Katherine Ikechukwu v Goodwin Aged Care Services Limited

[2013] FWC 10064

[2013] FWC 10064 [Note: Appeals pursuant to s.604 (C2014/2612) was lodged against this decision - refer to Full Bench decision dated 15 September 2014 [[2014] FWCFB 6405] and 12 December 2014 [2014] FWCFB 8168] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katherine Ikechukwu
v
Goodwin Aged Care Services Limited
(U2013/11308)

COMMISSIONER DEEGAN CANBERRA, 20 DECEMBER 2013

Application for unfair dismissal remedy - dismissal not unfair - application dismissed.

[1] On 8 July 2013, Ms Katherine Ikechukwu (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act)claiming relief in respect of the termination of her employment by Goodwin Aged Care Services Limited (the respondent). The matter was heard on 11 November 2013.

Background

[2] The applicant had been employed by the respondent from 6 October 2010 until her employment was terminated with effect from 21 June 2013.

[3] The respondent operates an aged care facility and the applicant was employed as a carer at that facility. The applicant usually worked night shifts.

[4] According to the letter of termination the dismissal followed ‘breaches of Goodwin policies and procedures, failure to arrive on time for shifts, falling asleep whilst on duty and recent elder abuse complaints’.

[5] The ‘elder abuse complaints’ were based on reports from a number of residents that an employee had removed their VitalCall pendants (pendants used by residents to call for assistance, also referred to as VitalCall buzzers) from their reach, had failed to respond appropriately to their requests for assistance overnight, had spoken to them in an inappropriate manner and had handled them roughly.

[6] At the hearing the respondent relied mainly on the complaints of two residents in particular, Residents B and C.

[7] Resident B had reported that she had used her VitalCall buzzer overnight on the night of 17 June to request pain relief and that the employee who responded had told her to ‘shut up and go to sleep’.

[8] Resident C had reported that on 18 June he had used his VitalCall buzzer to request assistance to go to the toilet but that a staff member had told him that he was not allowed to use the toilet at night time and to use his pad. He had then attempted to go to the toilet unassisted but had fallen and sustained a large tear to the skin on his arm. The same resident had complained that on the night of 19 June he had had his VitalCall buzzer removed from him by a staff member who had told him to ‘shut up and be a good boy’. He had again attempted to climb out of bed unassisted but was moved back to bed by the same staff member who had handled him roughly.

Evidence for the Applicant

[9] In her written statement 1 of evidence, the applicant denied each of the allegations that had been made against her and stated that she was aware such actions were not permitted and would not have engaged in such behaviour.

[10] The applicant’s evidence also went to the manner in which she was informed of her suspension from duty and the notice she was given for the meetings held on 20 and 21 June 2013. According to the applicant:

• She was told not to attend for work on 19 June as “an arrangement was being made to move (her) to the morning shift”;



• She received a text message on 20 June requesting her to attend a meeting, for which no reason was given, at 8.30am that day;



• She requested the meeting be moved to 10am and then advised that she had been delayed;



• She arrived for the meeting at 11am but was told it had been rescheduled for 2pm. Again she was not given a reason for the meeting.



• She was told to bring a support person with her to the meeting but was unable to do so due to the change in the timing for the meeting.



• She was called to a further meeting on 21 June and advised that her responses at the first meeting were not satisfactory.

[11] The applicant claimed that the meeting with Ms Boyd and Ms Anand lasted for about 10 to 15 minutes and Ms Boyd was ‘confrontational and aggressive’. She was upset and cried during the meeting which appeared to her not to be for the purpose of determining whether the alleged incidents had occurred but for extracting a confession from her. The applicant stated that she was not given the names of the residents concerned in the incidents or the dates of the incidents.

[12] The applicant recalled receiving a letter on 21 June 2013 advising that her employment had been terminated.

[13] At the hearing the applicant again denied ever treating a resident in the manner alleged by the respondent. She claimed that the allegation in relation to Resident A was not put to her in the meeting on 20 June. It was also her evidence that the allegation in relation to Resident B was not brought up at the meeting and was not, in any case, true. This was also her evidence in relation to both allegations concerning Resident C.

[14] According to the applicant she was given no information about the purpose of the meeting called for 20 June. In relation to the meeting it was her evidence that:

It was never occurred to me that it was elderly abuse. So when I went to the meeting I was asked by Robyn that I abused a resident and I asked her what exactly is she talking about and she said I assaulted a resident. I told her, "No, I didn't assault any resident. Where did you find that information? It was not given to me." I denied all the allegations that she was throwing on me. And in that meeting Robyn Boyd was very intimidating. She wouldn't give me the chance to explain myself in words. She constantly wanted me to accept what she said and I denied every allegations in that meeting. 2

Robyn Boyd was telling me that I abused a resident and I was asking her which resident. She won't say the names. She won't tell me the room numbers, perhaps which floor it was and I was you know trying to figure out myself which resident is she referring to. The only resident that I can recall was a male resident, that male that I did take care of but every other resident she would say - I do not know what she was talking about in the meeting and all of the accusations she was accusing me of. 3

[15] The applicant claimed that she was not given a proper opportunity to respond to the allegations in the meeting. It was her evidence that Ms Boyd ‘kept talking on top of (her)’ 4 and did not give her a chance to explain herself.

[16] Under cross-examination, the applicant agreed that her employment was for the purpose of caring for aged residents and that she mostly worked night shifts, from about 11.45pm until 7.15 in the morning.

[17] She agreed that there had been some problems arranging the meeting on 20 June but that it eventually took place at 2pm that day. She claimed that at the meeting Ms Boyd had told her that residents ‘were being abused’ but did not tell her what sort of abuse or which resident she was referring to. She conceded that when she arrived at 11am for the meeting and was informed that it had been rescheduled for 2pm she was told that she should bring a support person with her to that meeting. She denied being told that she could bring a support person to the meeting on 21 June.

[18] It was the applicant’s evidence that Ms Boyd did not tell her which residents were involved in the alleged incidents but that she had to figure things out herself. She determined that:

[I]t was the resident that that night he was constantly buzzing and he was under my care and I gave him the treatment that he deserved, respectful treatment. I took him to the toilet. I put him back on the bed. I made sure that I told him that he needs to go to bed and he did. He went to bed. He went to bed to sleep. That was the only resident I can figure out. Every other resident I have no clue who she was referring to. 5

[19] The applicant denied telling Ms Boyd and Ms Anand that her notes would show that she treated the residents properly and stated that the matter of ‘progress notes’ was never brought up in the meeting. Under further questioning the applicant agreed that she had told Ms Boyd that if a resident is under her care she always documents the notes. Further she claimed that in relation to the male resident’s care that was raised in the meeting ‘I told Robyn that I did document his report but Robyn intimidated me and tried to reject that’ 6.

[20] The applicant was asked if she had ever asked anyone if she could remove the VitalCall pendant from a resident. She stated that she had asked her supervisor but she had been told that she could not and had obeyed the rules. She denied that she had been frustrated with residents that called out too often and explained that she had only asked the question ‘for the benefit of the resident if the resident is being distracted by the VitalCall’ 7. When asked if a resident had ever claimed to have been distracted by the VitalCall pendant or to have been uncomfortable with it the applicant responded ‘No’. She denied ever removing a VitalCall pendant from any resident and claimed that she always ensured, when doing her rounds, that the pendant was within the resident’s reach. She also claimed to have taken residents to the toilet on every occasion.

[21] The applicant denied ever falling asleep while on shift or that she had been woken by Ms Soutthida Savatvong on one occasion while in her office. She agreed that Ms Savatvong was her team leader and denied ever raising her voice to her or throwing a set of keys towards her general direction. The applicant conceded that she had had a disagreement with Ms Savatvong about her coming in late on a few occasions claiming that she always called when she would be late. She accused Ms Savatvong on that occasion of being ‘disrespectful’ to her stating that Ms Savatvong had told her that she had been directed to ‘check on her’ and that Ms Savatvong had raised her voice. The applicant claimed to have only turned up late ‘(t)hree times, three times, a few occasions’ 8 in the two and a half years she had worked for the respondent. When questioned further she conceded that it might have been a ’few more’9 but stated that she always advised she would be late. It was also her evidence that she was never more than 10 or 15 minutes late.

[22] It was the applicant’s evidence that she had not been handed her termination letter at the meeting on 21 June but had found it in her letter box when she returned home that day.

[23] Finally, the applicant stated that when asked why her employment should not be terminated she had said that she had ‘every reason (to) work for Goodwin’ because she had worked for Goodwin for three years and that there had been no problem with her work. 10 She denied ever stating to Ms Boyd that the ‘residents don't know what they're talking about as they have dementia’11.

[24] A statement of evidence 12 was filed by Ms Olga Veronica (Vicky) Abraham in support of the applicant’s claim. Ms Abraham also worked for the respondent and often worked with the applicant on the night shift. Ms Abraham approved of the applicant’s work ethic and described the applicant’s manner as assertive and direct but always polite and courteous. Ms Abraham attended a counselling meeting as a support person for the applicant. The counselling meeting was conducted by Ms Boyd and the applicant was issued with a formal warning at the meeting. Ms Abraham believed Ms Boyd’s tone and communication style at the meeting to be aggressive and at times intimidating and bullying.

[25] At the hearing Ms Abraham explained that the counselling meeting was held on 18 March 2013 and concerned the applicant’s failure to attend for work on time and the official warning given to her addressed this matter.

[26] Under cross-examination, Ms Abraham stated that the applicant had asked her whether she could remove the residents’ call buzzers from them. 13

Evidence for the Respondent

[27] Evidence was given by six witnesses in support of the respondent’s case:

• Ms Robyn Elizabeth Boyd, Manager Operations Residential;



• Ms Soutthida Savatvong, Team Leader;



• Ms Alexis Ugwumba, then Team Leader, currently Deputy Care Manager;



• Ms Sukreeti Vasal Anand, Human Resources Coordinator;



• Ms Judith Fishlock, Executive Manager Operations Residential; and



• Mr Paul Gray, Manager of Information Technology.

[28] In her written statement of evidence 14 Ms Robyn Boyd stated that she had been employed by the respondent since 2006 and has an Advanced Diploma in Management and a Diploma of Business. She noted that she is responsible for the day to day management of operations across the residential facility.

[29] Ms Boyd set out the occasions on which performance issues had been raised with the applicant. She noted that the applicant was spoken to by the Care Manager on 18 October 2012 about arriving 15 minutes later for every shift. The applicant was advised that it was not acceptable for her to be late for every shift and the applicant agreed to arrive on time in the future. The applicant was also spoken to about her refusal to work with two other employees and agreed to work appropriately and professionally with her colleagues.

[30] Ms Boyd’s statement also dealt with a complaint made about the applicant in March 2013 by a team leader, Ms Soutthida Savatvong. The substance of Ms Savatvong’s complaint was set out in a letter annexed to the statement and alleged that the applicant was rude to her, yelled at her, told her to go away, refused to carry a pager every night and refused to do a hand over when instructed to do so. Ms Savatvong described in detail the incidents with the applicant.

[31] On 7 March 2013, Ms Boyd held a meeting with the applicant concerning complaints by team leaders that the applicant was arriving up to an hour late for her shifts. Ms Boyd instructed the applicant that she must attend work on time in order to attend the shift handover. It was the applicant’s response that the other team leaders were happy to give a handover at a later time if she was late and that she had begun changing the start times on her sign on sheets when she was late. At the meeting the applicant had raised the matter of her team leader bullying her and was told that a team leader telling her to follow her directions was not bullying. Ms Boyd recommended that formal performance management be commenced against the applicant after the meeting.

[32] On 12 March the applicant was directed in writing 15 to attend a meeting concerning her breach of performance standards. She was told that the issues to be discussed were:

• her failure to attend shifts on time;



• her failure to comply with policies and procedures;



• her failure to follow the team leader’s directions and



• unacceptable behaviour in the workplace.

[33] The meeting was held on 18 March. The applicant originally attended with two support people but only one was allowed to sit in. The notes of the meeting indicated that the applicant had the issues explained to her but denied being late for shifts since the 7 March meeting. It was her view that while she may have been late for shifts she did not do it on purpose and that it was ‘not personal’.

[34] Following the 18 March meeting the applicant was given a first and final warning on 9 April 2013. The warning was delayed as the applicant was on sick leave until that date.

[35] According to Ms Boyd, on 12 June 2013 a team leader reported that the applicant had been asleep in her office when the team leader entered that morning. Ms Boyd attempted to contact the applicant to arrange a meeting to discuss the matter. The applicant did not answer her telephone so Ms Boyd had an SMS message sent to her asking her to get in contact. The applicant did not respond to the text message.

[36] On 17 June 2013 Ms Boyd was made aware of a complaint by Resident B that when she had used her VitalCall button the previous night to request pain relief she was told by the staff member who answered to “shut up and go to sleep”. When the complaint was followed up by Ms Boyd the resident concerned declined to make a statement as she did not want to cause further stress. Ms Boyd determined that the applicant was rostered to work that night, that Resident B had been prescribed pain relief for a recent injury and had only ‘minor cognitive impairment’. It was also determined that despite being prescribed significant pain relief none was administered to the resident on the night of the complaint. The VitalCall logs indicated that the resident did activate her call button that night.

[37] On 18 June 2013 Ms Boyd was informed that another resident, Resident C, together with family members who were visiting him, had complained that overnight he had called for assistance to be taken to the toilet and had been advised by the staff member who answered his call that he was not allowed to go to the toilet at night and to use his incontinence pad. Resident C had attempted to go to the toilet unassisted and had fallen causing injury to his arm.

[38] Upon investigation Ms Boyd determined that the applicant had been rostered on the evening of the incident and had been responsible for the floor on which Resident C was accommodated.

[39] It was the evidence of Ms Boyd that on the morning of 19 June she spoke to the applicant at the hospital by phone prior to the end of the applicant’s shift. She advised her that she needed to meet with her urgently about several complaints that had been made by residents about overnight care. She asked the applicant if she had a support person she could bring to the meeting and then arranged a meeting for 8.30am on 20 June and for the applicant to remain on the premises after the shift that day for that purpose.

[40] When Ms Boyd arrived at work that day she was advised that Resident C had complained that morning that his VitalCall pendant had been removed from him by an overnight staff member and only returned shortly before the morning shift commenced. He also complained that when he tried to get out of the bed on his own the staff member had returned and roughly moved him back to the bed. The resident had identified the staff member who had spoken to him as a ‘dark skinned person wearing a beanie’.

[41] The VitalCall logs showed that there were no calls from that resident between midnight and 6.00am. Ms Boyd made enquiries and found that the applicant had been rostered to look after Resident C’s floor at that time and that it was usual for her to wear a beanie on night shift.

[42] Ms Boyd decided that it was necessary to conduct an urgent investigation into the incidents and that it would not be appropriate for the applicant to continue to work while that took place. As she was unable to contact the applicant she had a staff member send her a text message advising her not to come to work that night and requesting that she contact Ms Boyd urgently.

[43] The applicant did not attend the meeting scheduled for 8.30am on 20 June but phoned about 8.45am to say that she could not be there as she was working on an assignment. She advised that she would attend about 10.00am but failed to arrive. The applicant eventually arrived at 11.30am after Ms Anand, who was also to be involved in the meeting, had returned to her workplace some distance away.

[44] The meeting took place at 2.30pm and was attended by Ms Anand, Ms Boyd and the applicant. According to Ms Boyd she attempted to outline the complaints to the applicant, who interrupted her, stating that she knew which resident Ms Boyd was referring to, denied removing his buzzer or telling him to shut up but complained that he was confused, asking to be toileted when he did not need to go. When it was suggested that another resident had had her buzzer removed from reach the applicant denied this, claiming that the resident was demented.

[45] The meeting continued with Ms Boyd outlining complaints made by the residents and the applicant denying any wrongdoing. After the meeting ended Ms Boyd reported the incident involving Resident C to the Aged Care Complaints Investigation Scheme.

[46] After discussing the matter with senior management, Ms Anand and Ms Boyd arranged a further meeting with the applicant at 9am on 21 June. They advised the applicant that management was not satisfied with her responses to the allegations against her and asked her if she wished to say anything further. The applicant stated that she was a good worker who had worked at Goodwin for 3 years and suggested that overnight care was lacking but that it was the fault of others. When the applicant was asked if she had reported these concerns to anyone in management the applicant stated that she had only raised them with other employees. The applicant became aggressive when asked if she had any reasons why her employment should not be terminated. She stated that she had not removed the VitalCall buzzers or abused residents and claimed that the residents did not know what they were talking about as they have dementia.

[47] The meeting then ended to allow Ms Anand to seek the views of Executive Management. Ms Anand returned later and advised the applicant that her employment was terminated and handed her the termination letter.

[48] When cross-examined, Ms Boyd stated that at the meeting on 20 June several complaints of residents were put to the applicant, including the complaint by Resident A that related to a date in May 2013. She advised that she may not have mentioned the date. She noted that the complaints of residents B and C were put and specific details given. She did not believe that the allegation concerning Resident D was referred to at the meeting.

[49] According to the witness, it has been established that the applicant had been caring for Resident C. She agreed that she had analysed the data logs for Resident C’s VitalCall pendant and established that no call was made during the time that the resident claimed to have had his pendant removed. She also claimed that during the week of the incident it was documented that Resident C had a high level of anxiety and distress, particularly overnight. She conceded that she had not spoken to Resident C but had relied on information gathered by Claire Ballard, the Deputy Care Manager and Alexis Ugwumba, the Team Leader on the floor that night. Both staff had spoken with Resident C and his family.

[50] Ms Boyd stated that she had spoken to Resident B but that the resident had declined to make a statutory declaration concerning her complaint and she did not press the matter with the resident.

[51] When it was put to Ms Boyd that the entire investigation process seemed to take less than 48 hours she responded that there is a legislative requirement to report all allegations or suspicions of abuse as part of mandatory reporting so there were time constraints imposed. In addition, the respondent was used to undertaking investigations and compiling documentation which would then be forwarded to the Executive Manager for review.

[52] In response to a suggestion that at the time she made the report to the authorities there was nothing to actually report, Ms Boyd stated that there was a suspicion and allegations of elder abuse which invoked mandatory reporting. She had made a discretionary report prior to meeting with the applicant.

[53] When it was suggested that she could not be sure that the applicant was the person about whom the complaints were made, Ms Boyd stated she had looked at the progress notes for the various floors and while she was aware the applicant was rostered she took the advice of the shift supervisors about the detail of where the applicant had been working. Ms Ballard was clear that the applicant had been allocated for the shifts to the floor of each of the four residents concerned.

[54] It was the evidence of Ms Boyd that, when she spoke to the applicant on the phone on 19 June she informed her of the nature of the meeting that was to be held and that it was to discuss concerns raised by the residents in relation to overnight care. Ms Boyd also believed that the meeting constituted proper process. When asked if there had been sufficient discussion about the allegations in the meeting Ms Boyd stated that she was quite specific in what was raised and that the applicant was able to identify Resident C and was aware that Ms Boyd was referring to Resident B and her pain relief. It was Ms Boyd’s evidence that the applicant was actually defending her actions. The applicant had responded that she knew who was being spoken about and that they were demented and didn’t know what they needed. It was also Ms Boyd’s evidence that while one resident had a diagnosis of dementia it was at an early stage and he was still oriented to time and place and well able to articulate his care needs.

[55] Ms Boyd denied that the applicant was distressed at the meeting but stated that she was aggressive. She did not look at Ms Boyd and just repeated her claims that the residents were wasting her time. The meeting was going nowhere as the applicant denied the allegations.

[56] When re-examined, Ms Boyd confirmed that the applicant was given a second opportunity to respond to the allegations at the meeting on 21 June. The applicant was well aware of the allegations against her and when given an opportunity to respond stated that she had been with Goodwin for three years and that her colleagues could attest to her work performance.

[57] Further at the meeting, Ms Anand had advised the applicant that the Executive had decided that her employment should be terminated on the ground of gross misconduct and had given her the termination letter.

[58] In her witness statement 16 Ms Soutthida Savatvong, a team leader employed by the respondent noted that she had supervised the applicant on night shifts and had had problems with her including her lateness for work and failure to take direction from her. The witness had complained of these matters to Ms Boyd by email on 7 March 2013. It was also her evidence that about five weeks later she had cause to speak to the applicant about her failure to respond to a resident’s buzzer. According to Ms Savatvong, after the resident’s buzzer was activated and had remained activated for about half an hour, she attended to the resident and then spoke to the applicant reminding her on the need to respond promptly. She stated that prior to attending to the resident she had checked the office where the applicant was situated and found her asleep. Later that night the applicant had asked her if she was allowed to remove the call buzzer from a resident as the resident kept calling to ask for her medication which was not due for another thirty minutes. Ms Savatvong advised the applicant that it was strictly not allowed to remove VitalCall pendants from residents and she would be fired if she did so.

[59] It was also the witness’s evidence that in the early morning on a date in June she noticed that Resident C had not been calling on his buzzer which he had been doing regularly earlier that night. She did not visit his room as the applicant was the staff member rostered to look after the floor. She also recalled receiving a call from Ms Boyd about the same time in June advising her that Resident C had complained that a staff member had removed his VitalCall pendant during the previous night. Ms Savatvong had advised Ms Boyd that the applicant had been responsible for Resident C during that shift and that she was the only person who worked that night who met the description given by the resident of a dark skinned person wearing a beanie. Ms Savatvong also advised Ms Boyd about the applicant’s query about removing pendants from residents.

[60] Under cross-examination, Ms Savatvong agreed that she had not been worried enough to check on Resident C when his buzzer was quiet as the applicant was allocated to his floor. She also agreed that Ms Abraham had, on the applicant’s behalf, asked her about removing VitalCall pendants from residents. According to the witness, she believed that the applicant understood that she was not to remove the pendants. When asked to clarify who had asked the question about removal of the buzzers, Ms Savatvong stated that Ms Abraham had initially asked for the applicant and then had advised the applicant to approach Ms Savatvong directly.

[61] Ms Alexis Ugwumba’s statement of evidence 17 relevantly dealt with the complaint made to her by a family member of Resident C concerning carers telling him he should use his incontinence pad at night and refusing to take him to the toilet. She noted that the resident had had a fall during the night at the same time. It was also her evidence that on 19 June she was informed by another staff member that Resident C had complained of having his buzzer removed during the night and being roughly moved back into his bed when he tried to get up unassisted.

[62] The witness statement 18 of Ms Sukreeti Vasal Anand, Human Resources Coordinator, dealt with the meetings held with the applicant on 20 and 21 June. Ms Anand attended both meetings. She confirmed the evidence of Ms Boyd concerning the applicant’s failure to arrive for meetings scheduled on the morning of 20 June.

[63] So far as the meeting on 20 June at 2:30pm was concerned, it was Ms Anand’s evidence that Ms Boyd had outlined the allegations concerning the residents’ complaints and that the applicant had been aware that Ms Boyd was referring to Resident C and to Resident B. The applicant had denied the allegations, complaining that the residents were confused or had dementia. The applicant also refused to make eye contact with Ms Boyd or Ms Anand.

[64] According to Ms Anand, following the meeting with the applicant she met with the respondent’s Executive Team and discussed the responses given by the applicant. It was determined that, in light of the significant evidence that the applicant was the cause of the complaints, her responses were inadequate. Ms Anand was instructed to arrange another meeting.

[65] At the meeting held at about 9.30am on 21 June, the applicant’s body language remained the same as at the earlier meeting. Ms Anand advised the applicant that the Executive Team was not satisfied with her responses given at the previous meeting and asked her for reasons why her employment should not be terminated. According to Ms Anand it was at this time that the applicant raised her concerns about overnight care at Goodwin. Ms Anand told the applicant that she should have raised any concerns, formally, with management rather than with her colleagues.

[66] When pressed for a reason why her employment should not be terminated the applicant raised her voice and reiterated that the documentation would show that she provided proper care for the residents and that the resident did not know what they were saying as they had dementia.

[67] The meeting ended and Ms Anand made further contact with the Executive Team. The decision was taken to terminate the applicant’s employment and at a further meeting held later that day the applicant was advised of this and, according to Ms Anand’s evidence, provided with a letter of termination.

[68] Under cross-examination, Ms Anand stated that her role at the meeting on 20 June was as a support person for the organisation and for the applicant. She believed that the meeting was run correctly. She stated that a record of the meeting was made after the meeting and agreed that the applicant should have been given a written outline of the allegations before the meeting. She stated that the applicant was aggressive during the meeting and looking away from both her and Ms Boyd.

[69] When re-examined, Ms Anand stated that the applicant understood the allegations that were made at the meeting on 20 June, notwithstanding that she had not been given written notice of them. After Ms Boyd described in detail the complaints that had been made by the residents the applicant had immediately said that she knew which resident they were talking about and said that Resident C was confused and he did not know what he was saying. She said that she did not remove the VitalCall pendant. According to Ms Anand, Ms Boyd had then explained to the applicant that Resident C had anxiety around toileting but was not incontinent, and was mobile but not independent. She stated that he had fallen and had a skin tear whilst trying to go to the bathroom by himself. Ms Anand again claimed that the applicant had made no eye contact with her or Ms Boyd and looked at the wall.

[70] It was also Ms Anand’s evidence that the applicant had answered the questions aggressively but was given every opportunity to respond. Her response was that she had been with Goodwin for three years, held qualifications and her colleagues could confirm that she was a good carer.

[71] According to Ms Anand in the first meeting held on 21 June she again asked the applicant if there was any reason why her employment should not be terminated. The applicant raised her voice and yelled and Ms Anand had asked her to lower her voice. Ms Anand reiterated that the applicant had responded that ‘her documents will prove that she has provided care for the residents’ and that ‘the residents have dementia and they don't know what they're saying’.

[72] The witness statement 19 of Ms Judith Fishlock, Executive Manager Operations for the respondent, dealt with the accreditation standards which apply to the respondent as an aged care provider. She dealt with the definition of ‘elder abuse’ which she noted could take many forms, from physical abuse to neglect. Ms Fishlock pointed out the respondent’s duty of care to protect the rights of vulnerable aged persons within its care.

[73] At paragraph 17 of her statement the witness stated that she was on leave when the allegations were originally made and was advised by Ms Boyd about them by telephone. According to Ms Fishlock, Ms Boyd had said words to the effect of:

“Sorry to bother you Jude but over the past week we have had some troubling reports from residents that pain relief has not been provided, one resident was not assisted to the toilet there have been instances where vital calls have not been answered. One resident described Katherine and reported that she had taken the vital call pendant at midnight and then gave it back in the morning. I have checked the vital call register and he did not call during those times. This is strange because [Resident C] is known to call frequently day and night because of his dependency on oxygen and his need to be assisted to the toilet.

There is a meeting set for tomorrow.” 20

[74] Further at paragraphs 18-20 of her statement, Ms Fishlock described the reasoning adopted by the Executive Team in determining to terminate the applicant’s employment and the importance of dealing with complaints of elder abuse:

18. I returned from leave on 20 June 2013. At that time I checked the records of the vital call register and checked Katherine’s entries in progress notes on the iCare system which did not reveal any notes for the 18^th to the 19^th June 2013 written by Katherine...

19. I had a discussion with Mr Christopher Lamont the CEO on 20 June 2013 after conducting those enquiries at which time I said words to the effect:

Me “The reporting was the correct approach. The events reported are a form of elder abuse and warranted discretionary reporting. We cannot allow a resident’s call pendant to be removed as it is their only way of gaining assistance from the staff. The Resident losing that power and imposing fear and mental anguish on them is neglect and abuse.”

Lamont “We need to ensure that the residents are not being neglected or abused.

Following these reports we have conducted an investigation which shows some recent incidents with Katherine’s care so she has been stood down for the moment. We are meeting with her tomorrow.”

20. The report to the Department and the police was in accordance with Goodwin’s policies and are important steps to ensure that elder abuse is not tolerated.

[75] Under cross-examination, Ms Fishlock stated that, had she been required to conduct the investigation into the complaints against the applicant, she would have done nothing different from the process adopted. She stated that details were provided to the applicant about the allegations and that, in her opinion, the respondent’s policies were followed to the letter.

[76] A witness statement 21 by Mr Paul Gray, annexing the VitalCall registers for relevant periods was tendered without objection or the need for cross-examination.

Submissions for the Applicant

[77] Written submissions were filed on the applicant’s behalf on 23 September 2013 and on 22 October 2013 in response to the statements and documents filed by the respondent.

[78] It was put for the applicant that she had always maintained that she did not commit elder abuse. That such a thing was an action beyond comprehension, particularly for somebody with experience in caring for a number of years. It was also submitted that there were a number of staff members of similar appearance to the applicant who may have been responsible for the alleged conduct.

[79] The applicant’s representative contended that the failure to inform the applicant of the identity of the residents making the complaints was a denial of natural justice and prevented the applicant from making a considered response to the allegations. It was also put that the applicant was given insufficient time to respond to the complaints and felt pressured during the meetings. It was noted that English is not the applicant’s first language and this fact hindered her ability to properly address the matters put to her.

[80] It was noted that the respondent relied heavily on the allegation made by Resident C and that Resident B did not want to make a complaint. It was argued for the applicant that Resident C’s VitalCall logs for the night of 18-19 June did not exhibit any major differences from other nights around that time.

[81] The submissions for the applicant noted that many of the file notes concerning events that were the subject of this matter were compiled by the authors on dates some time after the events occurred and were therefore, less reliable.

[82] It was put that, on the balance of probabilities, especially in the case of Resident C, it should be found that the applicant did not commit the conduct alleged. Further, in light of the fact that the respondent withheld information and thus denied the applicant a chance to respond properly, on the balance of probabilities, it should be found that the applicant did not commit elder abuse and was unfairly dismissed.

Submissions for the Respondent

[83] Written submissions were filed on behalf of the respondent. In summary, it was the position of the respondent that urgent action had been taken to investigate serious allegations of elder abuse and given the nature of the allegations such urgent action was justified. Several meetings were held with the applicant and the details of the allegations were put to her. The applicant was uncooperative in attending for the meetings that were arranged and was abrupt and uncooperative in her responses when she did attend.

[84] In essence, it was submitted that the investigation was properly conducted and the facts uncovered were such that the respondent was justified in concluding that the applicant had committed the alleged behaviour. Further, it was put that the investigation was sufficient for the Commission to conclude, on the balance of probabilities, that the applicant had behaved in a manner that constituted elder abuse.

[85] Moreover, the respondent’s submission was that the context surrounding the allegations was of additional importance, given that the applicant had been responsible for the care of vulnerable older people.

[86] According to the submissions of the respondent there was a valid reason for the dismissal and the applicant had been notified of that reason on a number of occasions, including at the meetings held on 20 and 21 June. It was put that the applicant was fully aware of the allegations that were being put to her, that she even identified the residents that were in question. The applicant was given an opportunity to respond to the reason at each of the meetings. She had been advised to bring a support person to the meetings but failed to do so.

[87] It was also the respondent’s position that the applicant had been given prior warnings about unsatisfactory performance.

Consideration

[88] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of her employment, the applicant was a person protected from unfair dismissal. The respondent is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[89] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.

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.

[90] I will deal with each of those matters separately.

Valid reason

[91] At the outset it is necessary for me to indicate that I found the applicant to be a most unsatisfactory witness. She emphatically denied that any of the complaints made by the residents were put to her in any detail at the meeting on 20 June. It is clear from her later answers to questions that sufficient detail was put to her for her to identify the residents (Residents B and C) who had made the complaints which had prompted the investigation. I accept that not much detail may have been given about the more general complaints made by Residents A and D but these allegations were not relied upon by the respondent at the hearing.

[92] I am satisfied that the investigation conducted by the respondent was sufficient to enable a conclusion to be reached that it was more probable than not that the person who had been complained about by Residents B and C was, in fact, the applicant. It would not have been very difficult to determine which employee was responsible for the care of those particular residents during the night shifts on which the incidents occurred. The incidents occurred on the three nights preceding the commencement of the investigation.

[93] It is understandable that Ms Boyd and Ms Anand were not satisfied with the applicant’s responses to the allegations. The applicant failed to meet with them, as arranged on two occasions on the morning of 20 June. This was not the attitude one might have expected from an employee who had been advised not to attend work as her employer wished to meet with her urgently concerning complaints made by residents about overnight care. In this regard, I accept the evidence of Ms Boyd that she made the reason for the meeting clear when she finally managed to speak to the applicant about the meeting on the afternoon of 19 June.

[94] I am satisfied, on the balance of probabilities, that the applicant was the employee who refused to assist Resident C to go to the toilet as alleged. I am also satisfied that as a result of her refusal Resident C attempted to go to the bathroom unassisted and had a fall and was injured. I am also satisfied that the applicant removed from the reach of Resident C his VitalCall buzzer. Her frustration with Resident C’s constant requests to be taken to the toilet when it seemed unnecessary, was evident in both her responses at the meeting with Ms Boyd and Ms Anand 22 and her reference to the resident who was ‘constantly buzzing’ during her own evidence see [18] above. The removal of the buzzer was both consistent with her comment in this regard and her earlier questions about whether such a removal was allowed. In my view the applicant engaged in the conduct she did because she believed that her conduct would go unnoticed and that the residents would not be believed if they complained. The applicant clearly believed that the cognitive functions of some residents were more impaired than was actually the case.

[95] I am satisfied that there was a valid reason for the applicant’s dismissal on the basis of her treatment of Resident C alone.

Notified of the reason

[96] I am satisfied that the applicant was notified of the reason(s) for the dismissal. I accept the evidence of Ms Boyd and Ms Anand that Ms Boyd outlined the complaints that had been made by residents B and C in the meeting on 20 June. I do not accept the applicant’s initial evidence that no detail was given at that meeting. It is clear from the applicant’s later evidence that her earlier denials were inaccurate. The applicant was fully aware which residents Ms Boyd was referring to, which made it unnecessary for Ms Boyd to go into further detail.

Opportunity to respond

[97] The applicant was provided with an opportunity to respond at the meetings on 20 June and 21 June. If there was more the applicant wished to say about the allegations she was given an additional opportunity on 21 June after the allegations had been outlined on 20 June. At that time she had had a reasonable opportunity to go over the allegations and consider any response she wished to make. Her response on 21 June was almost identical to that of 20 June.

[98] I do not accept the submission of the applicant’s representative that she was denied procedural fairness because of the speed of the investigation or the failure of the respondent to itemise the allegations in writing prior to meeting with her. The allegations were very serious. The respondent’s duty of care to vulnerable elderly patients was paramount. There was an urgency attached to the respondent’s actions which was justified. Nothing in the process adopted by the respondent rendered the termination procedurally unfair.

Support person

[99] I accept the evidence of Ms Boyd that she advised the applicant to bring a support person with her to the meeting on 20 June 2013 when she spoke to her on 19 June. The applicant claimed that she was not told this until she attended the meeting at 2pm that day but stated that she was unable to bring a support person ‘due to the change in times’ 23. The applicant’s evidence is more consistent with Ms Boyd having told her the previous day to bring a support person. The meeting time was only changed because of the applicant’s failure to attend. There is no evidence that the applicant asked for the meeting to be rearranged to allow a support person to attend. I note that the applicant had a support person with her at the meeting held in March for the purpose of discussing her performance, and would have been aware of her rights in this regard.

Unsatisfactory performance warnings

[100] Not all the concerns about the applicant’s performance had been raised with her prior to the meetings on 20 and 21 June. I am satisfied that the matter of her time keeping had been brought to her attention, as had her failure to follow the directions of her supervisor. Additionally her attitude generally had been raised with her at the March meeting. Concerns about her sleeping during her shifts had not been put to her with any clarity but I accept the evidence of Ms Boyd that a complaint in this regard was about to be brought to the applicant’s attention when that process was overtaken by the more serious allegations.

Size of the employer’s enterprise

[101] The respondent is a relatively large employer. There is no suggestion that its size impacted in a deleterious way on the procedures adopted in effecting the dismissal.

Absence of dedicated human resource management specialist or expertise

[102] Similarly there was no claim put for the respondent that a lack of dedicated human resources specialists had affected the respondent’s ability to properly deal with the matter of the applicant’s dismissal. I note that Ms Anand was intimately involved with the process and is a senior human resources employee of the respondent.

Other matters

[103] I have had particular regard to nature of the undertaking conducted by the respondent in determining this matter. I do not however believe that any preoccupation with its duty of care to the elderly and vulnerable residents for which it is responsible in any way detracted from the fairness of the procedures adopted in dealing with the allegations against the applicant.

[104] I am more than satisfied that the applicant did engage in the conduct alleged against her and in doing so destroyed trust and confidence necessary to enable the respondent to continue to employ her in a position where she was required to care for very vulnerable people with little supervision.

Conclusion

[105] In all the circumstances of this matter, I do not consider the termination of the applicant’s employment to have been harsh, unjust or unreasonable.

[106] As the dismissal was not unfair, the application is dismissed. An order [PR546140] to that effect is published separately.

Appearances:

Mr T. Cullen, Australian Nursing and Midwifery Federation, for the Applicant.

Mr D. Robens with Ms S. Levy, for the Respondent.

Hearing details:

2013.

Canberra:

November 11.

 1   Exhibit I1.

 2   Transcript PN119.

 3   Transcript PN121.

 4   Transcript PN122.

 5   Transcript PN177.

 6   Transcript PN203.

 7   Transcript PN240.

 8   Transcript PN297.

 9   Transcript PN299.

 10   Transcript PN337-PN338.

 11   Transcript PN339.

 12   Exhibit I2.

 13   Transcript PN404.

 14   Exhibit G1.

 15   Exhibit G1, Attachment D.

 16   Exhibit G2.

 17   Exhibit G3.

 18   Exhibit G4.

 19   Exhibit G5.

 20   Exhibit G5 at Paragraph 17.

 21   Exhibit G6.

 22   Transcript PN524.

 23   Exhibit I1 at Paragraph 9.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR546139 >