Kerry Anne Paltridge v Limestone Coast Health Unit Trust T/A Robe Medical Centre
[2016] FWC 6835
•26 SEPTEMBER 2016
| [2016] FWC 6835 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kerry Anne Paltridge
v
Limestone Coast Health Unit Trust T/A Robe Medical Centre
(U2016/6816)
COMMISSIONER PLATT | ADELAIDE, 26 SEPTEMBER 2016 |
Application for relief from unfair dismissal.
Background
[1] Ms Paltridge has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer, the Limestone Coast Health Unit Trust T/A Robe Medical Centre (Robe Medical Centre).
[2] At the time of her dismissal, Ms Paltridge was employed as a receptionist at the Robe Medical Centre.
[3] Both parties were represented by Counsel, with permission having been granted pursuant to s.596(2) of the Act.
[4] On 7 April 2016, an elderly patient, who was previously married to Ms Paltridge’s father, left her handbag in the reception area of the Robe Medical Centre. The handbag entered the custody of Ms Paltridge that day but was not however, returned to the patient until 18 April 2016.
[5] A letter of complaint, written by relatives of the patient, was received by the Robe Medical Centre prompting an investigation.
[6] It was alleged that Ms Paltridge knew who owned the handbag and did nothing to return it. It was also alleged that when the matter was being investigated, Ms Paltridge initially stated that she attempted to call the owner of the handbag to advise her of its whereabouts. Ms Paltridge later denied stating she attempted to contact the patient as she did not know who owned the handbag.
[7] On 22 April 2016, Dr Senior dismissed Ms Paltridge for failing to:
● investigate who owned the handbag;
● take action to return it in a prompt manner; and
● give truthful responses in the investigation, as such that he had lost trust and confidence in her.
[8] It was suggested that Ms Paltridge did not have a good relationship with the patient and her actions in failing to return the handbag were motivated by a desire to cause difficulty to the patient.
[9] Ms Paltridge stated she:
● enjoyed a good relationship with the patient;
● was not aware that it was her handbag;
● felt uncomfortable looking inside the handbag to determine who the owner was; and
● forgot about the handbag for 11 days after it was received.
[10] Ms Paltridge denied lying to Dr Senior or Ms Higgins during the investigation of the matter and suggested that they misheard her responses.
[11] I have found that the Applicant:
● is a person who is protected from unfair dismissal pursuant to s.382 of the Act;
● failed to take reasonable action to return the handbag to its owner;
● provided conflicting accounts concerning her conduct in the matter; and
● acted in a manner which, combined with previous allegations of misconduct against her, led to a loss of trust and confidence in her by Robe Medical Centre.
[12] I have found that the Robe Medical Centre had a valid reason to dismiss Ms Paltridge and that the dismissal was not harsh, unjust or unreasonable. Accordingly the application is dismissed.
[13] My detailed reasons for this decision follow.
Evidence before the Commission
[14] Ms Paltridge provided a witness statement and gave evidence in the hearing.
[15] Robe Medical Centre provided witness statements and led evidence from the following persons:
● Dr David Philip Senior, General Practitioner and part owner of the Limestone Coast Health Unit Trust T/A Robe Medical Centre;
● Ms Lynley Jane Higgins, Practice Manager at the Robe Medical Clinic;
● Ms Dianne Jeanne O’Neil, Registered Nurse at the Robe Medical Clinic; and
● Ms Bettyann Waller, patient of the Robe Medical Centre.
[16] Ms Paltridge had been employed by the Robe Medical Centre for just under 16 years, and at the time of her dismissal was engaged as a part time receptionist working four days per week.
[17] As receptionist, Ms Paltridge was the face of the medical practice. 1 Ms Paltridge’s role included greeting and liaising with patients, taking telephone calls, making appointments, banking, document scanning and reconciliations.2
[18] The clinic had received several complaints about Ms Paltridge’s behaviour and conduct, including complaints made by:
- patients of the clinic;
- a locum doctor working at the clinic; and
- Ambulance SA in relation to her conduct towards their staff.
[19] These complaints had resulted in Ms Paltridge receiving written warnings on 1 July 2014 3 and a “first and final warning” on 9 April 2015.4 The April 2015 warning reinforced the need to behave in a responsible and professional manner and treat others with courtesy and respect.
Receipt of the handbag
[20] On 7 April 2016, a long standing elderly female patient who was previously married to Ms Paltridge’s father attended the medical practice. The patient left her handbag in the waiting area.
[21] Ms Waller, who was also a patient of the medical centre, gave evidence that she attended the medical centre in the afternoon of 7 April 2016, and noticed an unattended handbag in the waiting area. Ms Waller alerted Ms Paltridge to the misplaced handbag. Ms Waller asked Ms Paltridge whether she knew who the handbag belonged to. Ms Waller asserts that Ms Paltridge said “I think I know who that belongs to.” 5
[22] Ms Paltridge’s recollection of this event was vague, remembering only that a female patient gave her the handbag and rejecting any suggestion that she knew who the handbag belonged to. Ms Paltridge denied using the words attributed to her, but contended that she said words to the effect of she would try and get the handbag back to whoever owned it. Ms Paltridge then took possession of the handbag, placing it in a bookshelf at the rear of the reception area. 6 The photos of the reception area tendered indicate that the bookcase was in plain view of persons working in the reception area.7
[23] Ms Paltridge did not examine the contents of the handbag to try and determine who the owner was, as she felt uncomfortable in doing so. 8 Despite this, Ms Paltridge conceded in cross-examination that she should have opened the handbag in the presence of Ms Higgins.9 Ms Paltridge did not ask another staff member to examine the handbag or bring the existence of the handbag to their attention prior to the return of the handbag to the owner. In short, Ms Paltridge took no steps to identify the owner or facilitate the return of the handbag.
[24] Ms Higgins is the Practice Manager and her role includes accounting, IT management, HR management, stock control and occasionally relief reception. 10 Ms Higgins gave evidence that she was not aware of when the handbag was received by the practice. This is consistent with the evidence of Ms Paltridge, who says that Ms Higgins was busy at the time she received the handbag.
[25] The Robe Medical Centre did not have a formal policy for dealing with lost and found goods. In practice, smaller goods were placed in a box under the desk and larger items were placed on the desk or in the bookcase. If the owner could be identified, telephone contact was made. Dr Senior’s unchallenged evidence was that this was a well recognised and frequently-used protocol. 11
[26] Whilst the medical practice did not have any competitors in Robe, Dr Senior was keen to ensure the practice maintained a good reputation with its clientele particularly in light of the increased patient mobility and competing practices located in Millicent and Naracoorte. 12
Relationship between Ms Paltridge and the patient
[27] Evidence regarding Ms Paltridge’s relationship with the owner of the handbag was given by Ms Higgins and Ms O’Neil, who stated that Ms Paltridge showed a high level of animosity towards the patient by:
● making it difficult for her to make appointments at the clinic;
● being abrupt to her when she attended the clinic for appointments;
● calling her offensive names including “black widow;” and
● telling others that the patient tried to murder her ex-husbands.
[28] Ms Paltridge rejected displaying any animosity towards the patient, or calling her a “black widow” but conceded in cross examination that she called her a “praying mantis” 13 behind her back, and referred to her as a “silly old bitch”14 for forgetting her handbag. Ms Paltridge believed that anyone, in the same situation would have made the “silly old bitch” comment.15
[29] Ms Paltridge accepted that in a conversation referring to the handbag she said words to the effect of "the silly old bitch should have come and picked it up if she knew it was here." 16
Return of the handbag
[30] On 11 April 2016, the patient returned to the Robe Medical Centre, and was not advised of the whereabouts of the handbag.
[31] The handbag was returned to the patient on 18 April 2016. At about 4.00 pm that day, Ms Higgins was near the reception desk when the patient challenged Ms Paltridge and said “why didn’t you give me my handbag when I left it there?” 17 Ms Higgins gave evidence that Ms Paltridge replied “oh, I tried to call you last Friday.”18 Ms Paltridge suggested that she said,“If I had known it was your handbag, I would have rung you.”19
[32] This conversation was the subject of rigorous cross-examination. Ms Higgins was resolute in her recollection, stating that she was present and heard Ms Paltridge say to the handbag’s owner that she tried to telephone her on Friday being 15 April 2016. In fact Ms Higgins was disappointed that Ms Paltridge had not attempted to contact the patient earlier, as this was already 8 days after the bag was left at the clinic.
Investigation
[33] The conversation between Ms Paltridge and the patient coupled with Ms Paltridge’s negative attitude toward the patient, prompted Ms Higgins to investigate the matter. On 19 April 2016, Ms Higgins reviewed the practice’s phone records to see whether an outgoing call had been placed to the patient’s telephone number.
[34] If Ms Paltridge’s account of the conversation was correct, then Ms Higgins review of the phone records was a frolic without purpose. I accept Ms Higgins account of the conversation, and that Ms Paltridge represented to the handbag’s owner that she had tried to ring her.
[35] On that day, Ms Higgins also received a number of telephone complaints about the medical practice’s handling of the handbag incident and a written complaint. 20 In the absence of the authors of the verbal and written complaint being called, I have not regarded the information contained in the complaints as evidence of the facts contained therein but accept that a number of complaints had been made and the senior members of the practice became genuinely concerned about its reputation.
[36] At about 10.00 am on 22 April 2016, Ms Higgins discussed the matter with Dr Senior. Ms Higgins advised Dr Senior that Ms Paltridge’s statement that she tried to ring the patient was not supported by the practice telephone records, and that a number of complaints had been received about the practice’s handling of the matter. Dr Senior determined that a meeting with Ms Paltridge be held to discuss the matter. 21
[37] Dr Senior gave evidence that after he first learned about the handbag issue he spoke with Ms Paltridge and said, "Well, what happened and why didn't we get in touch with the patient, if you knew who had owned the handbag?" 22 Ms Paltridge told him that she had telephoned the owner. In the meeting after the investigation, Ms Paltridge contradicted the prior account and said she had not telephoned.23
Termination Meeting
[38] Ms Paltridge was not given any advance warning of the timing or content of the meeting that resulted in her dismissal.
[39] The meeting was convened at the request of Dr Senior in order to clarify the inconsistency between Ms Paltridge’s advice to Dr Senior and Ms Higgins, that she had telephoned the patient regarding the bag, and the absence of phone records to support this assertion.
[40] Ms Paltridge did not seek and was not offered a support person.
[41] It appears that Dr Senior and Ms Higgins were not expecting that the meeting would result in the dismissal of Ms Paltridge, believing that Ms Paltridge would be able to establish that she tried to contact the patient. Having been confronted with the absence of supporting telephone records, Dr Senior asked what telephone number Ms Paltridge used to ring the patient. Ms Paltridge refused to disclose the number, then conceded that she did not in fact call. At that point, Dr Senior determined that he had been lied to and made a decision to dismiss Ms Paltridge.
[42] It appears in making his decision, Dr Senior reflected on the history of complaints made against Ms Paltridge and his previous acceptance of her explanations, but believing that he had been deceived on this occasion, came to the realisation that he could no longer work with her due to his loss of trust and confidence.
[43] I accept that the allegations of the conduct which led to the loss of trust and confidence were put to Ms Paltridge and she was able to respond to them.
[44] Ms Paltridge admitted in cross-examination to telephoning Ms Waller in the lead up to the hearing in an effort to better understand what had transpired. 24 Ms Paltridge was unable to give a convincing explanation as to why she contacted Ms Waller when her evidence was that she did not know who left the handbag with her.
Is the Applicant a person protected from Unfair Dismissal?
[45] Section 382 of the Act details persons who are protected from unfair dismissal.
[46] Ms Paltridge has completed the minimum employment period, was not a casual employee and earned less than the high income threshold at the time of dismissal. I therefore, find that Ms Paltridge is a person protected from unfair dismissal.
Evidentiary findings
[47] Ms Paltridge conceded that she had referred to the patient in her absence as a “praying mantis,” called her “silly old bitch” and gave a curt response in cross-examination when asked about the relationship between her and the elderly patient. 25 This is not indicative of a cordial relationship between Ms Paltridge and the patient.
[48] Ms Paltridge did not appear to have any empathy for the position that an elderly patient with memory problems would find themselves in if they had lost or misplaced their handbag. 26 At best, Ms Paltridge appears to adopt the position that the loss of the handbag was the patient’s problem and it was not her responsibility to remedy the situation, at worst Ms Paltridge has deliberately acted in a manner designed to delay the return of the handbag and has then been dishonest in her account to her employer as to her actions.
[49] Ms Paltridge took no action in respect of the handbag for 11 days contending that she “didn’t give it a thought” 27 or she forgot,28 despite the handbag being plainly in view on every occasion she entered the reception area.
[50] Ms Paltridge also contended that she was unable to open the handbag to view its contents stating “I can't look in people's personal stuff” 29 but did not explain why she could not have presented the handbag to another staff member to review the contents in order to ascertain its owner.30 Ms Paltridge did nothing to advise other staff of the presence of the handbag and could not understand why she should have done so.31 Ms Paltridge appeared to try and shift responsibility to Ms Higgins, who Ms Paltridge accepts was busy with other duties at the time the handbag was presented and did not handle the handbag.
[51] In hindsight, Ms Paltridge accepted that “I could have got someone else to come and do it, and go through it with me, had I remember[ed] to look for the handbag each day, whether it was still there or not.” 32
[52] Ms Paltridge was not a convincing witness. Her answers to questions about the course of conduct she adopted in respect of the handbag and her failure to take appropriate steps to locate its owner, were implausible. 33 I have preferred Ms Waller's account of the conversation that occurred at the time when the handbag was first located, and Ms Higgins and Dr Senior’s account regarding Ms Paltridge’s representations about contacting the patient by telephone.
[53] Dr Senior took a risk averse approach to managing employee performance. Unless complaints were put in writing, he would not act upon them, and when confronted with a conflicting account or explanation by Ms Paltridge he had, until this occasion, always given Ms Paltridge the benefit of the doubt. In Dr Senior’s words “I've always taken the attitude that it is better to try and conserve staff than it is to just fire them and hire someone new.” 34
[54] Dr Senior gave evidence of a separate conversation with Ms Paltridge (prior to the termination meeting) where it was represented to him that she had tried to ring the patient. Whilst this information was not in his statement, I accept that the conversation occurred.
[55] Dr Senior, having been informed by Ms Higgins of the lack of any telephone records confirming the telephone call, required Ms Paltridge to attend a meeting to explain how this could have occurred. Dr Senior’s evidence was that Ms Paltridge, when questioned on how she telephoned the patient initially, refused to answer, and then subsequently advised that she did not ring the patient at all. 35 It was at that point that Dr Senior considered he had been lied to, lost trust and confidence in Ms Paltridge and determined to dismiss her.
Was the dismissal harsh, unjust or unreasonable?
[56] I now consider if the Applicant’s dismissal was harsh, unjust or unreasonable.
[57] Pursuant to s.387 of the Act, 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.”
Valid reason - s.387(a)
[58] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd36which requires the reason for termination to be “sound, defensible or well founded.” 37
[59] The facts in this matter indicate that the conduct of Ms Paltridge towards the patient, together with her lack of candour during the investigation resulted in Dr Senior losing trust and confidence in her.
[60] Ms Paltridge’s work interactions with clients, co-workers and external stakeholders had previously been the subject of adverse comment. Dr Senior had on each prior occasion (despite the depth of evidence) accepted the account and/or mitigating circumstances presented by Ms Paltridge and resolved each matter in her favour.
[61] Dr Senior seems to be a forgiving person and not one to seek out conflict. It appears to me that Ms Paltridge’s conduct in respect of the non-return of the handbag and her inconsistent explanations resulted in Dr Senior concluding that Ms Paltridge had tried to mislead him on this occasion. This led him to question Ms Paltridge’s explanations of her prior conduct and resulted in Dr Senior losing trust and confidence in her.
[62] I accept the position adopted by Dr Senior and find that this was a valid reason to dismiss Ms Paltridge.
Notification of valid reason - s.387(b)
[63] An employee protected from unfair dismissal must be advised of a valid reason for termination prior to the decision being made.38
[64] I find that the conduct that led to the trust and confidence being lost was put to Ms Paltridge in the interview conducted on 22 April 2016.
Opportunity to respond - s.387(c)
[65] An employee protected from unfair dismissal must be given an opportunity to respond to the reasons for termination prior to a decision to terminate is made. 39
[66] The initial portion of the termination meeting was a fact finding exercise, designed to determine whether Ms Paltridge took reasonable steps to find the owner of the handbag. Dr Senior having received the inconsistent responses by Ms Paltridge and forming his view as to the honesty of Ms Paltridge, then transformed the meeting into a disciplinary meeting. I find that the conduct relied upon which formed the basis of the termination of Ms Paltridge was put to her and she had an opportunity to respond and did so.
Any unreasonable refusal by the employer to allow a support person - s.387(d)
[67] An employer must not unreasonably refuse the employee to have a support person present to assist at any discussions relating to the dismissal. 40
[68] Ms Paltridge did not make any request for a support person. 41
Warnings relative to unsatisfactory performance - s.387(e)
[69] Ms Paltridge had been the subject of previous performance discussions. The events that led to those discussions were contested and not resolved by evidence. The previous discussions and explanations by Ms Paltridge in respect of those discussions were relevant in Dr Senior forming a view as to his on-going trust and confidence in Ms Paltridge. Written warnings in respect of performance were issued on 1 July 2014 and 9 April 2015.
Size of the employer’s enterprise s.387(f) and absence of dedicated Human Resources support - s.387(g)
[70] While the employer is not a small business, it does not have access to experienced human resources support. Although the final meeting could have been better structured, I do not believe that this would have altered the final outcome.
Other matters considered relevant - s.387(h)
[71] There were no other relevant matters.
Conclusion
[72] The Explanatory Memorandum to the Fair Work Act 42 explains the approach of the Commission in considering the elements of s.387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[73] In Byrne and Frew v Australian Airlines Pty Ltd,43 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[74] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of the Applicant’s employment was not harsh, unjust or unreasonable and that the application be dismissed.
[75] An Order 44 reflecting this decision will be issued.
COMMISSIONER
Appearances:
S Richter of Counsel with C Ryan of Chris Ryan Lawyers, with permission, on behalf of the Applicant.
M Demostheneous of Counsel with J Norcock of Westley Digiorgio Norcock, with permission, on behalf of the Respondent.
Hearing details:
2016
Mount Gambier
August 10.
1 Transcript PN370 and PN781.
2 Transcript PN37.
3 Exhibit L10 warning letter dated 7 July 2014.
4 Exhibit L6 - warning letter dated 9 April 2015.
5 Transcript PN1134.
6 Transcript PN88.
7 Exhibit P3 – photograph of reception area.
8 Transcript PN177.
9 Transcript PN251.
10 Transcript PN649.
11 Transcript PN457.
12 Transcript PN361.
13 Transcript PN226.
14 Transcript PN230.
15 Transcript PN230.
16 Transcript PN230.
17 Exhibit L5 – statement of Lynley Jane Higgins at [11].
18 Transcript PN1146.
19 Transcript PN92.
20 Exhibit L6 – letter of complaint dated 19 April 2016.
21 Transcript PN684.
22 Transcript PN374.
23 Transcript PN374.
24 Transcript PN239-245.
25 Transcript PN162.
26 Transcript PN166-171.
27 Transcript PN200.
28 Transcript PN178, PN256 and PN331.
29 Transcript PN215.
30 Transcript PN177.
31 Transcript PN182.
32 Transcript PN216.
33 Transcript PN183-PN190.
34 Transcript PN372.
35 Transcript PN566-568.
36 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
37 Ibid at [373].
38 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
39 RMIT v Asher (2010) 194 IR 1 [26]-[30]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
40 Section 387(d) of Fair Work Act 2009 (Cth).
41 Transcript PN203.
42 Explanatory Memorandum to the Fair Work Bill 2008.
43 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.
44 PR585698.
Printed by authority of the Commonwealth Government Printer
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