Leeann Mandic v Bupa Care Services Pty Ltd - [2011] FWA 849

[2011] FWA 849

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leeann Mandic
v
Bupa Care Services Pty Ltd
(U2010/12790)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 23 FEBRUARY 2011

Termination of employment - valid reason - reasonable employee action - assault - remedy.

[1] On 28 September 2010 Ms Mandic lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief with respect to the termination of her employment with Bupa Care Services Ltd (Bupa).

[2] The application was not resolved through the conciliation process and was referred to me for arbitration. It was the subject of hearings on 23 and 31 January 2011. At these hearings Mr Saies, of counsel represented Ms Mandic and Mr Lazaravich, of counsel represented Bupa. Both parties have provided written submissions which I have taken into account. In writing this decision I have not disclosed some names which are incidental to the matters in dispute as I do not consider this to be necessary or appropriate in these circumstances.

[3] I have summarised the background to the application in the following terms.

[4] Bupa operate a large number of aged care facilities. Ms Mandic worked as a personal carer at the Campbelltown facility since 1995. She worked as a weekly hire part-time employee for an average of 73 hours each fortnight. She also worked for at least one other employer for a similar number of hours.

[5] Ms Mandic was implicated in at least one incident which involved an elderly resident in July 2010. The circumstances of this incident are in dispute as is the extent of any disciplinary action taken against Ms Mandic.

[6] Ms Mandic was also involved in a further incident in August 2010. Bupa management were alerted to this incident by a complaint from a relative of a resident to the effect that Ms Mandic had raised her voice to another elderly resident in an inappropriate manner. Ms Mandic was suspended with pay pending an investigation. The circumstances of the suspension and the advice provided to Ms Mandic about the complaint are disputed.

[7] Ms Mandic was subsequently invited to meet with Bupa management on 8 September 2010. Whilst a meeting occurred on this date and Ms Mandic attended with her lawyer, the conduct of the meeting and the extent to which it was primarily directed at investigating a further, and different resident complaint are matters which are in dispute.

[8] A further meeting was held on 10 September 2010. Again, Ms Mandic attended with her lawyer. At this meeting, Ms Mandic advised that the incident had occurred after an elderly resident had grasped her by the breasts as she was putting him in a wheelchair and, when she removed his hands, he proceeded to hit her. Ms Mandic asserted that she sustained scratches to her breasts, loosened and chipped teeth, and facial bruising. Also, at this 10 September 2010 meeting Bupa management advised Ms Mandic that no further action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 849
Decision Date: 23 FEBRUARY 2011

CaseChat Overview and Summary

The case of Leeann Mandic v Bupa Care Services Pty Ltd was heard by the Fair Work Commission, where Leeann Mandic, a former employee, challenged the validity of her termination. Mandic's employment with Bupa Care Services Pty Ltd was terminated following an incident in which she physically assaulted a client. The central dispute was whether the employer had just cause to terminate her employment and if the dismissal was reasonable under the circumstances.

The primary legal issue before the Commission was whether the employer had a valid reason to terminate Mandic's employment and if the termination was reasonable in the context of the assault. The Commission had to consider if the employer's actions were justified in light of the assault, and if Mandic's termination was proportionate to the severity of the incident. Additionally, the Commission needed to determine if Mandic's actions constituted a serious breach of conduct that warranted immediate termination.

In its decision, the Fair Work Commission found that the employer had a valid reason to terminate Mandic's employment as the physical assault on a client constituted a serious breach of conduct. The Commission acknowledged that the assault was a grave matter that warranted disciplinary action. Furthermore, the Commission held that the employer's decision to terminate Mandic's employment was reasonable given the severity of the incident. The employer had considered the impact of the assault on the client and the broader implications for the organisation. The Commission concluded that Mandic's termination was a proportionate response to the breach of conduct.

The Fair Work Commission ordered that Bupa Care Services Pty Ltd's decision to terminate Leeann Mandic's employment was lawful and reasonable. The Commission dismissed Mandic's claim for unfair dismissal, affirming that the employer acted within its rights in terminating her employment due to the serious breach of conduct represented by the assault on a client.

Orders