Jeffrey Smith v Healthscope Limited
[2010] FWA 4178
•7 JUNE 2010
[2010] FWA 4178 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jeffrey Smith
v
Healthscope Limited
(U2010/5314)
COMMISSIONER BLAIR | MELBOURNE, 7 JUNE 2010 |
S.394 application for unfair dismissal remedy - arbitration
[1] This matter was first dealt with by conciliators of Fair Work Australia in conciliation on 10 February 2010; however, the matter was unable to be resolved. The matter then proceeded to arbitration by Fair Work Australia (the Tribunal). The arbitration was dealt with by way of hearing in Bendigo.
[2] The application is under s.394 of the Fair Work Act 2009 (the Act). The applicant is Mr Jeffrey Smith (the Applicant) and the respondent is Healthscope Limited (the Respondent).
[3] The following decision (now edited) was handed down in transcript at the conclusion of the hearing:
[4] On 17 December 2009, a meeting occurred and the Applicant attended that meeting with a client. It is alleged that the Applicant was not entitled to be at that meeting, and most certainly the client, being a client with an acquired brain injury and who is wheelchair-bound. It is alleged that the meeting ended up in a confrontation between the Applicant and Ms Todd, who was chairing the meeting, and it is alleged that the Applicant was asked to leave the meeting. He did so and took the client with him.
[5] There are certain things that led up to that meeting. One of those was the resignation of Ms Pankhurst, which appears to have affected the Applicant and Mr Drury, and most certainly Ms Pankhurst, thinking that such a request for her to resign was unfair. Arising from the incident on 17 December 2009, an inquiry took place. The Applicant was entitled to have a representative at that inquiry, and ultimately at the point where the Respondent had made a decision, the Applicant did have a person available, but unfortunately they suffered gastroenteritis and were not able to attend the meeting. Ultimately the decision was made to terminate the services of the Applicant.
[6] Part of the history of this goes to the Applicant, firstly, being spoken to, at one point, about an allegation of bullying and harassment. This resulted from voluminous letters to management concerning certain staff within the organisation. Secondly there was a performance management issue where the Applicant was required to provide documentation supporting the credentials that the Applicant said that he had. Such documentation was not provided, and ultimately on this particular day, 17 December 2009, it would appear to the Tribunal, that the Respondent took this as being, if you like, the last straw in the conduct of the Applicant.
[7] The Tribunal must determine whether or not there was a valid reason for the termination, and then, if there was a valid reason, whether the termination was harsh, unjust and unreasonable. If the Tribunal determines that there was no valid reason for the termination, it then has to address the issue of remedy.
[8] The Tribunal has tried to identify what sort of remedy that the Applicant has been trying to seek. It is fair to say that the Applicant has been totally unhappy with the conduct of the Respondent not only in the way in which they have dealt with his particular matter, but the way in which, it would be fair to say, the entire service is managed in the Bendigo region.
[9] The Tribunal works on the basis of the balance of probabilities which is a lesser standard than the Courts operate on. Courts operate on the basis of “beyond reasonable doubt”. The Tribunal does not do that. The Tribunal asks, on the balance of probabilities, given the evidence before it, is this what has occurred?
[10] Based on the balance of probabilities, the Tribunal would have to say that if the termination did not occur on the date that it did, the Tribunal believes that the Applicant’s service would not have carried on for too much longer with the Respondent.
[11] Secondly, based on the balance of probabilities, there was a disruption to the meeting. That disruption was caused by the Applicant, and disruption of a meeting is generally a perception by those that are at the meeting and where somebody raises an issue that is not on the agenda or in fact they are at a meeting and they are not entitled to be there, and they are asked to leave the meeting, that can be very easily viewed as a disruption to the meeting.
[12] The third thing is that the Applicant took a client to that meeting. The client is a mentally impaired person, and has other difficulties. He's wheelchair-bound. He was not entitled to be at that meeting, and the disruption that was caused at that meeting could have and may have had an effect on the client.
[13] The Tribunal was advised that the Applicant took the client over to that particular area, to interact with some people that he has had an association with, and the Tribunal recalls the Applicant saying that the client had actually lived with one or two of those people.
[14] From the Tribunal’s point of view that was not the Applicant’s intention. The Tribunal believes that the Applicant’s intention was very clearly to go to that meeting and that the Applicant used the client to get to that meeting.
[15] It was not in the best interests of the client to have him at that meeting. Therefore based on the information provided, the Tribunal determines that there was a valid reason for the termination.
[16] The Tribunal will now deal with the issue of whether the termination was harsh, unjust and unreasonable and will address the subsections of section 387, Criteria for considering harshness etc. that it must take into account.
[17] In relation to section 387 of the Fair Work Act:
(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)
[18] The Tribunal has already indicated that there was a valid reason,
[19] In relation to section 387 of the Fair Work Act:
(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
[20] The Tribunal believes that the Applicant was notified of that reason, and was given an opportunity to respond.
[21] In relation to section 387 of the Fair Work Act:
(d) Any reasonable refusal by the employer to have the person to have a support person present to assist at any discussions relating to dismissal
[22] The Applicant was provided with more than one opportunity to have a representative with him if he’d wished, but chose, ultimately at some point, not to. Despite the fact that the Applicant wanted somebody with him, and they developed gastroenteritis on that day, the Applicant was given an opportunity to defer the meeting, but chose not to.
[23] In relation to section 387 of the Fair Work Act:
(e) if the dismissal related to unsatisfactory performance by the person, whether the person had been wanted about that unsatisfactory performance before the dismissal
[24] In this particular instance, the dismissal did not relate to the Applicant’s work performance. It related to his total indiscretion in taking a person with an acquired brain injury into a meeting that they were not entitled to be at, and were subject to an environment that was not acceptable for that person to be in.
[25] In relation to section 387 of the Fair Work Act:
(f) the degree to which the size of the employer's enterprise was likely to impact on the procedures followed in effecting the dismissal.
[26] That's not relevant in this particular instance.
[27] In relation to section 387 of the Fair Work Act:
(g) the degree to which the absence of a dedicated human resources management specialist or expertise in the enterprise would have been likely to impact on the procedures followed in effecting the dismissal.
[28] Again, that is not relevant in this matter.
[29] In relation to section 387 of the Fair Work Act:
(h) any other matters that Fair Work Australia considers to be relevant
[30] The Tribunal is not convinced that there are any other matters that the Tribunal should take into account in order to dismiss the Applicant’s claim, and to declare that the termination as not harsh, unjust and unreasonable.
[31] Accordingly, the Tribunal dismisses the application and will close the file.
COMMISSIONER
Appearances:
J Smith on his own behalf
J Douglas for Healthscope Limited
Hearing details:
2010
Bendigo
May 27
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