Joy Lawrence v Calvary Home Care Services Ltd T/A Calvary Community Care

[2016] FWC 175

[2016] FWC 175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Joy Lawrence
v
Calvary Home Care Services Ltd T/A Calvary Community Care
(U2015/8946)

COMMISSIONER HAMPTON ADELAIDE, 15 JANUARY 2016

Application for relief from unfair dismissal – casual support worker – alleged misconduct in not reporting decline in health of client and performing private work in breach of policy – refusal by applicant to attend disciplinary meetings – whether valid reasons for dismissal – whether dismissal harsh, unjust or unreasonable – findings on credit made – misconduct demonstrated – valid reason satisfied – no procedural unfairness – whether dismissal harsh – dismissal not unfair – application dismissed.

1. Background and Case Outline

[1] Joy Lawrence has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal from her employment with Calvary Home Care Services Ltd T/A Calvary Community Care (Calvary).

[2] Calvary is a large, Catholic health care organisation that provides health care in both institutional and private residential settings. Calvary operates throughout Australia and Mrs Lawrence was employed to work in its operations in Port Augusta, South Australia.

[3] Mrs Lawrence commenced with Calvary in April 2001 on a casual basis, and worked in the role of a Support Worker until her dismissal on 3 June 2015. Mrs Lawrence’s employment was subject to the Calvary Home Care Services Support Workers’ Enterprise Agreement South Australia 1 and a written contract of employment.

[4] Mrs Lawrence was dismissed on the basis of alleged performance and conduct issues. In particular, Mrs Lawrence was dismissed for allegedly failing to report the deteriorating health of a client of Calvary that she was responsible for, breaching Calvary’s policies and procedures by accepting work for cash payments in a private arrangement, and failing to comply with a number of lawful and reasonable directions that related to Mrs Lawrence’s required attendance at the Calvary offices to discuss the employer’s concerns in relation to the above matters.

[5] Although engaged as a casual employee, Calvary accepts that the nature of that service is sufficient for Mrs Lawrence to be otherwise protected from unfair dismissal as contemplated by s.382 of the Act and there is a valid application before the Commission. In that regard I note that an extension of time was granted by O’Callaghan SDP 2 to permit this application to proceed.

[6] Mrs Lawrence was represented by a friend, Mr Williams JP, and contends that there was no valid reason for her termination. Mrs Lawrence submits that she was a dedicated employee who has not been treated correctly by Calvary. Mrs Lawrence further contends that she used her initiative and skills when dealing with a client of Calvary’s and there was no need to report the health matter of the client to Calvary given all of the circumstances. That is, Mrs Lawrence was not the care worker for the client when she was hospitalised and Mrs Lawrence had acted in a dedicated fashion at all times.

[7] In relation to the provision of additional services to the client, Mrs Lawrence contends that she had to ‘work outside the square’ and felt she owed a duty of care to the client and this meant that the “shopping shifts” were necessary despite being declined by Calvary. In that regard, it was submitted that the employer placed too much emphasis upon its policies and manuals.

[8] Mrs Lawrence also contends that she felt threatened about meeting with the Calvary due to an incident/confrontation that occurred in 2012. That is, she was trying to protect her basic human rights and that she was aware that attending a meeting with Calvary, could and would, result in further altercations and she didn’t want this type of disturbance interrupting the studies that she was undertaking at Calvary at the time. Mrs Lawrence admits that she took a calculated decision not to respond or attend to any of the employer’s letters concerning the meeting but contends that Calvary failed to recognise the importance of her studies. Additionally, Mrs Lawrence did not want to be involved in any investigation because she was heavily involved in her studies and was trying to commit herself to the training course at the time.

[9] Mrs Lawrence also contends that she was “suspended” at the time and had been advised that she was not to present herself to the employer’s office.

[10] Mrs Lawrence also contends, in effect, that the loss of her employment and the significant personal consequences which flowed from that decision, made the decision unfair. That is, Mrs Lawrence’s life and indeed world has been “turned on its head through an act or unscrupulous behaviour by Calvary….” 3 In addition, Mrs Lawrence submits that the manner of her dismissal, being given a letter in the context of her attendance at a training course, was cruel and unjust.

[11] Originally Mrs Lawrence sought compensation of at least $100,000. 4 However, in final reply submissions compensation to the amount of $66,000 was claimed “for loss of salary, public embarrassment, stress and other health related matters”.

[12] Calvary was represented 5 by Mr Rashmi Somu, General Manager – Human Resources, and contends that the dismissal was not harsh, unjust or unreasonable and that the application itself should be dismissed. Rather, Calvary contends that it had valid reasons for dismissal as Mrs Lawrence failed to comply with Calvary’s policies and procedures and failed to follow lawful and reasonable directions. It contends that it was the repeated refusal of Mrs Lawrence to meet with Calvary, together with the seriousness of her conduct and performance, that resulted in Calvary terminating the casual employment of the applicant.

[13] Calvary contends that the ultimate catalyst for termination of Mrs Lawrence’s employment was her refusal to attend meetings with Calvary in relation to its concerns of her conduct and performance. In that regard it noted that Mrs Lawrence was able to attend the Calvary’s premises at least twice during the period of her “suspension” for other purposes to her benefit (i.e. training funded by Calvary), but was unwilling to meet with her Manager as directed. Calvary submits that this only reinforces the deliberate misconduct of the applicant in refusing to meet to discuss the serious matters of concern.

[14] Calvary also contends that Mrs Lawrence admits, or at the very least does not deny, that she undertook work for cash payments by private arrangements with a client and that this was in direct breach of the organisation’s policy and the applicant’s obligations.

[15] Calvary contends that Mrs Lawrence made a calculated decision not to attend a meeting with Ms Taylor, the Area Manager, and confirmed that she wanted nothing to do with an investigation that Calvary was conducting. Calvary submits that this position confirms that it had a valid reason for dismissal. In addition, Calvary submits that it afforded Mrs Lawrence procedural fairness and complied with the relevant legislation.

[16] Furthermore, Calvary submits that any one of its grounds was sufficient to have justified the termination of Mrs Lawrence’s employment and in particular, the applicant’s refusal to meet with Calvary by itself was sufficient to render the applicant’s case hopeless. The applicant was employed on a casual basis, and as such, had no entitlement to notice of termination of employment or payment in lieu of notice.

[17] Calvary denies that the termination was unfair and submits that the application should be dismissed without any remedy to the applicant. In the event, “the Commission finds that some unfairness, although unlikely”, Calvary contends that reinstatement is not appropriate in the circumstances and that any monetary compensation should be minimal. 6

[18] Given the various significant factual disputes, this application was subject to an extensive hearing in Port Augusta following consultation with the parties as contemplated by s.399 of the FW Act.

[19] Given the absence of external representation for either party and the circumstances of this matter, appropriate assistance and latitude was provided to facilitate the presentation of each case.⁷ This also included:

● Confirming the principal statutory issues and considerations that arose in the matter and providing access to relevant extracts from the FW Act;
● Providing a copy of all of the materials lodged by both parties that the Commission understood was being relied upon as evidence, or alternatively as submissions, in the hearing – prior to commencing – and confirming that the supplied material was complete in each case;
● Providing additional time for the parties, and the applicant in particular, to consider the other party’s material when it was indicated that all or some of it had not been received by their representative; and
● Assisting each of the witnesses to confirm their primary written evidence and raising relevant disputed matters with witnesses where required in the interests of fairness.

[20] However, the parties retained full responsibility for the conduct of their cases and the provision of relevant evidence to the Commission. This was also confirmed at the outset of the hearing.

2. The evidence

[21] Mrs Lawrence provided a witness statement and two statutory declarations, and gave evidence in the matter. Mrs Lawrence also relied on the witness evidence of two friends; Mr Roger Yates and Mr Williams. The evidence of Mr Yates concerned Mrs Lawrence’s attendance at his home to use his telephone on Thursday 21 May 2015, which coincided with a scheduled disciplinary meeting, and his general view of Mrs Lawrence as a worker and the impact of the dismissal upon her. The evidence of Mr Williams confirmed his support for Mrs Lawrence and his role as her representative in this matter.

[22] The witness statement, and an affidavit, provided by Mr Yates, and the written evidence of Mr Williams were received into evidence without the need for cross-examination. I accept that evidence and have taken in into account to the extent that it goes to facts relevant to the determination of this matter.

[23] Calvary provided witness statements and led evidence from the following employees:

● Ms Nicole Roberts – Respite Coordinator;
● Ms Michelle Bussey – Client Services Officer and Care Coordinator; and
● Ms Rosemary Taylor – Area Manager.

[24] Along with Mrs Lawrence, each of the employer’s witnesses were subject to extensive cross-examination by the other party (the contested witnesses). Positions have also been put in submissions that, in effect, the Commission should not rely upon the evidence of the contested witnesses.

[25] Having seen and heard the evidence of the contested witnesses, and considered the totality of the evidence, my observations and findings about their evidence are as set out below.

[26] There was a tendency in some of the evidence to make statements about the fairness or appropriateness of matters. Whilst this is relevant in a broad sense, ultimately these are matters for the Commission to assess on an objective basis having regard to the facts, the circumstances of the parties, and the relevant statutory considerations.

[27] I do not consider that Mrs Lawrence attempted to mislead the Commission on the facts and indeed, she made a number of concessions about conduct that were adverse to her interests. However, her evidence was at times highly subjective, involved inconsistent positions that were difficult to reconcile, and prone to exaggeration on certain issues.

[28] Ms Taylor was heavily involved in the events leading to the dismissal of Mrs Lawrence. I found that the evidence of Ms Taylor to be direct, consistent, and largely objective. I accept that evidence as to the facts, including where it conflicts with any other evidence.

[29] The evidence of Ms Roberts and Ms Bussey was limited in scope, consistent with the extent of their involvement in the events that are relevant to the dismissal of Mrs Lawrence. The evidence of Ms Roberts was to confirm reports that she had received in mid-May 2015 from a Physiotherapist from the Port Augusta Hospital that was assisting a client (Ms J) who was assigned to Mrs Lawrence. I accept the evidence of Ms Roberts that those reports were made and were entered into Calvary’s records. There is no direct evidence about the substance of those reports, however, there is no apparent dispute that the condition of Ms J declined to a point that hospitalisation was required at around that time.

[30] The evidence of Ms Bussey concerned a telephone call made by Ms J on 18 May 2015 in which the client reported that Mrs Lawrence had “resigned and returned my house keys” and further that Mrs Lawrence had, in effect, been helping her with various tasks and had been paid cash for this work. I accept that this call was received by Ms Bussey and that it was entered into Calvary’s records. I will deal with the substance of the allegations as part of my consideration of this matter, noting that it was not possible for either party to lead evidence from Ms J.

[31] Other issues were put to Ms Roberts and Ms Bussey on behalf of Mrs Lawrence and about which they had no direct knowledge. Nothing was put to either of these witnesses that would lead to any issues about the credibility of their evidence.

[32] The Commission also received into evidence a range of documents including those appended to witness statements and a feedback report dated 12 July 2013, a separation certificate given to Mrs Lawrence, incident reports, details of some of Mrs Lawrence’s training achievements, various photos of locations, maps showing the location of Mrs Lawrence’s home in relation to the workplace and the home of Mr Yates, and a “never be with list” confirming where certain care workers were not to be allocated to named clients for various reasons.

3. Mrs Lawrence’s employment and the events leading to her dismissal

[33] Before dealing with the various statutory considerations, it is appropriate to confirm my factual findings based upon all of the evidence that is before the Commission. I set out below those findings, noting that they include general findings to set the context, and findings about two elements that are important in their own right and which created the need for the disciplinary meetings that were ultimately not attended by Mrs Lawrence. Those two elements being an alleged failure to follow procedures and policies associated with private work for a client and the circumstances arising from the deterioration in the health of one of the clients under Mrs Lawrence’s care.

[34] I have also subsequently made findings about the events directly leading to the dismissal and the circumstances at that time.

[35] Mrs Lawrence commenced work with Calvary on or around April 2001 as a Casual Support Worker. As a Support Worker, Mrs Lawrence was required to provide personal care and/or home support services to clients of Calvary in and around Port Augusta.

[36] The ultimate operational management for Calvary’s operations at Port Augusta rests with the Area Manager, Ms Rosemary Taylor. At the time of Mrs Lawrence’s dismissal, her immediate manager was Ms Carol Alphick, Service Coordinator. Ms Alphick was on long service leave at the time of Mrs Lawrence’s dismissal and all matters were dealt with by the Case Managers or Ms Taylor.

[37] As a Support Worker, Mrs Lawrence had numerous duties and responsibilities but essentially her role was to provide personal care and/or home support services to clients of Calvary in the clients’ home. The level and number of duties that are provided by Support Workers is dependent on the needs of the clients and confirmed in the specific client’s care plan. The duties for Support Workers may include:

● Home care or housekeeping, including cleaning, laundry and meal preparation;
● Personal care, including personal hygiene and grooming;
● Medication supervision;
● Respite home care;
● Social support or attendant care; and in some cases not relevant here
● Overnight or 24 hour home care.

[38] Mrs Lawrence was employed on a casual basis and during the year prior to her termination of employment she worked an average of 22 hours a week. During Mrs Lawrence’s time at Calvary she successfully participated in numerous training activities, which included:

● Manual handling and CPR, including the use of a defibrillator;
● Delivery of care services using a palliative approach;
● Providing support to people living with dementia; and
● Other course in completion of a Certificate III in Aged Case.

[39] At the time of her termination, Mrs Lawrence was studying a Certificate IV in Disability Studies organised by Calvary.

[40] In 2012, 8 an incident occurred where Mrs Lawrence allegedly failed to immediately report the declining condition of a client with diabetes who needed to be hospitalised and that she failed to administer medication to a client in accordance with her training. As a result of this incident, Mrs Lawrence was removed from future “medication shifts”, being those shift where a medication competent Support Worker was required.

[41] I note that Calvary does not rely on this incident as part of its position regarding the valid reason for dismissal. Mrs Lawrence relies upon this element as part of her case that she has been victimised by Calvary and I have considered it in that context.

[42] The evidence before the Commission does not permit findings to be made about the full circumstances of that incident. It is clear that Mrs Lawrence feels deeply aggrieved about the outcome of that incident. However, despite making an enquiry with (probably) the Fair Work Ombudsman, no compliant about her treatment was made within Calvary and the matter was not raised again with Calvary until these proceedings. I will deal with the consequences of these feelings in due course. Although Mrs Lawrence suggested that the removal of the medication shifts meant that she lost about 50% of her work, the objective evidence is that her average hours of work did not reduce to that extent after that time.

[43] I note that Calvary has records stating that Mrs Lawrence was not to be assigned to work with a number of clients. The evidence is that this number was at a disproportionately high level when considered in the context of the number of clients and the equivalent records associated with other Support Workers at Calvary. 9

[44] However, the reasons for that restriction would be varied and some cases might well relate to factors beyond the control and circumstances of Mrs Lawrence. Accordingly whilst relevant, I place little weight upon this fact in its own right.

The alleged private work undertaken by Mrs Lawrence

[45] Calvary has in place a number of documented policies and procedures applicable to the work of Support Workers, and the required standards of conduct. Calvary’s policy, Providing Quality Services at Home and in the Community: Policy and Procedures Manual for Support Workers 10(Policy and Procedures Manual for Support Workers) specifically details the required standards of conduct for a Support Worker and provides detailed information about the procedures that Support Workers are to follow. Employees are provided with copies of these polices, and receive regular and on-going training in these policies.11

[46] The Policy and Procedures Manual for Support Workers, specifically details the professional boundaries of Support Workers and instances where termination of employment may occur. The relevant sections are as follows:

“4.10 Professional Boundaries and Unauthorised Visits

Professional boundaries define the limits, responsibilities and interaction between professionals (Support Workers) and their clients. Boundaries exist to protect the Support Worker and the client. Our environment demands strict adherence to maintain professional boundaries. Why?

• Breaches impact the client and the Support Worker. Often the effects are more far reaching and include families, friends and Calvary Silver Circle; and



• Breaches impact Calvary Silver Circle's ability to provide consistent, quality service to all our clients

There can be grey areas that require good judgement. No Support Worker sets out to violate standards of appropriate professional care - it often happens to those who are the most dedicated, caring and loyal. Examples of situations where boundaries have been crossed include, but are not limited to:

• Using a client’s debit card (and password) to quickly get some groceries for the client



• Borrowing money



• Collecting a client’s mail on the way home while they are away



• Dropping in to ‘have a cuppa’ when the client gets home from hospital



• Minding or feeding pets (or having the client mind yours) when on holidays



• Hugging or cuddling a client because they ask you to



• Visiting a client in hospital without permission from the Case Manager or Coordinator

Support Workers are NOT permitted to take a friend or family member to a client’s home, even to wait in the car, or to take a client to their own home, except where this has been approved by the Service Coordinator (in the case of an emergency). Support Workers must always be responsible for getting themselves to and from their client’s homes. Family members or friends are not permitted to take them.

Support Workers are also recommended to avoid non-work related contact with their clients. For example, if you happen to see a client when you are out shopping or at a cafe say hello, be polite and then go about your business leaving the client to go about theirs.

Calvary Silver Circle encourages the development of good rapport between Support Workers and clients. However, non-authorised or out of visits/contacts are not covered under Calvary Silver Circle’s worker’s compensation provisions and could compromise professional standards. Should non­authorised contact with a client be ongoing, your Service Coordinator may review your continued work with this client and with Calvary Silver Circle.

4.11 Termination of Employees

Calvary Silver Circle employees may have their employment terminated if:

● Any illegal activity is undertaken while representing Calvary Silver Circle
● They work under the influence of alcohol or any illegal substances
● They accept work privately from Calvary Silver Circle clients
● They do not attend a scheduled job without notifying the office of their inability to meet the specified work commitment, unless there are extenuating circumstances.
● They work outside of the scope of Calvary Silver Circles policy and procedures
They breach Calvary Silver Circle, clients or co-workers confidentiality

Your employment agreement documents the process for termination. A copy is available for reference at each service centre.”  12

[47] Mrs Lawrence’s most recent employment agreement, signed on 25 August 2008, 13 required that the employee signing the document accept the following:

“ To act within the mission and values of Calvary Silver Circle.

• To abide by the company’s policies and procedures.



• To not canvas, solicit, interfere with or entice away any person, organisation or company who is a client or employee of the Employer, for 18 months after ceasing work with the company.



• To not accept work on a private arrangement with any client I have met through employment with Calvary



• Home Care Services Ltd T/A Calvary Silver Circle.



• To Calvary Home Care Services Ltd T/A Calvary Silver Circle varying the hours of engagement from time to time.



• To ensure that all items provided to me by the company are returned prior to my final pay being made.”

[48] It is also important to note that the Policy and Procedures Manual for Support Workers also states:

“9.3 Purchasing on Behalf of a Client: Money Handling

Employees should not undertake to purchase goods or services for a client without discussion with and approval from the Service Coordinator. If shopping is to be done for the client, this will be specified in the service/care plan.

As far as possible, one person should be responsible for the purchase of goods for the client. No more than $500 is to be provided by the client for shopping or paying bills. If the client wishes to provide more, the Support Worker must ring the Service Coordinator or Case Manager for approval. The client may also provide a completed cheque for the payment of bills. Cheques must not be accepted if they are completed as ‘Paid to: Cash’.

When handling cash or gift cards/vouchers, employees must record details of the money handled on QF439 Record of Client Money Handling to minimise any risk of discrepancies that may potentially occur. All entries are to be signed by the client unless the Service Coordinator has advised that the client is unable to sign. This form may be used for recording cash flow on more than one day (no need for a new form for each errand). Support Workers are to check with the Service Coordinator/Case Manager if the form is to be retained within the client's home folder/communication book (to be collected at the next review) or to be returned to the office with the Support Worker’s timesheet.”

[49] I am satisfied that the policies set out above applied to Mrs Lawrence’s employment and that Calvary took reasonable steps to acquaint her with those requirements and the potential consequences of not following them.

[50] On Monday 18 May 2015, Ms J advised Calvary’s office by telephone that she required a new support worker. Ms J explained that on Sunday 17 May 2015 her assigned support worker, Mrs Lawrence, had “resigned and left the house keys” to confirm she was not returning. I note that Mrs Lawrence was not scheduled to provide services to Ms J on weekends and there is a dispute about exactly how and when the house keys were returned. It was acknowledged by Mrs Lawrence during her evidence that she may have gone into the client’s house on 17 May 2015 however the evidence about this is not clear.

[51] I note that Mrs Lawrence did not “resign” her employment, but did indicate to Ms J, in effect, that she could no longer provide assistance to the client and that Ms J should contact Calvary and seek another Support Worker. This occurred in the context of an apparent dispute about Mrs Lawrence cleaning out the client’s microwave with a particular cleaning product. It is not necessary or appropriate to make findings about whether the conduct of Mrs Lawrence in using the cleaning product, or the response from either party to the dispute, was reasonable. The incident was reported by Mrs Lawrence to Calvary.

[52] During the above telephone conversation, Ms J also disclosed that Mrs Lawrence had been “working” for her, doing shopping, preparing food and feeding her cat. Ms J also alleged, amongst other details, that she had made cash payments to the Mrs Lawrence for the amount of $20 per hour for shopping, plus an extra $50 cash per week for helping.

[53] The evidence reveals that Mrs Lawrence did undertake some additional work for the client, Ms J, and that this work was not provided for in the relevant care plan. This included doing some shopping and receiving some small payment in that regard. Although the extent of the payment is subject to conjecture and may only relate to a contribution to costs and some small left over change, the fact that Mrs Lawrence did some work as part of a private arrangement is not actually in dispute. I also note that the use of the client’s credit or debit card, which was utilised by Mrs Lawrence to pay for some shopping for the client, was also contrary to the Policy and Procedures Manual for Support Workers. 14

[54] I note that there is evidence to support Mrs Lawrence’s contention that she did approach Calvary about having shopping and other services added to the Care Plan for Ms J and that this did not occur. There is however conflicting indirect evidence as to whether this was refused by Calvary, or by the client, and there is no direct evidence on that point. Ms Taylor did however confirm that the number and configuration of care shifts in place at the time of these events was specifically in line with the requests made by Ms J.

[55] I will return to this issue, including some evidence that other private work was performed by Mrs Lawrence, as part of my consideration of the valid reasons for dismissal.

The events associated with the deteriorating health of a Calvary Client (Ms J)

[56] On Monday 18 May 2015, Calvary also received a number of telephone reports from Ms J’s physiotherapist, based at the Port Augusta Hospital. The conversations included concerns about the deteriorating condition of Ms J and the fact that the client was unable to leave her couch, was unwell and that some personal care issues had not been attended to. The physiotherapist advised that he had arranged for Ms J to be taken by ambulance to the Port Augusta Hospital where she was admitted as a patient.

[57] Mrs Lawrence was a Support Worker for Ms J during this time and her last scheduled visit to Ms J’s home was on Thursday 14 May 2015. It is also likely that the disagreement with Ms J about the cleaning out of the microwave took place at that time or on Friday 15 May 2015. I note that Ms J also apparently reported that this occurred on Sunday 17 May 2015.

[58] I also note that Mrs Lawrence was apparently called by the Port Augusta Hospital to assist when Ms J was discharged and returned to her home. It is not clear whether the hospital would have been aware of the fact that Mrs Lawrence was no longer caring for Ms J. Mrs Lawrence apparently provided some on-going assistance to Ms J at that time and Calvary was not aware of that development.

[59] The Policy and Procedures Manual for Support Workers provides at clause 4.2 that Support Workers must:

“4.2 Client Service

• Follow the directions of the Service Coordinator and Client Services Officer.
• Attend clients as scheduled, advising the office of any changes to the schedule prior to the visit.
• Take all reasonable care in the treatment of the client's property and person.
• Monitor the client's wellbeing and advise the office promptly by phone and then fill in a QF045 Incident and Concern Form of any concerns or changes noticed.”

[60] The issue here is whether Mrs Lawrence should have reported what appears to be a significant decline in the health of Ms J. The evidence does not permit a finding to be made about when the health of Ms J declined and whether it would have been noticeable to Mrs Lawrence that a report should have been made. The circumstances were however sufficiently concerning that it was both reasonable and necessary that the issue be raised directly with Mrs Lawrence as a matter of some urgency.

[61] The other important part of this evidence is that these events, and the report about the undertaking of the private work, provided the context for Calvary to seek a meeting with Mrs Lawrence to discuss these and other issues.

The events leading to dismissal

[62] Ms Taylor determined that the above reports and events needed to be addressed with Mrs Lawrence. Ms Taylor sought to meet with the applicant at 12.30 pm on Tuesday 19 May 2015 and another employee, acting on behalf of Ms Taylor, rang Mrs Lawrence prior to that time and requested her to attend the proposed meeting. Mrs Lawrence advised that she would not come in to meet with Ms Taylor and that she had done nothing wrong. Mrs Lawrence was advised that Ms Taylor would contact her directly.

[63] In a telephone discussion later on Tuesday 19 May 2015 Ms Taylor informed the applicant that due to the seriousness of the issues identified, Mrs Lawrence was to be removed from the roster, and not perform any work whilst those issues were investigated. During this conversation, Mrs Lawrence refused to meet with Ms Taylor on the same grounds as advised during the earlier phone conversation. I note that as a casual, Mrs Lawrence was not “suspended” in the same manner as full or part-time employee would be. She was however not given shifts pending the scheduled meeting this was not unreasonable given all of the circumstances including the seriousness of the allegations.

[64] On Wednesday 20 May 2015, Mrs Lawrence attended Calvary’s office at Port Augusta to participate in pre-arranged Calvary funded training. Ms Taylor handed a letter to Mrs Lawrence requiring the applicant to attend a meeting at 1.00 pm on Thursday 21 May 2015. This letter set out the nature of the issues to be discussed, the fact that they were considered to be serious, and confirmed that Mrs Lawrence could bring a support person and access a confidential Employee Assistance Program funded by the employer.

[65] Mrs Lawrence apparently did not open the letter; however, she provided it to Mr Williams who confirmed the effect of the letter. I am satisfied that Mrs Williams was informed that she was required to attend the scheduled meeting and that the purpose and nature of the meeting was clear.

[66] Mrs Lawrence did not attend the meeting on Thursday 21 May 2015 as required.

[67] At around 1.30 pm on Thursday 21 May 2015, Ms Taylor attempted to call Mrs Lawrence to find out why she had not presented for the meeting. However, Mrs Lawrence’s mobile phone appeared to be disconnected. It is likely that Mrs Lawrence’s phone was flat. Following this, Calvary confirmed that it had no record of any advice by Mrs Lawrence that she would not be attending the meeting.

[68] The reasons given by Mrs Lawrence for not attend the meeting and her position in that regard is problematic. Mrs Lawrence’s position, as I apprehend it to be, is that she had previously been treated unfairly by Calvary and that she was not going to put herself through that experience again. It was also argued on her behalf that the training course should not be jeopardised.

[69] In that regard, whatever Mrs Lawrence’s view about her prior treatment by management, there is no reliable evidence that Ms Taylor had spoken to her in an inappropriate manner or to support the notion that any meeting to discuss the concerns arising from the reports received in relation to Ms J in May 2015 would not have been conducted professionally. Further, the opportunity to be accompanied by a support person, which was confirmed in connection with each meeting, is also an important consideration in this context.

[70] There is evidence that Mrs Lawrence went to use the phone at Mr Yate’s house to contact Calvary, however it is not clear to me what the purpose of that call was to be. That is, Mrs Lawrence made it clear in her evidence that she did not intend to attend the meeting or to discuss the allegations that she suspected would be raised. I also note that suggestions by Mrs Lawrence, that the meeting was deliberately scheduled for a time when Ms Taylor knew that the applicant would be unavailable, are lacking in credibility. The alternate suggestion that the purpose of the phone call to change the time of the meeting is also completely inconsistent with Mrs Lawrence’s position that she was not going to attend any meeting with Ms Taylor.

[71] Mrs Lawrence also indicated that she had attempted numerous times to make contact by phone and to leave a message. However, Ms Taylor confirms all calls between 8.00am to 5.00pm are either answered by a staff member at Port Augusta, or automatically diverted to Melbourne where they are answered by a staff member there. The evidence from Calvary is also that there were no issues with phones that day - a large number of calls were received at the Port Augusta office, with only 2 being diverted to Melbourne.

[72] Mrs Lawrence also indicated that she would not attend the meeting, and the meeting subsequently scheduled by Calvary, as she was “suspended” and had been advised that it was not appropriate to attend the workplace when suspended. I accept that she did receive advice from Mr Williams and potentially Centrelink about that issue; however, Mrs Lawrence had been given a written instruction by her employer to attend the workplace for a meeting. Further, twice during the period of “suspension” she did attend the very workplace for training where the meeting was to be held.

[73] It is also unclear, based upon Mrs Lawrence’s various positions, how the employment relationship was to continue, and how a decision to restore shifts was to be made, if she refused to engage with the employer about these issues.

[74] Later on 21 May 2015, Ms Taylor sent an email to Mrs Lawrence’s company email account to advise that due to her non-attendance at the meeting that day, a further time would be made to meet and discuss the allegations. I note that Mrs Lawrence may not have accessed her emails during this period, although it was an established method of communication with staff.

[75] On Monday 25 May 2015, Calvary sent a letter (dated 22 May 2015) by registered post to Mrs Lawrence requiring her to attend a meeting on Friday 29 May 2015. This letter repeated the purpose of the meeting and noted the earlier scheduled meeting that the applicant had not attended. In addition to the other matters set out in the 22 May 2015 letter, this correspondence indicated that non-attendance at the meeting on 29 May 2015 was likely to lead to a recommendation that Mrs Lawrence be dismissed.

[76] Mrs Lawrence failed to attend the meeting on Friday 29 May 2015, and there is no record of any attempt by her to advise that she would not attend, or provide any reason to Calvary for non-compliance with the requirement.

[77] Having consulted with head office, including Mr Somu, Ms Taylor determined that it would be appropriate to dismiss Mrs Lawrence.

[78] On Wednesday 3 June 2015, Mrs Lawrence again attended Calvary’s Port Augusta office for training funded by Calvary. During a break in that training Ms Taylor provided a letter of termination to Mrs Lawrence whilst the two were in Ms Taylor’s office. Mrs Lawrence was informed by Ms Taylor that the letter was a dismissal and encouraged her to open and read the contents. However, Mrs Lawrence, in effect, sought to ignore this and to resume her attendance at the training course. Mrs Lawrence advised that she had a contract and would be finishing her (training) course.

[79] In due course, with the assistance of the trainer, Mrs Lawrence was encouraged to leave the training room, and did so.

[80] Mrs Lawrence did not open the dismissal letter but provided it to Mr Williams who apparently confirmed the termination.

[81] Calvary subsequently issued an employment separation certificate and (incorrectly) cited the reason as being that (the applicant) ceased work voluntarily. This was an administrative error, apparently in Calvary’s head office where such matters are handled.

4. Was Mrs Lawrence’s dismissal unfair within the meaning of the FW Act?

[82] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[83] Mrs Lawrence was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[84] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[85] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[86] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[87] It is convenient to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mrs Lawrence’s capacity or conduct (including its effect on the safety and welfare of other employees)

[88] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 15

[89] In applying this approach, it is also important to recognise that conduct occurs in a context and this must also be taken into account. This might include the circumstances in which any misconduct occurs and the events leading to that point. 16

[90] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.¹⁷ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. 18 I note in that regard that the extent of private work being undertaken by Mrs Lawrence for clients disclosed in these proceedings was not known by Calvary at the time.

[91] In Woolworths Limited (t/as Safeway) v Cameron Brown¹⁹ a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,²⁰ considered when failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(b) (sic) the policy, or a direction to comply with the policy, is unreasonable.”²¹

[92] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,²² Deegan C determined that:

“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” ²³

[93] Mrs Lawrence, in effect, contends that as Calvary had refused to provide the extended shopping service, she had to step in, in order to ensure that Ms J could eat and live in her house. The evidence from Calvary is that if a request for extended services had been made there were a variety of funding sources that could be applied to assist.

[94] Mrs Lawrence also contends that through her further studies she has been trained to “think outside the square” and that is what applied here.

[95] I acknowledge Mrs Lawrence’s motivation in assisting Ms J. However, it was not appropriate to undertake the work as part of a private arrangement in breach of the relevant policy. The evidence also reveals sound reasons why such a policy is in existence and should be followed. 24 Those reasons are associated with the need for clarity around the role and responsibilities of the Support Workers, and Calvary, when undertaking duties. This leads to the requirement that functions are not performed that are not funded or approved. The policies are also necessary to protect the Support Workers and Calvary from claims of the inappropriate handling of client’s money and property. The evidence also reveals that there are proper channels to raise concerns about the needs of clients and to seek additional services.25

[96] The fact that Mrs Lawrence considered that there was too much emphasis upon policies and that extended services should have been provided by Calvary to Ms J, are not in themselves reasons to ignore and breach the reasonable and explicit policy of the employer. I note in that regard that the proper approach to dealing with circumstances when a client makes a request for care outside of the plan was specifically discussed and acknowledged by Mrs Lawrence during an annual performance review conducted in August 2014. 26 I also note that Mrs Lawrence confirmed in her oral evidence that she undertook other work for clients outside of their Care Plans in order to assist them, including in one case exchanging oxygen tanks and being paid $10.00 for that service. Mrs Lawrence also indicated that she did not inform management of this because she did not want to be “carpeted over it”.27

[97] The refusal to attend the scheduled meetings to discuss the concerns arising from the circumstances of Ms J was also a serious omission by Mrs Lawrence. That is, in all of the circumstances, including the nature of the allegations and support mechanisms offered, the instruction to attend was lawful and reasonable. The decision not to attend was misconduct.

[98] In all the circumstances there were valid reasons for the dismissal of Mrs Lawrence related to her capacity or conduct.

Section 387(b) – whether Mrs Lawrence was notified of the reasons for dismissal

[99] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 28

[100] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.

[101] Mrs Lawrence was informed by letter on two occasions about the issues of concern to the employer and was notified that these were being considered in the context of potential dismissal before that decision was taken.

Section 387(c) – whether Mrs Lawrence was given an opportunity to respond to any reason related to her capacity or conduct

[102] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[103] This process contemplated by the Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mrs Lawrence was aware of the precise nature of the employer’s concern about her conduct and had a reasonable opportunity to respond to these concerns. 29

[104] For reasons that would be apparent from my earlier findings, I consider that a reasonable opportunity to respond to the reasons was provided to Mrs Lawrence.

Section 387(d) – any unreasonable refusal by the respondent to allow Mrs Lawrence a support person

[105] There was no request for a support person and accordingly this consideration is not relevant. I do note however that in each of the letters requiring attendance at the meeting, the opportunity to have a support person present was confirmed.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mrs Lawrence – whether she has been warned about that unsatisfactory performance before the dismissal.

[106] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 30

[107] The dismissal did relate to performance, but primarily associated with the applicant’s conduct. In relation to the performance issues the requirement to monitor and report changes in client health and wellbeing were clearly communicated and the importance of this was confirmed as a result of the events with earlier clients.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[108] Calvary is a very large employer and has dedicated human resources staff. In my view, the procedures adopted in connection with the dismissal reflect the reasonable expectations of a business in that context.

Section 387(h) - other matters considered to be relevant

[109] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 31

[110] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,³² (Parmalat) the Full Bench observed:

“[24] ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[111] The factors to be considered in this context include the nature of the conduct and the circumstances of the workplace, the circumstances of Mrs Lawrence and the impact of the dismissal upon her and the existence of any significant mitigating circumstances.

[112] Calvary did not provide notice or pay in lieu and this is consistent with the nature of Mrs Lawrence’s casual employment.

[113] I accept that the loss of a job, particularly one held for a long period of time as in this case, may lead to financial, emotional and other consequences. I also accept that this has been the experience of Mrs Lawrence and I have carefully considered and weighed her evidence about that experience. This has included a reduced sense of worth, the loss of income and all that this brings, and the loss of an opportunity to complete her Certificate IV course. However, those consequences arose for the most part from actions taken by Mrs Lawrence and I do not consider that there are significant mitigating factors of the kind contemplated in Parmalat. Given the nature of the conduct and all of the circumstances evident here, I do not consider that the dismissal was harsh.

Conclusion on nature of dismissal

[114] Having considered all of the evidence and submissions in the context of the statutory considerations I am not satisfied that Mrs Lawrence’s dismissal was harsh, unjust or unreasonable. As a result, the dismissal was not unfair within the meaning of the FW Act.

5. Conclusion and orders

[115] I have found that the Mrs Lawrence’s dismissal was not unfair.

[116] As a result, this application must be dismissed and an Order 33 to that end has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

R Williams JP on behalf of Mrs Lawrence.

R Somu, General Manager, Human Resources for Calvary Home Care Services Ltd T/A Calvary Community Care.

Hearing details:

2015

Port Augusta

26 November.

Final written submissions:

2015

Mrs Lawrence – 7 December.

Calvary Home Care Services Ltd – 30 November.

 1   AE873694.

 2   [2015] FWC 5257.

 3   Written submissions provided at the conclusion of the hearing.

 4   Written submissions provided at the conclusion of the hearing.

 5   An application for permission to be represented by a lawyer was not granted for reasons that were provided to the parties in the lead up to the hearing of this matter. I note in final submissions that Mr Williams (for Mrs Lawrence) contended that Mr Somu should have “declared a conflict of interest” given that he was involved in the dismissal decision. There is no substance in this position, it is not consistent with the objection taken by the applicant to the employer’s application for permission to be represented, and there is no basis upon which Mr Somu’s involvement in the hearing as a representative can be criticised. I also note that Mr Williams was heavily involved in various decisions taken by the applicant in the lead up to the dismissal.

 6   Final written submissions.

7 This was done in a manner consistent with the statutory charter of the Fair Work Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 8   Confirmed by the feedback form – exhibit A7.

 9   Exhibit R2 and evidence of Ms Taylor.

 10   Exhibit R5 – RAT-3.

 11   Exhibit R5 – RAT-4.

 12   Exhibit R5 – RAT-3 (clause 4.11).

 13   Exhibit R5 – RAT-2.

 14   Exhibit R5 – RAT-3 at point 4.10.

 15   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].

 16   See Qantas Airways v Cornwall (1998) 83 IR 102.

17 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

 18   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C, at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

19 PR963023 (26 September 2005) (footnotes excluded).

20 PR928970 (19 March 2003), at [14].

21 Woolworths v Brown at [34].

22 [2009] AIRC 893 (16 October 2009).

23 Lion Nathan at [54].

 24   The evidence of Ms Taylor.

 25   Ibid.

 26   Document RAT-4 attached to the Statement of Ms Taylor.

 27   Mrs Lawrence during oral evidence.

 28  See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 29   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 30  See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 31   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

32 [2011] FWAFB 1166.

 33   PR576183.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575983>