak and given how she presents as a hard working and enthusiastic employee I consider her chances of re-employment to be very good. I am also satisfied that given the demeanour of Ms Dillon in the witness box it is this Court’s view that the employment relationship has broken down irretrievably and to the extent that it is impracticable to reinstate her.
I propose to order compensation in the maximum amount of 26 weeks which amounts to $9,647. As Mrs Nikoloska was paid her notice I make no award for damages. In relation to payment I have made an order giving the Respondent liberty to apply to the Court. Mr Robertson sought an opportunity to address the Court on the payment of compensation if there is an order made. Accordingly the effect of this order will enable the Respondent to apply to the Court if necessary.
The Order of the Court
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
MINUTES OF ORDERS
THE COURT ORDERS:
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 3 October 1995
Representatives for the Applicant: Mr David Kelly
Hospitality & Miscellaneous
Workers Union
Representatives for the Respondent: Mr P.G. Robertson
Chamber of Commerce & Industry
of Western Australia (Inc)
Date of hearing: 26, 27 & 28 July 1995
Date of judgment: 3 October 1995
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - HARSH UNJUST UNREASONABLE
Industrial Relations Act 1988 ss.170DC, 170DE, 170EE
Evidence Act (Commonwealth) 1995 s.13
CASES:AWU FIME Amalgamated Union & Joseph Patrick Farrell v Conagra Wool Pty Ltd, Parkinson JR,
Lawton & SDAEA v Ultinel Pty Ltd, Staindl JR, VI 1547 of 1995
JACKIE NIKOLOSKA -v- STIRLING ETHNIC AGED COMMUNITY HOSTEL
No. WI 1053 of 1995
Before: Judicial Registrar Fleming
Place: Melbourne (heard in Perth)
Date: 3 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1053 of 1995
B E T W E E N :
JACKIE NIKOLOSKA
Applicant
AND
STIRLING ETHNIC AGED COMMUNITY HOSTEL
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 3 October 1995
THE COURT ORDERS:
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
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