Jeffrie Trika v Home@Scope Pty Ltd
[2022] FWC 749
| [2022] FWC 749 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeffrie Trika
v
Home@Scope Pty Ltd
(U2021/10291)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 6 APRIL 2022 |
Application for an unfair dismissal remedy – termination not harsh, unjust or unreasonable – application dismissed.
On 15 November 2021, Mr Trika (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Home@Scope Pty Ltd (the Respondent) on 27 October 2021. The Applicant seeks an order for compensation and reinstatement.
Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 30 March, 31 March and 1 April 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
At the hearing, the Applicant was represented by Ms Maggie Chen and gave evidence. The Respondent was granted permission to be legally represented pursuant to s.596(2) and was represented by Mr Nicholas Harrington of Counsel, who called the following witnesses to give evidence:
· Olive Brinn – Senior Manager
· Bernadette Trevitt – People and Culture Business Partner
· Lisa Wright – Operations Manager
· Heather Miles – Disability Support Worker
· Tim Lane – House Supervisor
· Angela Mueni – Disability Support Worker
· Mrudul Gadda – Disability Support Worker
· Veronica Milicevic – Client/Resident of 8 Keystone Crescent East Kew
Background and evidence
The Applicant’s employment
The Applicant commenced employment with the Department of Health and Human Services (DHHS) on 29 February 2016, initially in a casual role. He was subsequently engaged in fixed-term part-time and full-time roles before being engaged on a permanent part-time basis as a Disability Support Worker by DHHS from 16 September 2018[1]. The Applicant was covered in his employment by the Disability Services Enterprise Agreement Victoria 2018-2022[2] (the Agreement).
On 7 May 2019, the Applicant was moved to a group home at 14 Griffith St Bellfield (Bellfield) following a workplace investigation into his conduct initiated by DHHS[3].
In around July 2019 a number of DHHS group homes transferred to the Respondent. In the initial stages of that transfer, employees of DHHS (including the Applicant) were seconded to the Respondent. At the time of the transfer of the group homes to the Respondent the Applicant was working at the Bellfield group home[4].
On 4 January 2020, the Applicant self-reported an allegation made against him by a client at the Bellfield home. He was subsequently suspended from duty from 7 January 2020 for a period of approximately 7 months pending completion of an investigation[5]. The Applicant subsequently made a complaint against the DHHS and the Respondent with the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC Complaint) which was the subject of a confidential settlement reached in October 2020.
On 14 July 2020, Ms Trevitt who is a People and Culture Business Partner with the Respondent, emailed the Applicant with the intention of facilitating his return to work following his suspension from duties. In doing so, she confirmed that the role offered was at a different group home to that he had been working prior to his suspension. The new role, which involved a permanent transfer, was at the group home at 8 Keystone Crescent, Kew East (Keystone)[6].
In August 2020, the Applicant returned to work, commencing at the Keystone group home in the role of Disability Support Worker[7].
In December 2020, the Applicant made a bullying complaint against Ms Wright which she says was made because of her declining to accommodate the Applicant’s request for particular shifts[8].
The Applicant rejected that his bullying complaint against Ms Wright was just in relation to hours of work. He referred to her response to his concern over sleep interruption that he should wear ear plugs and her response to his concern over manual handling in respect of a high need resident[9]. The Applicant says that her responses showed no concern for his wellbeing, and he also referred to an email sent by him on 7 December 2021 in which he sought feedback from Ms Wright regarding whether she had any concerns over his work performance[10].
An email was produced in evidence by the Applicant dated 15 December 2020 (the 15 December Email) sent by him to Ms Trevitt which referred to several grievances the Applicant held in respect of Ms Wright, who the Applicant accused of harassing and bullying him. The email stated as follows;
“Hi Berns, trust that you are well. I'm not traveling well at Keystone, I'm not having issues with my job, the residents nor staff, but with Ops Manager Lisa W.
I believe this is a "personal" thing, nothing to do with work performance, these are harassment and bullying. Email below is re: not paying my Sleepover allowance and making assumption that I converted my rostered S/O shift into an Active Night, which I do not have the authority to do so.
I shall forward previous emails between me and Lisa in the last few months regarding those issues; Staff Entitlements; Purchased Leaves
Client falling & OH&S issue, Manual Handling, which activated the A/N shift - for indefinite period.
Sleep Over shift issue due to A/N staff; no swap into A/N shift, use entitlement not to work those shifts, no compensation for interrupted shift, no S/O allowance paid for Active Hours due to no A/N staff, Lisa cuts me off when airing this A/N issue at starleaf (sic) team meeting, I'm sure other staff can add their concerns over A/N staff and issues. Training; I have to swap my CPR training from the 25th NOV after my S/O shift to the 8th of DEC (rostered 08:00- 15:30), I have to take a Rec Leave, cannot complete my shift after the training as a Casual picked up the shift.I'm happy for you to mediate and find a solution or other external body to determine.
Thanks you and best regards.
JT”[11]
When Ms Trevitt was cross-examined, she stated that she recalled receiving the above email and the further emails referred to by the Applicant in the 15 December Email. Although she could not recall the detail of the OH&S issue referred to, she says she reviewed the entitlement matters raised and established there were no entitlements under the Agreement as claimed by the Applicant. Ms Trevitt further states that she investigated the Applicant’s bullying complaints and found there was no evidence of behaviour that would constitute bullying. The outcome of her investigation was communicated to the Applicant in correspondence dated 22 February 2021[12]. Ms Trevitt states that it appeared to her that Ms Wright had responded appropriately and reasonably to queries from the Applicant[13].
On 1 January 2021, the Applicant commenced employment with the Respondent, having accepted an offer of direct employment on 8 October 2020[14]. His cessation of employment with DHHS was confirmed in a letter from DHHS dated 16 December 2020[15].
The Applicant was covered by the Respondent’s Code of Conduct[16], its practices and procedures including the SIL and STAA Services Practice Manual[17]. He agreed that he had received these when he commenced employment with the Respondent and that he was familiar with the content of both. In respect of the Code of Conduct, the SIL and the STAA Services Practice Manual, he acknowledged and agreed that he was bound by them. He specifically agreed that in relation to 1.2 Duty of Care in SIL and STAA Facilities that;
·he had an obligation of minimising harm to residents;
·staff were required to follow safe work practices; and
·staff should avoid conduct that creates a risk to residents.
As regards the Code of Conduct the Applicant agreed that he had a number of obligations including;
·honesty;
·respect for individuals including fellow staff members;
·engaging in respectful, polite, and considerate behaviour
·working in a co-operative and courteous manner;
·treating peers, subordinates, and managers with respect;
·ensuring attendance at work for rostered hours;
·carrying out duties in accordance with his position description or as directed; and
·being punctual and reliable in attendance and not be absent during rostered hours without specific approval.
Mr Lane, who is the House Supervisor at Keystone, states that there was an incident shortly before 31 January 2021 in which the Applicant left Keystone before the end of his rostered shift without checking this was ok. Mr Lane says he counselled the Applicant on 31 January 2021.[18] While recalling the event, the Applicant denied that he had been formally counselled or warned, nor was it documented, and he claimed that his leaving early was consistent with the behaviour of other staff. He also states that the date referred to by Mr Lane was in any event incorrect.
The Keystone group home
The Respondent is engaged in the management and operation of facilities that provide independent supported living for disabled clients which is delivered though group homes, one of which is the Keystone group home where the Applicant was engaged. The Keystone group home, which is a Supported Independent Living (SIL) house, had 5 residents at the time of the Applicant’s dismissal[19] each of whom had down syndrome. Of the five residents, one (who has since died) suffered from dementia and required one-to-one care at times because of his deteriorating health[20].
Keystone has a house supervisor (Mr Lane) and an assistant house supervisor (Ms Lidia Jeans). In addition to Mr Lane and Ms Jeans, there were three other permanent Disability Support Workers engaged at Keystone at the time of the Applicant’s dismissal including Ms Heather Miles. Mr Lane reports to Ms Wright who is the Operations Manager and is responsible for 6-7 group houses which includes Keystone. Ms Wright is one of four Operations Managers that report to Ms Brinn who is the Senior Manager responsible for the North East Division of the Respondent[21].
According to Ms Brinn, Keystone is an example of the philosophy of the Respondent that it wants to engender, that being summarised as “you see the person, you do it together, you do it right, and you do it better.” Ms Brinn states that the Respondent’s residences are intended to be supported independent living environments, the residences are not institutions and that the Respondent aims to support people with a disability to live their best life in a group environment.[22]
Ms Wright also gave evidence as to the nature of the Keystone residence when she variously stated that;
·the day-to-day operations are dictated by the resident group;
·the residents are quite independent and can communicate their needs;
·the structure of the home is to promote residents’ independence and for staff to provide support where needed; and
·that any limitation on that independence or imposition of a structure not led by the residents would take away their ability to live a self-directed life and would limit their choice and control.[23]
Ms Wright specifically refers to the Respondent’s policy and practice manual where it states;
“SSPM 1.2.1 Duty of Care: Employees are required to provide support to Customers to maximise their opportunities for community participation and to assist them to live safe, positive and enriched lives. Employees are required to work in a positive way that promotes the rights, choices and development of people with a disability.”[24]
Ms Miles gave evidence that while residents at Keystone all have down syndrome and have a mild intellectual disability, their comprehension is excellent, they all hold positions in education or employment, they are aware of their rights through training undertaken and expect a lot of the staff[25]. She also states that they need a moderate level of assistance but, for example can cook a meal with minimal assistance. At the time of the Applicant’s dismissal, three of the five residents were able to travel alone on public transport[26].
Evidence was variously given by Ms Wright, Ms Brinn, Ms Miles, and Mr Lane in respect of Keystone that;
·staff are expected to support residents with their day-to-day activities as requested by the residents;[27]
·while not required to comply with unreasonable requests, the timeline and composition of staff members’ work each day is determined by what tasks residents wish to undertake;[28]
·residents are fairly independent in that they usually do what they want to do when they want to do it, and have the freedom to go to bed early or stay up late;[29]
·residents are the centre of the work that drives staff;[30]
·the household is a flexible team and the residents have different relationships with different staff members;[31]
·it is a laid back and easy-going environment, it is the customers’ home and staff are there to support them[32];
·the house routine is fluid and is driven by customer needs[33]; and
·a daily routine was in place in respect of resident placements/employment; however, the Covid-19 pandemic restrictions saw a hiatus in those placements[34].
When the residents are at home at Keystone there are generally two staff rostered on. During peak periods (e.g. dinner) two staff are required. Staffing and hours of work arrangements were, at time of the Applicant’s dismissal as follows;
·A sleepover shift is generally rostered from 5pm-9am of which the 10pm-6am component is notionally for sleeping;
·While the hours do vary, day shift staff are generally rostered to commence between 8-10am and finish at or after 7.30pm;
·the hours of sleepover staff overlap with dayshift in the period 5pm to 7.30pm and the morning shift between 8am-9am;
·because of a particular need arising (during the period of the Applicant’s engagement) due to the high care needs of a resident suffering from a rapid decline in health due to dementia, ‘active night staff’ were rostered between 7.30pm-7am; and
·‘active night staff’ were rostered to ensure regular checking of the resident suffering from dementia and initially worked between 9.30pm and 7am although the start time later moved to 7.30pm.
In respect of staffing levels, the Applicant rejected that 2 staff were required in Keystone at all times. He referred to the roster from September 2020[35] (the Core Roster) which showed gaps in the roster where only one staff member was present (e.g. Sunday and Tuesday between 7-8am). He also referred to an email from Ms Wright dated 2 September 2021 when Ms Wright relevantly stated to him as follow;
“…
It is not always necessary to have two staff on at Keystone
I do believe the dates you are talking about did have extra staff rostered on however there was a late cancellation owing to illness
The level of independence of four of the clients enable many shifts to still go ahead safely in the absence of one staff member…”[36]
The above email from Ms Wright was in response to an earlier email from the Applicant on 1 September 2021 in which the Applicant expressed concern at there being only two staff rostered on at times in circumstances where one of the residents had high care needs. The email to Ms Wright stated as follows;
“Hi Tim and Lisa
We have single staff (two on roster) on the last two days, Monday 31/08 and TUE 01/09 during the day.
I’m not sure whether you know that Peter fell twice last week, Riskman lodged one by Heather and one by me, and didn’t hit his head.
I assisted Heather for the first incident and Barry assisted me for the second incident, which is not good manual handling practice.
Peter seems to be wobbly when going to the toilet, while taking down his pants, pulling up is good as he is seated on the toilet bowl.
Should there be an OT assessment arranged for Peter.…
My concern is should Peter fall when there’s a single staff in the house and even if there are two staff, we can continue to do “unsafe” manual handling; bending over and peter.
Is the house supposedly staffed by two staff during the day, and covid 19?…”[37]
Ms Wright agreed during cross-examination that there were times during the day when there was only one staff member rostered on which she said reflected lower support needs of residents at those times. She confirmed that the Core Roster in evidence was only the minimum, and that additional staffing would be rostered to supplement the minimum staffing levels if resident needs changed. She noted that the Core Roster did not include the active night staff that had been rostered in and around the period of the Applicant’s dismissal to support the high care needs of one resident. She also confirmed that responsibility for rostering sat with the house supervisor.
One of the tasks that staff are required to undertake on arrival for shift is that of the handover. Ms Miles stated during cross-examination that this involved a number of activities including logging on via Chronos, doing a verbal handover with the staff member already rostered on and checking the ‘house notes,’ those being the various diaries and progress notes. While a cash count was required to be undertaken during the shift, it was unnecessary to do that at the start of the shift. Both Mr Lane and Ms Miles expressed the view that the handover process did not take long and that the focus of staff on arrival was to get out onto the floor to support the residents, which in the case of the sleepover shift’s arrival was at the busy period of dinner time.
As regards cooking in Keystone, Ms Miles gave evidence that;
·there is a weekly menu plan prepared by one of the residents although sometimes the plan is not completed which results in residents choosing what they want on a daily basis[38];
·residents get their own breakfast, which is usually cereal on weekdays and a cooked breakfast on a weekend[39];
·residents have their own cooking days on which they cook for the rest of the residents, with which activity the staff assist[40];
·it was “very normal” for sleepover staff to arrive for work at 5.00pm and help residents cook dinner; and
·while it was not normal for day shift staff to prepare meals and especially without resident input and contributions, the Applicant would often take it upon himself to cook meals for the residents without their input[41].
In relation to the tasks and structure of Keystone, the Applicant variously stated during cross-examination that;
·he agreed that it was a fluid work environment although issuing medication was always structured;
·agreed that it was the Respondent’s role to provide support to disabled clients to enable independent living;
·agreed with the concept of Keystone being a ‘resident led’ facility but in practice that was not practical for a range of reasons;
·he disagreed that it was normal for sleepover staff to do the cooking on arrival at 5.00pm and that he in fact normally did the cooking when rostered on day shift;
·one of the problems he had identified and raised in team meetings was the lack of structure in task allocation across the different shifts; and
·houses that do not have structure are bad, with one consequence at Keystone being that Ms Miles was able to ‘handball’ tasks to the Applicant.
Mr Lane agreed during cross-examination that there was a general routine in the house each day that revolved around mealtimes and the residents’ external activities such as work and study. He rejected that there was a strict allocation of duties across day, afternoon, and sleep over shifts, while conceding that the Applicant had discussed with him and had sought greater structure in the task allocation. He confirmed his view that the Applicant found the culture of the house ‘challenging.’
Mr Lane says that during discussions with the Applicant where the house task allocation had been raised, he did not agree with or concede to the concerns raised by the Applicant. He reaffirmed his belief that the requests made of the Applicant in the house were reasonable given the approach of empowering residents and expecting staff to ‘pitch in’ and work in a flexible manner.
Mr Lane specifically rejected that it was the role of the day shift staff member (and not sleep over staff) to cook or support residents in cooking the evening meal. As regards there being a guideline as to the time residents were required to go to bed, he said there was no guideline and that it is up to the residents as to when they went to bed. Ms Miles also confirmed this in her evidence.
Mr Lane also gave evidence as to the means of communication across shifts. This was achieved through the use of various diaries and client notes. Those diaries and notes were;
·the ‘House Diary’ (the blue diary) which was used to record appointments of residents;
·the Communications Book (the daily diary) which was used to record what had happened on particular shifts during the day; and
·the Progress Notes which captured resident specific information, expanded on information referred to in the Communications Book and was generally placed in the individual resident files.
Mr Lane also explained that if there were a serious incident there was also the Incident Report process that was required to be followed or the on-call Manager could be contacted. He acknowledged that if there were matters of concern that had arisen in the house they ought to be recorded in the Communications Book and Progress Notes. He stated that he was not aware of any concerns regarding the Applicant’s conduct towards the residents having been recorded in the Communications Book or Progress Notes.
Allegation 1 – leaving group home without notice or authorisation
On 10 February 2021 Mr Lane was working between 8am-5pm while Ms Miles was working on day shift between 10am-7.30pm. The Applicant was rostered for a sleepover shift that day and was rostered to commence at 5.00pm and finish at 9.00am the next morning. An active night staff employee was rostered on from 7.30pm to 7.00am the following morning. The rostered arrangements meant that two staff (the Applicant and Ms Miles) were rostered during the busy early evening period between 5.00pm and when the active night staff arrived at 7.30pm.
Ms Miles states that during her day shift one of the residents, ‘Emeil’ asked her if the Applicant could assist him cook hamburgers for dinner that evening. She further states that it was a recipe that Emeil knew well, he just needed a little assistance, and he would not need to start cooking until around 5pm[42]. Mr Lane confirmed during his cross-examination that such a request by a resident was not unusual, and staff were expected to accommodate such requests.
On arrival at work, at which point Mr Lane had left the facility, the Applicant undertook his normal handover routine in the house office which according to Ms Miles normally took the Applicant between 30-45 minutes[43]. As Emeil wanted assistance to start cooking hamburgers, Ms Miles says she went into the office to speak with the Applicant and said to him “when you are ready, Emeil would like you to help him make hamburgers”[44]. The Applicant responded with a heavy sigh according to Ms Miles and then stated “Heather, I am really tired, I cooked dinner last night and it is not my turn” and repeated that he was not going to do it[45].
Ms Miles states that the Applicant’s anger was palpable which made her nervous and uncomfortable. In response to the Applicant’s reaction Ms Miles returned to the kitchen, explained to Emeil that the Applicant did not want to help him and proceeded herself to assist him cook the hamburgers. While she was assisting Emeil cook the hamburgers she overheard the Applicant talking on the phone in the office and heard the words “sleepover” and “Keystone,” which she later found out was the Applicant calling for shift cover.[46]
At around 5.30pm Ms Miles says that she observed the Applicant heading towards the front door of the house with his sleepover case. He advised Ms Miles that he had called Shift Replacement, which is an internal division of the Respondent that arranges for fill-in staff. He advised her that he was going home, following which he left the house[47]. Ms Miles completed an Incident Report on 10 February 2021 in respect of the Applicant’s departure from the house[48].
Immediately following the Applicant’s departure from the house, Ms Miles called Mr Lane who had just arrived home and informed him of the Applicant’s departure from the house. Shortly after this call, Mr Lane contacted shift replacement and cancelled the shift because of;
· the time it would take for a shift replacement to arrive (could take a couple of hours);
· Ms Miles arranged to stay a little later to partly cover the sleepover shift; and
· arrangements were made for active night staff to arrive earlier.[49]
The Applicant’s sudden departure left Ms Miles to look after the residents by herself, including the resident who required one-on-one care, at the busiest time of the day due to meal preparation, meal serving and evening showers[50]. Ms Miles also states that the Applicant’s departure was disruptive for the residents who seemed quite anxious that he had left without saying goodbye. One of the residents was said to be so upset that he was pacing around the house saying “where has he gone”[51].
Later that evening the Applicant sent an email to Mr Lane alleging that Ms Miles had bullied him. He variously stated in the email that;
·he just had to leave work and go home that evening;
·Ms Mile’s behaviour towards him was affecting his wellbeing;
·he questioned whether Emeil actually asked for him to assist with the cooking or whether Ms Miles had deliberately passed on the duty;
·dinner is usually taken at 6pm and questioned whether sleepover staff were now expected to cook dinner after they arrive at 5pm;
·Ms Miles had recently stated to him that sleepover staff were responsible for medication and that day staff were responsible for meals;
·he always does the cooking and cleaning in the house, and that when he is on day shift, he does not expect sleepover staff to cook; and
·Ms Miles’ request for him to cook with Emeil was “bullying antics” and that there were other unpleasant/bossing antics by Ms Miles that he chose not to elaborate on.[52]
The Applicant stated during cross examination that on arrival at Keystone at 5.00pm on 10 February 2021 he observed Ms Miles sitting on the lounge watching television. He says he proceeded to do his normal handover activities in the office, which he says took approximately 20 minutes, whereupon Ms Miles approached him in the office and told him that Emeil wanted the Applicant to cook hamburgers with him that evening. The Applicant says that he said to Ms Miles that she wanted him to do her job and that it was unfair for sleepover staff to do the cooking. He says he was angry and frustrated, having had a poor sleep the night before when on sleepover due to looking after one of the residents, which he says he reported to Mr Lane on the morning of 10 February 2021.
The Applicant further stated that because of Ms Miles bullying, he did not wish to escalate the confrontation and did not feel safe to complete his shift. He says he decided to contact shift replacement, following which he left the house, advising Ms Miles of this as he left. During cross examination, the Applicant made several concessions including that;
·he left the house on 10 February 2021 without getting approval to do so;
·while he felt “under the pump” following the exchange with Ms Miles, he made a poor decision to leave the house without calling the on-call manager;
·he agreed that he was paid to be at the group home to perform his job competently during his rostered shifts;
·he agreed that his departure prior to being relieved exposed the residents to increased risk although downplaying that increased risk due to the residents’ level of capacity;
·he agreed that he had left Ms Miles to look after 5 residents at one of the busiest times of the day between 5.00-7.00pm, although claiming he had at times been left to look after the residents by himself;
·there was a reason 2 staff were rostered on at the busiest times of the day, including that one of the residents required one-on-one care at times due for example to the need for toileting assistance;
·while claiming that a casual relief may have been as close as 5 minutes away following his call to shift replacement, he could not be certain that a replacement would have arrived at the home prior to arrival of active night staff at 7.30pm;
·while resisting the proposition initially, he agreed that his departure in the circumstances was not professional conduct; and
·accepted that the circumstances of his departure from the house on 10 February 2021 may have distressed Mr Ellis, and that this was of concern to him.
While having made several concessions, the Applicant did not concede that his conduct was reckless, that he threw a tantrum or that he had no regard for Ms Miles in making his decision to leave. He further explained his behaviour based on mental health issues and that for him to have remained at the house that evening would have been detrimental for the residents and his own health. He claimed to have been prescribed medication in late 2020 although he agreed that he had not raised that issue with the Respondent, nor had he subsequently provided any medical certificates or other medical evidence in support of his claim that he had been or was suffering from a medical condition at the time of the incident on 10 February 2021. No medical evidence was adduced in the proceedings.
When further pressed, the Applicant summarised the reasons for his departure from the house on 10 February 2021 as due to him having had a bad shift the night before which he says he reported to Mr Lane, he was not mentally well, the absence of clear rules as to staff responsibilities on each shift and Ms Miles’ constant bullying of him.
As regards the alleged bullying by Ms Miles, the Applicant referred to an email he sent to Ms Nowacki on 7 April 2021 as part of his response to her investigation into his conduct[53]. He agreed during cross-examination that bullying in the workplace is a serious matter and that he would report such serious matters to the Respondent. He further agreed that the allegations contained in the 7 April 2021 email were serious and that apart from raising his concerns in team meetings over the lack of clarity of duties across shifts, he had not previously raised the bullying allegations with the Respondent, although making a claim in the email on 10 February 2021 to Mr Lane.
The Applicant explained his failure to raise his bullying allegations prior to the 7 April 2021 email as being due to his having tried to manage the situation himself and that he had also decided to wait until the formal investigation was underway. He was unable to explain why he felt able to make a bullying complaint about Ms Wright in December 2020 but failed to make a timely complaint in respect of Ms Miles. The Applicant rejected that he made bullying complaints against colleagues he didn’t get on with or that that the timing and scope of his bullying allegations against Ms Miles was merely a defensive tactic taken by him in the context of the formal investigation into his conduct and when he realised that he had done the wrong thing on 10 February 2021. Nor could he explain why he was able to compose a detailed email to Mr Lane on the evening of 10 February 2021 explaining his departure from the house but chose not to elaborate on the bullying claims against Ms Miles referred to in that email.
When cross examined, Ms Miles rejected much of the evidence advanced by the Applicant and variously stated that;
·she was not sitting on the couch watching television when the Applicant arrived at the house at 5.00pm on 10 February 2021;
·she would put the television on and watch it with a resident if a resident requested, and this might involve watching it while cooking dinner;
·rejected that she spent time on her phone while on duty, stated that she left it in the office, referred to the fact that she wore clothes without pockets and that it was inconvenient to carry a phone around all shift;
·denied that she had sought to shift a task (cooking with Emeil) to the Applicant on 10 February 2021 because she did not want to do the task herself;
·maintains that her demeanour during her interaction with the Applicant in the office was professional and that the Applicant’s demeanour was that of anger;
·denies that the Applicant said words to her to the effect that “you are here, why don’t you do the cooking…” or that he said, “you just don’t want to do your job..;”
·after the exchange with the Applicant, she went back to the kitchen to assist the residents;
·the request by Emeil for the Applicant to assist him cook was not an unusual request;
·flatly rejected the proposition that she had manipulated Emeil to make the request for the Applicant to assist him cook; and
·denied any suggestion of a lack of co-operation with or unfriendliness towards the Applicant and opined that the Applicant may have confused her professional approach with that of unfriendliness.
In terms of the bullying allegations, Ms Miles confirmed that no bullying complaint had been raised against her prior to the Applicant’s 10 February 2021 email to Mr Lane. Nor had any of the matters set out in the email from the Applicant to Ms Nowacki on 7 April 2021 been raised with her at any time prior to that date. During cross-examination, she was taken to a few the alleged incidents cited in that email and explained the circumstances of each of those incidents she was taken to and rejected that her conduct constituted bullying.
Allegation 2 and 3 - unauthorised restrictive practices and inappropriate behaviour towards residents
On 11 February 2021, Ms Wright attended the Keystone residence to conduct a welfare check of residents, in particular in respect of the resident, Peter, who was unwell[54]. Ms Wright states that during the welfare check visit one of the residents, Ms Milicevic, said to her unprompted, “he is an asshole and I don’t want him coming back.” When Ms Wright then asked Ms Milicevic who she was talking about she stated “Jeffrie. He is an asshole. He didn’t let me come out of my room and have a cup of tea.” Ms Wright understood this to be a complaint that the Applicant did not let Ms Milicevic come out of her room on at least one occasion[55].
Ms Wright states that such alleged behaviour is in breach of the Disability Services Act 2006 (Vic) which relevantly states as follows;
“Disability Act Victoria 2006: Section 3 of the Disability Act defines seclusion as having the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the NDIS Rules). The NDIS Rules define seclusion as the sole confinement of a person with a disability in a room or a physical space at any hour of the day or night, where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted.”[56]
Ms Wright prepared an Incident Report following her visit to Keystone on 12 February 2021[57].
Ms Wright asked Ms Milicevic whether she wished to make a complaint in response to which Ms Milicevic said yes. Arrangements were made for a family support person (Ms Donna Crocker) and the Respondent’s customer service advocate (Ms Nikki Taylor) to support Ms Milicevic in a meeting that was held on 12 February 2021 at Keystone. Also present were Ms Wright and Ms Miles. Ms Wright handwrote the statement provided by Ms Milicevic during the meeting. The complaint recorded by Ms Wright relevantly stated as follows;
“1. What is your complaint? (who, what, where, when, witnesses)
My complaint is about Jeff. He tells me to go to my room and I am not allowed up before 7am. He tells this to Emeil too”
2. What would you like to see happen about your complaint
I don’t want Jeff to come back to my house”[58]
Ms Wright acknowledged during cross-examination that while she took Ms Milicevic’s formal complaint and wrote it herself, it was an oversight not to sign or date the form. Ms Brinn also confirmed that the failure to sign and date the complaint forms was an unfortunate oversight although she was nonetheless comfortable with the interview process conducted with Ms Milicevic given the support provided to her during the meeting on 12 February 2021. Ms Brinn also confirmed that while they were not in evidence, there were guidelines for the taking of complaints from residents that had regard to the cognitive capacities of residents and their support needs.
Ms Milicevic was interviewed by Ms Nowacki during a formal investigation into the Applicant’s conduct. The following summary of that interview was recorded in the Investigation Report;
“The general evidence of all of the staff interviewed was to the effect that VM does like to get up early and she can often be very noisy which disturbs the rest of the house. Accordingly, other staff have an arrangement with VM whereby they bring her a cup of tea or coffee in the morning, and she stays quietly in her room watching TV until a bit later in the morning. Evidence suggests that she could get up at 4am and start banging around very loudly. Those interviewed felt that this was a satisfactory negotiation with VM and respected the rest of the house. In her investigation interview, VM also said she was happy with this arrangement. However, VM also said that Mr Trika failed to provide her with a cup of tea upon request in the morning and simply told her to go back to her room. VM did not think this was very nice or fair.
Active night staff had generally observed this to be the morning practice of Mr Trika in that he would not provide her with a cup of tea and would not allow her to make her own cup of tea. It was stated that this was a different approach to that of the other permanent staff.”[59]
Ms Milicevic also provided a witness statement in these proceedings in which she relevantly states that;
·the Applicant stopped her from coming out of her bedroom, that she woke up and the door was locked, she could not get her breakfast and that she believed the Applicant locked her door; and
·at one time the Applicant had a big argument with her and Emeil over the TV being too loud, following which the Applicant fiddled with the remote and turned it off at night-time.[60]
Ms Milicevic when cross-examined, with the support of Ms Donna Crocker, was unsure of when the incidents of being locked in her room occurred. She also stated that the pantry door was also locked at times, conceded that she had a key to the door of her room but reaffirmed that she was upset she had been locked in her room. She confirmed that while she does not like the Applicant and that he was rude to her sometimes, she didn’t have arguments with him very often. Both Mr Lane and Ms Miles confirmed that the pantry was locked after 10.00pm for reasons of safety of the residents, that is, to avoid the risk of a resident obtaining food late at night and choking in circumstances where sleepover staff were asleep.
The Applicant rejected the various allegations made by Ms Milicevic and variously stated that;
·Ms Milicevic had a dual personality, could be nice if she wanted, didn’t like to be ‘re-directed’ in respect of food and reacted poorly if she didn’t get what she wanted;
·he steadfastly denied restricting Ms Milicevic to her bedroom after or before certain hours of the day and he referred to the house diary notes[61] that confirmed similar bedtimes of residents when he and other staff were rostered on sleepover;
·he did not lock her in her bedroom as it cannot be locked from the outside and she had her own key in any case;
·the use of the term ‘arsehole’ did not surprise him given Ms Milicevic’s temperament;
·resident’s do lie at times to manipulate staff and other residents; and
·denied using the middle finger in an offensive gesture towards Ms Milicevic but agreed that when she had used that gesture while watching a football game on television, he highlighted to her that the gesture was offensive.
Ms Wright further states that when she attended Keystone on 12 February 2021 for the meeting with Ms Milicevic, another resident Mr Ellis, approached her and raised on his own volition an issue regarding the Applicant. Ms Wright was on the phone at the time to Ms Brinn who was invited by Ms Wright, with Mr Ellis’ consent, to listen to the conversation on facetime so that there was a third-party witness to the complaint. Mr Ellis agreed[62].
According to Ms Wright, Mr Ellis stated to her that the Applicant made rules that he did not believe were fair, including words to the effect that the Applicant told him to turn his music down. According to Ms Wright, Mr Ellis further stated that “its my house. Its not Jeffrie’s rules. It’s my rules.”[63] She then provided a spare complaint form to him which he completed and returned to her after she had finished her interview of Ms Milicevic. The essence of Mr Ellis’ complaint was that one of the rules imposed by the Applicant was that of “no talking” and that it was his house not the Applicant’s house[64]. When interviewed by Ms Nowacki as part of the formal investigation Mr Ellis relevantly stated that;
“In DE’s interview, as part of this Investigation, DE stated he had no concerns with Mr Trika and was not asked to turn his music down.”[65]
The Applicant agreed that he had asked Mr Ellis to turn his music down from to time as he had the habit of turning his music up loud which was disruptive for the other residents at night. He denied ever telling Mr Ellis to go to bed and stated that he had a good relationship with Mr Ellis who he said often referred to the Applicant as his ‘dad.’ He also agreed that he would also ask residents to turn the television down if it was too loud.
Mr Wright confirmed during cross-examination that Mr Ellis did play his music loud from time to time and that other staff would also ask him to turn his music down.
Ms Mueni, who is employed as Disability Support Worker by the Respondent, gave evidence in the proceedings, and relevantly states that;
·she was deployed to Keystone in late 2020-2021 for approximately 6 months and that there were 3-6 shifts she recalled working when the Applicant was working[66];
·she noticed a difference in the house when the Applicant was working the sleepover shift in that residents would mostly be in their rooms when she arrived at or after 7.30pm[67];
·she recalled an argument occurring between the Applicant and Mr Ellis during which it was apparent the Applicant wanted him to go to bed and that while the Applicant was not yelling, he was telling Mr Ellis that he “should go to bed now” in a manner Ms Mueni considered inappropriate[68];
·while there was a guideline that residents would go to bed around 10.00pm it was not a “must” and that if the residents wanted to stay up later, they could;
·she recalled that Mr Ellis was unhappy with the Applicant and said words to the effect that “you can’t tell me what to do, you’re not my dad”[69]; and
·she observed the Applicant’s actions to be different to that of other staff on sleepover in their interactions with Mr Ellis, in that she observed Mr Ellis being respectfully requested by other staff to go to bed although still being clear to him that it was his choice to do whatever he wanted[70].
Ms Mueni also gave evidence during cross-examination that there was a notice in the house office which specified that there was a 10.00pm bedtime requirement for residents. Mr Lane rejected that evidence and stated that he had been in the house for 20 years and there was no such notice. He speculated that as Ms Mueni worked as a casual in many different homes, she may have confused Keystone with another house.
Mr Gadda, who is employed by the Respondent as a Disability Support Worker, also gave evidence that;
·he had worked at the Keystone house on a casual basis for approximately 3 months in early 2021 on active night shifts, and recalled working with the Applicant on 2-3 occasions in that period;
·while he did not witness it, he was aware of a disagreement between the Applicant and Mr Ellis, and that Mr Ellis was frustrated with the Applicant[71];
·in the mornings when he was leaving Keystone after a night shift, he observed that Ms Milicevic and another resident would be awake and getting up and that he would see other staff engaging with Ms Milicevic by making her a cup of tea whereas he never observed the Applicant doing this[72]; and
·he confirmed during cross examination that he had no knowledge of a 10.00pm bedtime guideline but residents generally went to bed by 10.00-10.30pm.
Ms Miles stated during cross-examination that she had heard complaints from active night staff regarding restrictive practices applied by the Applicant. She could not recall whether such complaints had been referred to the house supervisor by herself or active night staff. Nor could she recall making any records or notes herself regarding those reports.
The Applicant’s dismissal
On 11 February 2021, after becoming aware of the 10 February 2021 incident involving the Applicant, an Incident Review Group (IRG) was established involving the General Manager, the Senior Manager, Operations Manager, Quality Business Partner and People and Culture Business Partner. Following a review of the information that was available, the IRG determined that a formal investigation was required and to suspend the Applicant from work pending the outcome of the investigation.[73]
On the evening of 11 February 2021, Ms Brinn contacted the Applicant by phone and advised him of his suspension from normal duties and then subsequently confirmed this in writing in a letter dated 11 February 2021[74] (the Suspension Letter). The Suspension Letter foreshadowed that a detailed letter of allegation would be provided to him shortly, that the matter may be reported to the Police and that it was a mandatory requirement that the Respondent reports the incident under the Disability Workers Exclusion Scheme (DWES).
On 5 March 2021, after the resident complaints had also been considered, a detailed letter of allegations[75] (the Allegations Letter) was sent to the Applicant by Ms Brinn. The letter set out the following allegations which may be summarised as follows;
·Allegation 1 - that the Applicant breached the Respondent’s Code of Conduct and other policies by leaving the group home shortly after arriving for work without authorisation or notification to the House Supervisor and/or Operations Manager, resulting in the remaining staff member being responsible for the 5 residents, one of whom required one-on one care;
·Allegation 2 - that the Applicant breached the Disability Act, Respondent policies and the Victorian Charter of Human Rights by engaging in inappropriate conduct/restrictive practices including;
a) On or about 18 January 2021 you did not allow customer DE to play music or you required it to be turned down.
b) On numerous occasions, including on or about 12 January 2021, you told customer VW to be quiet and that she has to watch TV in her bedroom until 7am and then she is allowed to come out.
c) On numerous occasions, including on or about 12 January 2021, you did not allow customer VW to come out of her bedroom before 7am.
d) On numerous occasions, including on or about 12 January 2021, you directed customer DE to go to bed at 10pm.
e) On numerous occasions, including on or about 12 January 2021, you did not allow customer DE to watch TV or listen to music.
·Allegation 3 - That the Applicant breached the Respondent’s Code of Conduct and Respondent policies by engaging in inappropriate conduct including;
f) On 12 February 2021, a customer has advised staff of concerns that you yell at/speak inappropriately with both Ms Milicevic and, that you have twice told Ms Milicevic to go away and that you have gestured to Ms Milicevic with your middle finger in an inappropriate manner.
g) On 13 February 2021, a customer advised staff of concerns that you tell them to not talk or words to this effect.
An independent external investigator Ms Peta Nowacki of Working Together was engaged to conduct an investigation. The decision to appoint an external investigator was taken because the Applicant had already made various complaints regarding certain staff members. Ms Nowacki conducted her investigation in the March-June 2021 period[76].
The Applicant was interviewed by Ms Nowacki on 7 April 2021 following which he was sent a record of interview on 7 April 2021[77] which he was invited by Ms Nowacki to confirm the accuracy of or make any changes he wished to make. The Applicant responded to this email with an edited version of the record of interview[78]. It is noted that the Applicant was interviewed by Ms Nowacki prior to her interviewing other witnesses to the alleged conduct of the Applicant.
The Applicant says that he requested documents during Ms Nowacki’s investigation. Ms Trevitt states that she has made enquiries with Ms Nowacki regarding this statement and that she was assured by Ms Nowacki that had the Applicant made such requests those requests would have been conveyed to the Respondent[79].
On 30 June 2021, the final Investigation Report of Ms Nowacki was provided to the Respondent[80]. The relevant factual findings made in the Investigation Report were as follows;
·In respect of Allegation 1 it was substantiated that Mr Trika left the house shortly after arriving on shift without authorisation or notification to the House Supervisor to Operations Manager or On-Call. It was also substantiated that this left a staff member, Ms Miles, alone with five customers, one who requires 1:1 care.
·In respect of Allegation 2 it was substantiated that Applicant;
o did not allow DE to play his music or required it to be turned down.
o on numerous occasions, including on or about 12 January 2021, told customer, VM, to be quiet and that she has to watch TV in her bedroom until 7am and then she is allowed to come out;
o on numerous occasions, including on or about 12 January 2021, did not allow customer VM to come out of her bedroom before 7am;
o on numerous occasions, including on or about 12 January 2021, directed customer, DE, to go to bed at 10pm.
o on numerous occasions, including on or about 12 January 2021, did not allow customer, DE, to watch TV or listen to music.
·In respect of Allegation 3 it was substantiated that the Applicant;
o had yelled at VM and ER as alleged;
o had used words to the effect to DE of “don’t talk”
·In respect of Allegation 3 there was insufficient evidence that Mr Trika stuck up his middle finger at VM.
The Investigation Report concluded as follows;
“By conducting himself in the manner that has been factually substantiated, Mr Trika failed to:
▪ Read, understand, and follow all policies, procedures and related documents as advised by Management;
▪ Carry out his duties as provided in individual position descriptions and as agreed with his manager;
▪ Comply with legislation, e.g. Disability Act, Occupational Health and Safety Act, Employment Law, Awards, Privacy Legislation as required and/or;
▪ Consider his own safety and the safety of the people Home@Scope support whilst at work and follow health and safety guidelines and procedures; and
▪ Provide appropriate customer support, choice for customers and the ethos/culture of the house in which customers reside.”[81]
After receiving the Investigation Report, the IRG met to discuss and determine how to proceed. The IRG determined that the proposed disciplinary action was that of the termination of the Applicant’s employment. On 1 July 2021, Ms Brinn wrote to the Applicant setting out a summary of the Investigation Report findings[82] (Investigation Outcome Letter). Ms Brinn advised the Applicant in the letter that he was required to attend a meeting at the Respondent’s Box Hill Office on 5 July 2021 to discuss the findings and proposed outcome. The Investigation Outcome Letter also relevantly stated that;
“…
At this meeting you will be given an opportunity to respond and provide any further explanation that might mitigate your conduct, and show cause why your employment should not be terminated.
You may have a representative or support person attend the meeting, please let me know who that person will be. A Record of Meeting and Employee Response document will be completed and a copy will be provided to you.
…”
The above-referred meeting date was subsequently moved to 15 July 2021 at the Applicant’s request. He attended the meeting on that date and was accompanied by a support person. The Respondent was represented by Ms Brinn and Ms Trevitt at the meeting. Ms Trevitt states that the following matters were discussed during the meeting;
(a) I explained the process of the meeting and that Mr Trika would have the opportunity to respond to the findings against him.
(b) Mr Trika advised that he felt like he needed certain documents to enable him to provide a further response to the findings. I confirmed that any document requests by Mr Trika would be reviewed and provided if it was appropriate and if they had been relied upon by the investigator.
(c) Mr Trika advised that he disputed each of the findings. He noted his opinion that he did a significant amount of cleaning and cooking during day shifts. He said that he had asked for a "job list" for each shift that he worked and that this had not been provided. I note that this is not the practice of the Keystone Residence and again demonstrates Mr Trika's lack of understanding of the residents and the principles of customer choice.
(d) Mr Trika stated that he felt the one and a half hour meeting was "rushed" and that he still had more to get through. I advised Mr Trika that if he felt the meeting was insufficient time to provide his response, he would be able to add additional information for Home@Scope's consideration by email.[83]
On 14 July 2021, the Applicant wrote to Ms Trevitt and requested house progress notes to assist him respond to the allegations/findings. Ms Trevitt responded to the Applicant in an email dated 23 July 2021[84] in which she;
·advised that she would shortly provide him with a copy of the meeting notes from the 15 July 2021 meeting;
·provided a copy of an Incident Report relating to the allegations against him which the Respondent was unaware had not been provided to him; and
·responded to the Applicant’s request for house progress notes by confirming they had not been relied on in the investigation.
Ms Trevitt met with the Applicant on a further two occasions between 23 July and 10 September 2021. On one occasion she met with the Applicant at the Respondent’s Hawthorn offices and allowed him access to the house progress notes to which he had requested access. While allowed to view and take notes, the Applicant was not allowed to take copies due to their being confidential resident notes[85].
The Applicant stated during his cross-examination that the Respondent failed to provide all of the house notes requested by him. Ms Trevitt rejected the Applicant’s claim and stated during cross-examination that the Applicant requested them for the 2-3 days before and after each of the alleged incidents cited in the Investigation Report, which she says the Applicant was given access to. She further stated that after having been given access to the house notes, the Applicant made no further requests for access to documents.
When cross-examined in relation to the Investigation Report, Ms Trevitt maintained that the report was thorough but conceded that there were some errors in the report. For example, the date of the interview conducted with the Applicant by Ms Nowacki, was cited as 21 April 2021 when in fact it was conducted on 7 April 2021. There was also an error in relation to the date of the Mr Lane’s alleged counselling of the Applicant over his leaving the house early on a previous occasion.
On 10 September 2021, the Applicant wrote to Ms Trevitt and provided a detailed 66- page response to the findings made against him[86]. The Respondent considered the Applicant’s response but determined that it did not alter its view that the Applicant had engaged in the alleged conduct, that such conduct amounted to serious breaches of its policies and procedures and therefore constituted serious misconduct.[87]
On 12 September 2021, the Applicant sent an email to the Respondent’s CEO in relation to the disciplinary process that was then underway. The email traversed the material that was contained within the above-referred response provided by the Applicant to Ms Trevitt on 10 September 2021[88]. Further correspondence was sent by the Applicant to the CEO on 15 October 2021. The CEO did not respond to either correspondence.
On 22 October 2021, Ms Brinn wrote to the Applicant inviting him to a meeting on 26 October 2021 to discuss the outcome of the disciplinary process. The Applicant was invited to be accompanied by a support person.
Ms Brinn stated during cross-examination that the decision to terminate the Applicant’s employment was not taken by her or the IRG. Rather, the decision was taken by the General Manager to whom she reported, along with the General Manager Human Resources. She states that her recommendation was that the Applicant be dismissed and confirmed that the decision considered all of the information including the Investigation Report and the Applicant’s detailed response provided on 10 September 2021. She confirmed that in making her recommendation to dismiss the Applicant, she had lost trust and confidence in him.
On 26 October 2021, Ms Trevitt and Ms Brinn met with the Applicant via Zoom due to Covid restrictions. The Applicant had been offered the right to be accompanied by a support person but advised that he was happy to proceed without one for that meeting. The Respondent confirmed the Applicant’s termination of employment at that meeting[89]. A letter confirming the Applicant’s termination of employment was subsequently issued by Ms Brinn on 26 October 2021[90] (the Termination Letter). The Termination Letter relevantly states as follows;
“…
Final outcome of Allegation of Misconduct/Serious Misconduct
We wrote to you on 1 July 2021 informing you of the proposed outcome to incidents that occurred on/about 18 January 2021, as well as 10 February 2021, and invited you to an outcome meeting to provide you an opportunity to give any further response that might inform the final outcome.
a) You attended the meeting on 15 July 2021 with your support person XXXX and Berns Trevitt, P&C Business Partner, from Home@Scope was also in attendance.
You provided us with some verbal information during the meeting, as well as raising a few matters that you wished to have clarified. On review of these queries, you were then provided with additional information during two meetings with Berns on 6 August 2021 and 1 September 2021.
Further to these meetings you provided an extensive response which has since been reviewed in light of the investigation findings and all responses you have provided.
I now confirm that today we have issued you with notice that your employment is:
Terminated, effective Wednesday 27 October 2021
I confirm that any outstanding entitlements will be paid to you in the next available pay. In view of the outcome of termination Home@Scope will extend access to the Employee Assistance Program (EAP) for a further four (4) sessions.
You can continue to contact Converge International on 1300 684 327.
Please contact myself by email at XXXXX X if you have any queries or subsequently require further information about this matter.
…”
The Applicant claimed that the decision to terminate his employment was “premeditated’ and agreed with the proposition put to him that he believed he had been “stitched up.” He also confirmed his belief that Ms Miles and Ms Wright had an “axe to grind” in relation to him and that some of the Respondent’s documents were “tainted and fabricated.” He confirmed that he didn’t trust some of the staff but pointed to the fact that the Respondent had many houses under its management which he could be redeployed to if he were reinstated.
Ms Brinn and Ms Trevitt were questioned as to whether any alternative forms of disciplinary action were considered by the employer. They were specifically taken to the Respondent’s “Managing Misconduct Policy & Procedure”[91] where the disciplinary steps are set out at Step 3 of the Disciplinary Procedure in the following terms;
“(b)If the manager determines that disciplinary action is warranted, the manager will refer the investigation report, the proposed disciplinary outcome and employee response to a duly authorised officer who after considering all of the relevant material may take any of the following steps:
o counsel the employee, with the counselling recorded on the employee’s personnel file;
o give the employee a first warning, which will be verbal, and a record of the warning recorded on the employee’s personnel file;
o give the employee a second written warning in the event that the employee has previously been given a first warning for a similar course of conduct (this will usually be not more than 12 months after a previous warning for similar conduct);
o give the employee a final written warning in the event that the employee has previously been given a second written warning for a similar course of conduct (this will usually be not more than 18 months after a previous warning for similar conduct);
o reassign the employee from one area of employment to another;
o transfer the employee to a lower level classification;
o terminate the employee’s employment on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months; or
o terminate the employee’s employment without notice where the conduct is serious misconduct within the meaning of the Fair Work Act that is wilful and deliberate (or as an alternative to termination of employment transfer to a lower-level classification and/or issue a final warning without a previous warning, but only in circumstances where the conduct is serious misconduct within the meaning of the Fair Work Act that is wilful and deliberate.”[92]
Ms Trevitt confirmed that given the Applicant’s classification it was not possible to transfer him to a lower-level classification under the Agreement. She also drew attention to the lack of remorse demonstrated by the Applicant throughout the process. Ms Brinn stated that she regarded the Applicant’s behaviour as constituting serious misconduct and she could not be confident the Applicant would not engage in similar conduct if he had remained employed by the Respondent.
Disability Worker Exclusion Scheme
On 11 February 2021, the Respondent notified the DWES Unit within the Department of Families, Fairness and Housing (DFFH) in respect of the events at Keystone. The notification related to the stand down of the Applicant pending an investigation into matters, which if proven could result in the Applicant being placed on the Disability Worker Exclusion List (the DWES List).
On 6 October 2021, the Applicant received advice from the DFFH of the notification made by the Respondent[93].
On 10 December 2021, after receiving information from both the Applicant and the Respondent., the DFFH wrote to the Applicant and advised the following;
“…
We refer to our letter to you of 6 October 2021 and to the Disability Worker Exclusion Scheme Notification form we received relating to you on 11 February 2021
On the basis of the information provided to the Department of Families, Fairness and Housing, the Director of the Disability Worker Exclusion Scheme Unit has formed the view that your name will not be placed on the Disability Worker Exclusion List.
…”[94]
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d)whether the dismissal was a case of genuine redundancy.
Relevant to the determination of the preliminary matters;
·the Applicant was dismissed on 27 October 2021 and filed his unfair dismissal application on 15 November 2021;
·at the time of the Applicant’s dismissal the Respondent employed 2373 employees and is therefore not a small business employer within the meaning of s.23 of the Act;
·the Applicant commenced employment with the DHHS on 29 February 2016 and through a transfer of business commenced with the Respondent 1 January 2021. It follows that at the time of his dismissal he had been employed for a period of over 5 years, that period being in excess of the minimum employment period of 6 months;
·the Applicant was engaged as a Disability Support Worker and was covered in his employment by an enterprise agreement (the Agreement); and
·the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:
(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); and
(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; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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; and
(h)any other matters that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[95] and should not be “capricious, fanciful, spiteful or prejudiced[96].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[97].
Allegation 1 – leaving group home without notice or authorisation
It is uncontested that the Applicant left the Keystone house shortly after arriving at 5.00pm for his sleepover shift on 10 February 2021 after an exchange with Ms Miles in respect of a request by a resident, Emeil, to cook dinner with the assistance of the Applicant. While the Applicant contacted shift replacement for coverage after his exchange with Ms Miles, he did not wait for that replacement to arrive. Nor did he do what he was required to do before leaving a shift early, and that is seek approval of the house or on-call manager.
In leaving the house at approximately 5.30pm he left Ms Miles to manage the busy evening time without support or any certainty that shift replacement would arrive before the active night staff arrived at 7.30pm. The Applicant properly made several concessions in relation to his conduct which are set out in the evidence above at [46].
The significance or gravity of the Applicant’s conduct needs to be viewed in the context of the needs of the residents, of which there were five in Keystone at the time of the Applicant’s dismissal. All the residents had down syndrome with one also suffering from deteriorating health due to dementia which required one-on-one care at times. The deteriorating condition of the latter resident prompted the rostering of active night staff in late 2020 to provide additional support from 7.30pm to 7.00am each day. The increasing care needs of one resident brings into focus the importance of having two staff members rostered on at peak periods of the day, most notably the evening meal and showering period between 5.00-7.30pm.
The evidence was consistent that most of the residents were reasonably independent and could prepare a meal with the direction and support of staff. This highlights that in circumstances where one resident required one-on-one care during the busy evening period, the other residents would be left without support or supervision if only one rostered staff member were present as occurred on the evening of 10 February 2021.
The departure of the Applicant early in his sleepover shift on 10 February 2021 unarguably, in my view, increased the risk to a group of vulnerable residents, more so given the high care needs of one resident. To downplay that level of risk as the Applicant has attempted gives rise to a concern as to whether the Applicant even now appreciates the significance of his conduct on the evening of 10 February 2021. I am satisfied on the evidence that it is not for no good reason that two staff are rostered for the period 5.00-7.30pm each evening. The fact that two staff are rostered in that period speaks to the acknowledged risk and resident support requirements. The fact that one of the residents had deteriorating health and higher care needs magnified the importance of the rostered staffing levels being present on shift.
The Applicant makes the point that two staff are not always rostered on and points to the Core Roster which shows ‘gaps’ in the roster each day where only one staff member is rostered. That is true and Ms Wright confirmed that the staffing levels were set according to resident needs which ordinarily fluctuate during the day, including because of external activities undertaken by residents such as work and education. She also made the point that the Core Roster was the minimum and could be supplemented if required, as occurred with the rostering of active night staff at Keystone. The Core Roster for Keystone did however have one consistent feature, that being the rostering of two staff in the early evening period each day between 5.00-7.30pm, that again reflecting the premium placed by the Respondent on providing greater support to Residents during that period of the day.
The Applicant seeks to justify his abrupt departure from Keystone based on a range of reasons including his having been tired from interrupted sleep on the previous sleepover shift, he was not mentally well, the absence of clear rules as to staff responsibilities on each shift and Ms Miles constant bullying of him.
Turning firstly to the Applicant’s claims of bullying by Ms Miles, the credibility of those complaints are undermined by the following;
·no formal complaints of bullying were made against Ms Miles prior to the 10 February 2021 and aside from being asked to cook hamburgers with Emeil, the email of that date lacked specificity as to other instances of bullying;
·it was not until 7 April 2021 that the Applicant provided a detailed list of further claimed instances of bullying, albeit that list of allegations was provided in the context of his conduct being subject to a formal investigation;
·there was no reasonable explanation provided as to why the complaints made in the 7 April 2021 had not been raised earlier given his concessions during cross-examination that the allegations were serious and that he would report serious matters to his employer;
·while claiming to have endured a prolonged period of bullying by Ms Miles dating back to mid-2020, it was not explained why in an email to Ms Trevitt on 15 December 2021 when lodging a complaint over Ms Wright, he made the point that he had no issue with any other staff, only Ms Wright;
·the willingness of the Applicant to make a complaint in respect of Ms Wright in mid-December 2020 was not reconciled with inaction by the Applicant in respect of claimed problems with Ms Miles, beyond stating he was trying to manage those issues directly; and
·Ms Wright provided credible responses to issues contained in the 7 April 2021 email that were put to her in cross-examination.
I accept that the Applicant raised issues of staff task allocation with Mr Lane and that he (the Applicant) sought more structure in the house and staff routines, which Mr Lane resisted because of the inconsistency of what the Applicant was seeking with the philosophy of the house. Beyond raising issues of task allocation in team meetings, there is simply no evidence of claimed bullying by Ms Miles being raised prior to 10 February 2021. The timing of the bullying complaints in circumstances where the Applicant made clear in mid-December 2020 that he had no issues with staff other than Ms Wright, calls into question the motives of the Applicant in raising the bullying complaint.
While the Applicant denied raising the bullying complaints against Ms Miles as a tactic in defending his 10 February 2021 conduct, I found that denial unconvincing. On the contrary, I draw the inference from the timing of his complaint and the other matters I have set out above that he sought to exculpate his behaviour on 10 February 2021 by raising the bullying complaints against Ms Miles in his 10 February 2021 and 7 April 2021 emails. In my view the Applicant confected and exaggerated his claims of bullying by Ms Miles to impugn her to justify or excuse his own conduct on 10 February 2021. This conduct of the Applicant also raises a significant question as to his honesty in the investigation and his credit as a witness in these proceedings.
Turning to the claimed mental health issues the Applicant says he was suffering from at the time of the 10 February 2021 incident, there was no evidence to support that claim. No contemporaneous medical evidence was put forward during the formal investigation or in these proceedings. Nor was there any evidence that he had raised his medical condition with the Respondent at the time of the incident such that it was likely to impact on his work. The Applicant referred to having been prescribed medication in late 2020 but again there was no probative medical evidence as to on what basis it was prescribed.
As to the Applicant being tired from interrupted sleep suffered during the previous night’s sleepover shift, I accept that may be the case given he had mentioned it to Mr Lane on the morning of 10 February 2021. Tiredness may explain what I find was an ill-tempered response to Ms Miles’ reasonable request for him to assist Emeil in cooking hamburgers, but it does not justify his departure from the house in the circumstances and with the consequences that I have earlier described. I note also that if the Applicant was so tired as to be unable to effectively perform his tasks on the evening of 10 February 2021, it would have been open to him to alert Mr Lane prior to the start of his shift to enable relief cover to be arranged at an earlier time. I also note that as tired as the Applicant was said to be, he composed and sent a lengthy email to Mr Lane at 11.02pm on the evening of 10 February 2021.
Finally, turning to the Applicant’s complaints regarding the absence of structure of staff tasks, this purported justification for the Applicant’s conduct has no merit. As the evidence made clear, the philosophy of Keystone was that of it being a resident led house with staff expected to operate flexibly in supporting resident needs. The complaint of the Applicant goes to reinforce the observations of Mr Lane regarding the Applicant’s struggle with adjusting to the Keystone house approach. The Applicant’s view as to the lack of structure may explain why the Applicant refused to accommodate Emeil’s request for assistance with cooking hamburgers. However, the Applicant’s conduct appears little more than a fit of pique because he felt the house should run in a more structured manner. As previously stated, that view of the Applicant as to how the house should be run had been rejected by Mr Lane given the long-standing house philosophy.
I am not persuaded that the reasons advanced by the Applicant justify his conduct on 10 February 2021. The Applicant was engaged to provide a service to vulnerable residents of Keystone and was required to attend shifts for which he was rostered. According to his own evidence he was a disability support worker of considerable experience. His departure from the shift shortly after arrival showed a lack of regard for the residents and for his colleague Ms Miles. In leaving abruptly without relief or approval he could not have been certain that shift replacement could have been deployed quickly. It placed the residents and Ms Miles at an increased health and safety risk in circumstances where one resident required one-on-one care at times, a point the Applicant was well aware of having specifically raised concerns with Ms Wright on 1 September 2020 regarding a fall of that resident.
The fact that residents of Keystone may have been upset by the Applicant’s hasty and unexplained departure, of which there was some evidence, appeared to have also played no part in the Applicant’s poor decision making on 10 February 2021. That he belatedly acknowledges that point seems more a matter of convenience for the purpose of these proceedings. His departure was unprofessional and inconsistent with a range of obligations he had under both the Code of Conduct and the SIL and STAA Services Practice Manual which are summarised above at [15]-[16] and relevantly includes minimising harm to residents, following safe work practices, avoid conduct that creates risk to residents, respect for colleagues and residents, working co-operatively with colleagues, attending at work for rostered hours and not being absent during rostered hours without approval.
I am satisfied that the Applicant’s conduct in leaving the Keystone house without authorisation on the evening of 10 February 2021 establishes a valid reason for his dismissal.
Allegation 2 and 3 - unauthorised restrictive practices and inappropriate behaviour towards residents
As set out above at [76] the Applicant was found to have engaged in a range of conduct at Keystone that fell into the categories of restrictive practices and/or inappropriate behaviour directed towards residents. The Applicant’s conduct found to have occurred by the Respondent may be summarised as;
·on numerous occasions, confining Ms Milicevic to her bedroom after 10pm and before 7.00am;
·on numerous occasions, requiring Ms Milicevic to be quiet and remain in her bedroom watching television before 7.00am;
·on numerous occasions, not allowing Mr Ellis to play his music, watch television or alternatively requiring him to turn it down;
·on numerous occasions, directing Mr Ellis to go to bed at 10.00pm;
·spoke inappropriately or yelled at Ms Milicevic; and
·told residents not to talk or words to that effect.
The direct evidence before the Commission was limited to that provided by Ms Milicevic, Ms Mueni and Mr Gadda. For the reasons set out below, I found that evidence failed to establish the conduct alleged.
Ms Milicevic was understandably limited in her ability to provide evidence given her condition. She was, however, compelling in her evidence as to her dissatisfaction with the Applicant and did not want him to return to Keystone. I have little doubt from hearing her evidence that she was genuine in that sentiment but the basis for her holding that view was unclear.
In her original statement taken by Ms Wright on 12 February 2021, Ms Milicevic stated that she was told by the Applicant to go to her room and was not allowed out of her room before 7.00am. When interviewed by Ms Nowacki, she stated that other staff brought her a cup of tea in the morning when she got up before 7.00am whereas the Applicant did not. In her evidence before the Commission, she stated that she believed the Applicant locked her in her room and that she and Emeil had also had an argument with the Applicant over the volume of the television.
It emerged in cross examination of Ms Milicevic and Mr Lane that Ms Milicevic had a key to her own room, that her door could not be locked from the outside and that the pantry door was locked each evening for reasons of resident safety. It appears to me that Ms Milicevic may have been confused as to which door was locked that prevented her from getting her breakfast. There is no basis for me to conclude that the Applicant had locked the Applicant in her room. Nor is there any direct evidence that the Applicant confined Ms Milicevic to her room after 10.00pm or before 7.00am.
As to Ms Mueni’s evidence, it was confined to her observing the Applicant telling Mr Ellis that he ‘should’ go to bed in what she regarded as an inappropriate manner although she agreed he was not yelling. Even allowing for her evidence that she observed other staff interacting more ‘respectfully’ with Mr Ellis, there is insufficient evidence for me to be satisfied that the Applicant engaged in restrictive practices with respect to Mr Ellis.
The Applicant agreed that he had asked Mr Ellis turn his music down at times and also agreed that if the volume of the television was too loud, he would also ask the residents to turn it down. I find that conduct unremarkable in circumstances where there are other residents in the house who may be disturbed by loud music or the television being too loud. Further to that point, Mr Lane agreed that Mr Ellis played his music loud at times and that other staff would also ask him to turn it down.
Turning to the observation of Ms Mueni that there was a difference in the house when the Applicant was rostered on sleepover, in that the residents were generally in bed when she arrived, no support for this observation can be found in the house notes summary for January 2021 provided by the Applicant. Those notes revealed no discernible pattern of earlier or later bedtimes of residents depending on which staff member was on sleepover such that it supported the contention that the Applicant required residents to retire early.
Finally, while Ms Miles referred to having heard reports of the Applicant applying restrictive practices when on sleepover, it is significant that no formal reports were made by her or other staff to Mr Lane. Nor was any evidence produced of any reports in the house notes recording such behaviour by the Applicant.
I am reluctant to dismiss or ignore the testimony of Ms Milicevic. She disclosed a strong reaction and resistance to the Applicant returning to Keystone. The Applicant sought to discredit her evidence and responses because of Ms Milicevic’s temperament and his suggestion that residents could be manipulative in their behaviour. I am inclined to conclude that there is some basis for Ms Milicevic to feel aggrieved at the Applicant. The Applicant himself gave evidence that a residence without structure would be ‘bad,’ which is suggestive of an approach that would encourage greater structure and routine, that approach being anathema to the philosophy of Keystone as outlined by Ms Wright and Mr Lane. There is however insufficient evidence to establish that the Applicant engaged in restrictive practices or inappropriate behaviour towards Ms Milicevic or the other residents of Keystone.
It follows from the above that I am satisfied that the Applicant’s conduct in leaving the Keystone house abruptly on 10 February 2021 was sufficiently serious in the circumstances of Keystone being a supported living residence for vulnerable disabled residents, as to establish a valid reason for his dismissal. The other grounds relied on by the Respondent in dismissing the Applicant were not made out in the evidence before me.
Notification of the valid reason – s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[98] and in explicit[99] and plain and clear terms[100].
The Allegations Letter of 5 March 2021 set out in clear and explicit terms each of the three allegations made against the Applicant. While I have found that the Allegations 2 and 3 have not been made out on the evidence before me and as such do not found a valid reason for the Applicant’s dismissal, I have found that Allegation 1 is made out and established a valid reason for his dismissal.
The Investigations Outcome Letter of 1 July 2021 also set out the allegations and findings in respect of each of the allegations. Critically, Allegation 1 that the Applicant left Keystone on 10 February 2021 without authority, was found to have been substantiated. The letter went on to state that the Respondent proposed to terminate his employment because of the substantiated findings and that he would be afforded an opportunity to respond to the findings.
After further correspondence exchanged between the Applicant and Respondent, including the Applicant’s detailed written reply to the allegations and findings on 10 September 2021, the Applicant’s dismissal was communicated in a meeting on 26 October 2021 and was confirmed in writing that same day in the Termination Letter.
The Applicant submits that the decision to dismiss him was “premeditated.” He points to an alleged “axe to grind” held by Ms Wright and Ms Miles against him in relation to bullying complaints made by him. There is no evidence to support a link between the bullying claims made by the Applicant against Ms Wright and belatedly against Ms Miles and his dismissal. Putting aside the questionable veracity of his bullying claims against Ms Wright and Ms Miles, they were not involved in the final decision to dismiss him.
I am satisfied that the Applicant was notified of a valid reason for his dismissal prior to the decision being taken. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment[101].
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly[102]. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[103]
From the evidence it is apparent that the following steps were taken by the employer in the investigation process;
·on 11 February 2021, the Applicant was stood down pending the investigation into his conduct;
·the Respondent appointed an external independent investigator, Ms Nowacki, to conduct a formal investigation, that decision driven in part by the issues that had arisen between the Applicant and senior staff of the Respondent;
·on 5 March 2021, the Respondent set out in detail the allegations against the Applicant in the Allegations Letter;
·on 7 May 2021, the Applicant was interviewed by Ms Nowacki following which he was sent a copy of the record of interview which he was invited to mark up with his edits, which he did and then returned to Ms Nowacki;
·following receipt of the Investigation Report by the Respondent, the Investigations Outcome Letter was sent to the Applicant on 1 July 2021 which set out the findings of the investigation;
·a meeting was conducted on 15 July 2021 at which the Applicant was invited to respond to the findings of the investigation;
·following the 15 July 2021 meeting, additional documents requested by the Applicant were provided to him including access to the house notes that he was seeking;
·on 10 September 2021, the Applicant sent a 66-page response to the Respondent in respect of the allegations, the investigation, and findings; and
·senior management of the Respondent considered the material arising from the investigation, including the Applicant’s response and Ms Brinn’s recommendation and determined to dismiss the Applicant.
The Applicant states that he was denied a reasonable opportunity to respond to the allegation including because he was interviewed by Ms Nowacki before other witnesses were interviewed, that he was not provided with access to all relevant documents including house notes for the relevant period and evidence created by persons with a conflict of interest was relied on by the Respondent.
The Applicant’s complaint that he was interviewed by Ms Nowacki prior to other persons being interviewed and was thereby disadvantaged would have some weight if he had been denied a further opportunity to respond to the allegations and findings. As made clear by the above chronology, the Applicant had further opportunities to comment on and respond to the allegations and findings, which opportunities he took.
I accept that the Applicant was not provided with particular documents as part of the formal investigation, specifically the house notes and the Incident Report form ID 51876. That failing was subsequently remedied by Ms Trevitt providing copies of the requested documents on 23 July 2021 and facilitating access to the house notes in a meeting subsequently held at the Respondent’s Hawthorn office. Significantly, Ms Trevitt, whose evidence I found convincing, states that after having facilitated the Applicant’s access to the house notes, he made no further document requests.
As regards the Applicant’s claim that the Respondent relied on evidence of persons with a conflict of interest, that claim must be rejected. Both Ms Miles and Ms Wright, against whom this particular allegation was levelled both gave evidence and were witnesses of credit. Attempts to impugn their motives and evidence is misplaced. As I have previously found above, the bullying complaints made against Ms Miles were confected and exaggerated. Moreover, they (the complaints) were made after the event by the Applicant to justify or exculpate him for his conduct on 10 February 2021. There is no basis to conclude that her evidence was tainted in any way in the formal investigation conducted by Ms Nowacki. Cross-examination of Ms Miles revealed Ms Miles to be composed, forthright and consistent in her responses.
As regards Ms Wright, true it is that the Applicant had made a bullying complaint against her in mid-December 2020. In the case of the interview of Ms Milicevic, a handwritten note was made by Ms Wright during an interview in which Ms Milicevic had two persons present to support her. Any suggestion that the complaint was manipulated as implied by the Applicant could have been tested, but was not, by posing questions to Ms Crocker who appeared with Ms Milicevic in these proceedings. The suggestion of manipulation was not supported by the evidence. I also note that the investigation conducted by Ms Nowacki did not rely alone on the two complaint forms but involved a series of interviews. Furthermore, Ms Wright was not involved in the final decision to dismiss the Applicant.
It follows from the above that I am satisfied that the Applicant was afforded an opportunity to respond to the reasons related to his conduct relied on by the Respondent in dismissing him. This weighs in favour of a finding that the dismissal was not unfair.
Support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“The factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[104]
The Applicant was invited to have a support person present at each discussion relating to his dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Warnings regarding unsatisfactory performance – s.387(e)
The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed – s.387(f)
The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 2373 employees. There is no evidence before me, and nor did either party contend, that the Respondent’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
The evidence in the matter indicates that the Respondent did have access to the services of an in-house human resources specialist. In the circumstances however, this factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
There are two further matters that I take into consideration. They are firstly the Respondent’s DWES notification to the DFFH on the 11 February 2021 and the subsequent advice received by the Applicant on 10 December 2021 that his name would not be placed on the DWES List. The second issue to be considered is whether the dismissal of the Applicant was harsh in circumstances of his having been summarily dismissed.
Dealing firstly with the DWES notification, there was no evidence before me as to the process of investigation undertaken by the DFFH in response to the DWES notification made by the Respondent on 11 February 2021, beyond the apparent provision of information by the parties to DFFH. Nor was it clear what specific standard of conduct was required to be met to warrant placement of the Applicant’s name on the DWES List. While the DFFH concluded based on information before it, that it would not place the Applicant on the DWES List, such a finding does not assist or bind me in my decision making. In short, it is simply not relevant.
To the extent that DFFH concluded that the Applicant’s conduct fell short of the standard warranting placement on the DWES List, that does not mean that his conduct does not found a valid reason for dismissal or that the Applicant’s dismissal was otherwise not unfair.
Turning to the second matter, that being whether the Applicant’s dismissal was harsh by reason of his having been summarily dismissed. Relevant to my consideration is that of the terms of the Agreement. Schedule C of the Agreement deals with Discipline. Relevantly, Schedule C allows at clause 8(viii) for the summary dismissal of an employee in circumstances where the conduct of the employee is “serious misconduct within the meaning of the Act that is wilful and deliberate”. The Agreement goes on to define serious misconduct at clause 5(d)&(e) in terms similar to that found at Regulation 1.07 of the Fair Work Regulations 2009 (the FW Regs) and states as follows;
“(d) Serious misconduct is as defined under the Fair Work Act and that is both wilful and deliberate. Currently the Act defines serious misconduct, in part, as:
(i)wilful or deliberate behaviour by an Employee that is inconsistent with the continuation of the contract of employment;
(ii)conduct that causes serious and imminent risk to:
(1)the health or safety of a person; or
(2)the reputation, viability, or profitability of the Employer’s business.
(e) Conduct that is serious misconduct includes each of the following:
i.the Employee, in the course of the Employee's employment, engaging in:
(A)theft; or
(B)fraud; or
(C)assault;
ii.the Employee being intoxicated at work;
iii.the Employee refusing to carry out a lawful and reasonable instruction that is consistent with the Employee's contract of employment.”
As made clear by the terms of the Agreement, the obligation to provide notice or payment in lieu is removed in circumstances where the conduct of an employee was found to be ‘serious misconduct’ as defined under the Agreement and the FW Regs. It is therefore appropriate for me to consider whether the Applicant’s conduct, of which I have made findings above, constitutes serious misconduct. In my view it does for the reasons that follow.
Firstly, the Applicant acknowledged his understanding of his obligations under the Respondent’s Code of Conduct and applicable policies. He agreed that he had received these when he commenced employment with the Respondent on or about 1 January 2021 and agreed that he was bound by those documents. He also made several concessions as to his failure to comply with various obligations in those documents when he walked out on his colleague Ms Miles at Keystone on 10 February 2021. I have previously found the Applicant’s explanation for his conduct to be either unconvincing or confected in the case of the bullying claims against Ms Miles. In those circumstances I am satisfied that his conduct was both wilful and deliberate.
Turning to the second limb of the serious misconduct definition, I am also satisfied that the conduct caused serious risk to the health and safety of residents of Keystone. That is because while four of the residents were reasonably independent, they still required support particularly during the busy early evening period of between 5.00-7.00pm. Added to this was the high care needs of one resident with dementia who required one-on-one care at times, particularly in respect of toileting. This was well understood by the Applicant as he had written to Ms Wright on 1 September 2020 specifically raising concern at there being only one staff member in the house at times which he believed created risk given the resident’s deteriorating health and high care needs.
It is almost inconceivable in my view that the Applicant could have previously raised a concern as to the risk (to the high care resident) arising from there being only one staff rostered on at times during the day and then contend that his departure from the house on 10 February 2021 did not create a significant risk. It is unarguable in my view that leaving five vulnerable residents in the house supported by one staff member at the busiest time of the day, when one of the residents may have required one-on-one care, posed a serious and imminent risk to the residents’ health and safety. The Applicant was well aware of that risk having identified it himself in the email to Ms Wright on 1 September 2021.
It follows from the above that I am satisfied that the Applicant’s conduct constituted serious misconduct as that term is defined in both the Agreement and at regulation 1.07 of the FW Regs. The conduct was deliberate, wilful, and caused serious and imminent risk to the residents of Keystone.
While I make no finding on one final matter given the absence of evidence or submissions, it also seems to me entirely foreseeable that an accident or injury to a resident in circumstances where one of the Respondent’s group homes was understaffed, is also likely to pose a reputational risk. That reputational risk and the level of scrutiny of disability care service providers is elevated in the contemporary environment given rising public expectations of care quality and the Royal Commissions established in respect of both aged and disabled care.
Neither of the matters considered under s.387(h) weigh in favour of a finding that the dismissal was unfair.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable[105].
As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his conduct has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters considered weigh in favour of a finding that the dismissal was unfair.
It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
M Chen for the Applicant.
N Harrington of Counsel for the Respondent.
Hearing details:
2022.
Melbourne (by Microsoft Teams):
March 30 to 31;
April 1.
[1] Exhibit A51, Witness Statement of Jeffrie Trika at p.5.
[2] AE500582.
[3] Ibid.
[4] Exhibit R6, Witness Statement of Bernadette Trevitt, dated 10 March 2022 at [7]-[9].
[5] Exhibit A51 at p.5.
[6] Exhibit A41, Return to work and other matter matters email, dated 14 July 2020.
[7] Exhibit A51 at p.5.
[8] Exhibit R4, Witness Statement of Lisa Wright, dated 9 March 2022 at [20]-[21].
[9] Exhibit A6, Email from Lisa Wright to Applicant, dated 2 September 2021.
[10] Exhibit A8. Email exchange between Applicant and Lisa Wright, dated 7&8 December 2020.
[11] Exhibit A54, Applicant email to Ms Trevitt, dated 15 December 2020.
[12] Exhibit A12, Bullying Investigation Outcome Letter, dated 22 February 2021.
[13] Exhibit R6 at [14].
[14] Exhibit A50, Terms and Conditions of Employment – Jeffrie Trika, dated 8 October 2020.
[15] Exhibit A49, DHHS letter to Applicant, dated 16 December 2020.
[16] Exhibit R6, Annexure BT3, Code of Conduct.
[17] Ibid, Duty of Care in SIL and STAA Facilities.
[18] Exhibit R2, Witness Statement of Tim Lane, dated 22 March 2020 at [17].
[19] Exhibit R4 at [9]-[10].
[20] Exhibit R2 at [23].
[21] Exhibit R7, Witness Statement of Olive Brinn, dated 18 March 2022 at [3]-[4].
[22] Ibid at [13]-[15].
[23] Exhibit R4 at [11].
[24] Ibid.
[25] Exhibit R3, Witness Statement of Heather Miles dated 10 March 2022 at [36].
[26] Ibid at [9].
[27] Ibid at [12].
[28] Ibid.
[29] Exhibit R2 at [10].
[30] Ibid at [11].
[31] Ibid at [12].
[32] Exhibit R3 at [10].
[33] Ibid at [12].
[34] Ibid.
[35] Exhibit A41, Variation of Employment Contract, dated 7 August 2020, Roster Annexure.
[36] Exhibit R5, Email chain titled WS – Incident 2 – Workplace Bullying & Work related stress – Ops Manager Lisa Wright, email dated 2 September 2021.
[37] Ibid, email dated 1 September 2020.
[38] Exhibit R3 at [11].
[39] Ibid.
[40] Ibid at [19].
[41] Ibid at [21].
[42] Exhibit R3 at [23].
[43] Ibid at [26].
[44] Ibid at [27.
[45] Ibid at [28].
[46] Ibid at [28]-[30].
[47] Ibid at [31].
[48] Exhibit A15, Incident Report – ID 51677, dated 10 February 2021.
[49] Exhibit R2 [32].
[50] Ibid at [34].
[51] Ibid at [33].
[52] Exhibit A9, Email from Applicant to Tim Lane, dated 10 February 2021.
[53] Exhibit A9.
[54] Exhibit R4 at [28].
[55] Ibid at [28]-[30].
[56] Ibid at [30].
[57] Exhibit A23, Incident Report – ID 51876, dated 15 February 2021.
[58] Ibid, Annexure LW-2.
[59] Exhibit R7, Annexure OB-3 at p.7.
[60] Exhibit R1, Witness Statement of Veronica Milicevic, dated 22 March 2022.
[61] Exhibit A24, email re ‘House Diary’ dated 15 August 2021.
[62] Ibid at [35].
[63] Ibid at [36].
[64] Ibid at annexure LW-3.
[65] Exhibit R7, Annexure OB-3 at p.6.
[66] Exhibit R5, Witness Statement of Angela Mueni, dated 14 March 2021 at [6] & [10].
[67] Ibid at [12].
[68] Ibid at [13].
[69] Ibid at [16].
[70] Ibid at [17].
[71] Exhibit R8, Witness Statement of Mrudul Gadda.
[72] Ibid at [15].
[73] Exhibit R7 at [21]-[23].
[74] Ibid at [24], Annexure OB-1, Letter to Applicant dated 11 February 2021.
[75] Ibid, Annexure OB-2.
[76] Exhibit R6 at [23].
[77] Exhibit A16, Record of Interview, A17 Email to Applicant dated 7 April 2021.
[78] Exhibit A18, Applicant’s amended Record of Interview.
[79] Exhibit R6 at [24].
[80] Ibid at [25], Annexure BT-3.
[81] Ibid at p.11
[82] Exhibit R7 at [28], Annexure OB-4
[83] Exhibit R6 at [29].
[84] Ibid, Annexure BT-6, Email to Applicant dated 23 July 2021 re Investigation Findings and Outcome Meeting.
[85] Ibid at [32].
[86] Ibid at [[33], Annexure BT-7, Applicant response to Investigation Report findings, dated 10 September 2021.
[87] Ibid at [34].
[88] Exhibit A25, Email from Applicant to CEO, dated 12 September 2021.
[89] Exhibit R6 at [36].
[90] Exhibit R7 at [33], Annexure OB-6, Termination Letter dated 26 October 2021.
[91] Exhibit A52, Home@Scope Managing Misconduct Policy & Procedure.
[92] Ibid at p.11.
[93] Exhibit A32, DFFH Letter to Applicant, dated 6 October 2021.
[94] Exhibit A33, DFFH Letter to Applicant dated 10 December 2021.
[95] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[96] Ibid.
[97] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[98] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[99] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[100] Ibid.
[101] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[102] RMIT v Asher (2010) 194 IR 1, 14-15.
[103] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[104] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[105] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
Printed by authority of the Commonwealth Government Printer
<PR740015>
7
0