Luke Saddler v Client Care First Pty Ltd
[2022] FWC 3179
•12 DECEMBER 2022
| [2022] FWC 3179 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Saddler
v
Client Care First Pty Ltd
(U2022/8338)
| COMMISSIONER MCKINNON | SYDNEY, 12 DECEMBER 2022 |
Application for an unfair dismissal remedy
Mr Luke Saddler was employed as a casual disability support worker by Client Care First Pty Ltd (Client Care First) from 6 June 2021 until 26 July 2022. On 15 August 2022, Mr Saddler applied in time for an unfair dismissal remedy from the Commission. Client Care First denies that the dismissal was unfair.
I have decided that Mr Saddler’s dismissal was unfair. These are my reasons.
Protection from unfair dismissal
A person is protected from unfair dismissal if, at the time of dismissal, they have completed at least the minimum employment period and they are covered by a modern award, and/or an enterprise agreement applies to them, and/or their annual rate of earnings is less than the high income threshold.[1]
Mr Saddler was employed by Client Care First for more than 12 months. He has completed the minimum employment period as an employee of Client Care First. Mr Saddler was dismissed on 26 July 2022 and the dismissal took effect immediately. At the time of his dismissal, Mr Saddler’s hourly rate of pay was $32.46 and he was covered by the Social, Community, Home Care and Disability Services Industry Award 2010. Mr Saddler was protected from unfair dismissal in relation to his employment with Client Care First.
Under section 385 of the act, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code and/or not a case of genuine redundancy.[2]
There is no dispute that Mr Saddler was dismissed from his employment. At the time of dismissal, Client Care First employed 74 employees. I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code[3], because Client Care First was not a small business employer at the time.[4] Further, the dismissal was not a case of redundancy - genuine or otherwise. Mr Saddler was dismissed for misconduct.
The question is whether the dismissal was harsh, unjust or unreasonable.
The events leading to dismissal
On 22 July 2022, Mr Saddler was rostered for work on a double shift – starting with night shift from 10.00pm to 6.00am with client L[5] and then a second shift with client G on 23 July 2022 from 6.00am to 2.00pm. At 6.10am, no-one had shown up to relieve Mr Saddler from his first shift.
Mr Saddler was concerned that client G would be waiting for him and called the on-call phone. Mr Shane Jackson, a registered nurse and the company’s Human Resources Manager, answered. Mr Saddler asked if he knew who was coming to replace him and Mr Jackson said he would call him back.
A short time later, Mr Jackson called and told Mr Saddler that ‘Jess’, another disability support worker or Ms Meryn Martin (sole Director of Client Care First) would be coming to relieve him. Mr Saddler said “Ok cool”. Jess arrived and after a brief handover, Mr Saddler went to start his second shift with client G.
Both client L and client G are located in the same building. Keys are required to move between floors using an elevator in the building. Mr Saddler called the on‑call phone again, which Mr Jackson had diverted to Ms Martin. When Ms Martin answered the phone, Mr Saddler said “Oh, hi, I need to get down to client G’s floor, could you assist me?”
Ms Martin replied: “No, you are going to client P.” Client P is also located in the same building. Mr Saddler says he then asked: “Why have I been changed?” and that when Ms Martin explained that it was due to client needs, he replied “Oh, OK” or “Oh Geez” and the call ended.
Mr Saddler says a lady by the name of Kath came to assist him with the lift so that he could get to client P’s unit and Mr Saddler started his second shift. At around 7.00am, client P wanted to get out of bed. This was a job requiring two people to lift the client, so Mr Saddler says he called the Nurse Hub phone and Ms Martin answered. According to Mr Saddler, he asked politely if he could get assistance to get client P out of bed and then said “By the way, who changed my shift from client G's to client P’s”? Ms Martin replied “I did – is there a problem?" Mr Saddler replied “Geez, no - I was just asking” or “Oh Geez” and the phone call ended.
Ms Martin has a different account of these conversations. She says that she was attending to a client’s care when Mr Saddler called on the emergency ‘on-call’ phone shortly after 6.00am. The phone rang twice and was answered by another employee, Ms Julie Thompson, who was working with Ms Martin. Mr Saddler asked for Ms Martin and Ms Thompson put the phone on speaker. Mr Saddler asked “why have I been changed” from client G to client P. When Ms Martin explained that it was due to client needs, Mr Saddler asked “Why wasn’t I contacted?”. Ms Martin replied “You were on sleepover shift and I did not want to wake you as you were not on active shift.” Mr Saddler denies this and says he was on active shift (an overnight shift without provision for sleep) as the house had been hit by a storm.
It is what happened next that is the critical factual matter in dispute. According to Ms Martin, Mr Saddler said to her:
“You cunt, you have an answer for everything.”
Ms Martin responded by saying firstly, that his language wasn’t appropriate and would not be tolerated, and secondly, that if it happened again it would result in automatic termination of his employment. Ms Martin says she terminated the call and sent Ms Patricia Reves, another disability support worker, to assist Mr Saddler with client P.
Mr Saddler denies using offensive language toward Ms Martin or being warned about it in the phone call with Ms Martin on 23 July 2022.
Ms Reves, who had not met Mr Saddler before, arrived to assist with client P, shortly after this conversation. Ms Reves says Mr Saddler was rude and abrupt with her in front of the client. When she introduced herself to Mr Saddler, he replied:
“‘I don’t care who you are, just give me a hand to get the transfer done.”
Later in the morning, Mr Saddler rang the Nurse Hub phone for another assist lifting client P. Ms Martin answered again and Mr Saddler said: “Are you any happier now?” According to Mr Saddler, Ms Martin replied: “I can't work around you professionally Luke” and hung up. Ms Martin recalls instead saying: “I can’t assist, I’ll send Trish”. There is no dispute that Ms Reves returned to assist Mr Saddler with client P. Mr Saddler and Ms Martin did not speak again.
In addition to the content of these exchanges, there are competing accounts about the demeanour of Mr Saddler and Ms Martin on 23 July 2022. Mr Saddler says he spoke politely to Ms Martin, who was angry at having to work on a Saturday morning due to other workers not showing for their shifts. Ms Martin denies this. Ms Reves says that Mr Saddler was in a cranky mood. Mr Saddler denies either that he was in a mood, or that he was rude to Ms Reves “100%”.
On 24 July 2022, Mr Jackson (who was not yet aware of the events of the day before) sent Mr Saddler a text message asking him if he was interested in a double shift that day. Mr Saddler replied by asking if he could cancel his 10pm – 6am shift that night, as he was headed to Wagga Wagga with his family.
On 25 July 2022, Mr Jackson spoke with Ms Martin. She told him what Mr Saddler had said to her, including that he had called her a “cunt”. Later that morning, Ms Reves came to see Mr Jackson. She told he and Ms Martin of her first encounter with Mr Saddler. She said Mr Saddler had been rude and belligerent and that she felt upset as it was not “how we treat each other”. Ms Reves was asked to put it in an incident report and did so. The evidence is not clear on who made the request, but nothing turns on it.
Mr Jackson thought about what to do with Mr Saddler. He looked at Client Care First’s Code of Conduct and formed the view that calling your boss a “cunt” was evidence of a broken‑down working relationship. He tried to call Mr Saddler but there was no answer. He waited for a while and then spent the morning of 26 July 2022 drafting a letter of termination. Once the letter was approved by Ms Martin, Mr Jackson emailed it to Mr Saddler. There is no dispute that Mr Saddler received the letter of termination.
Was the dismissal harsh, unjust or unreasonable?
Was there a valid reason for dismissal related to capacity or conduct, and was it notified to Mr Saddler?
I find that Mr Saddler engaged in serious misconduct and gave Client Care First a valid reason for his dismissal when he called Ms Martin a “cunt” over the phone on 23 July 2022. His choice of language was unwarranted, inappropriate, inconsistent with Client Care First’s Code of Conduct, and extremely disrespectful both to Ms Martin and to women generally. To the extent that there is a conflict in the evidence in this regard, I prefer Ms Martin’s account because other than his separate conduct toward Ms Reves (which was not relied upon at the time as a reason for dismissal), there is no other rational explanation for the decision to dismiss Mr Saddler. To the contrary, the evidence suggests that but for his language on 23 July 2022, Mr Saddler would have continued to be offered work by Client Care First.
I also prefer Ms Reve’s evidence about Mr Saddler’s conduct toward her on 23 July 2022 and reject Mr Saddler’s denials in that regard. Ms Reves was a credible witness with no obvious vested interest in the outcome. There is a record of her complaint about how she was treated by Mr Saddler shortly after the incident. Her recollection of events at hearing was detailed and precise. This conduct would not, on its own, be a valid reason for dismissal but it is relevant to the dismissal of Mr Saddler, because it formed part of the consideration about whether to terminate Mr Saddler’s employment.
There is a further matter relied upon by Client Care First in relation to its decision to dismiss. It is said that separate to his telephone conversations with Ms Martin, Mr Saddler disparaged the business and Ms Martin in front of client P and Ms Reves on 23 July 2022. The only evidence of this is the incident report of 26 July 2022, which is expressed in vague terms. I do not find the allegation established.
The letter of termination sent to Mr Saddler advised him that the reason for his dismissal was his misconduct and use of inappropriate language towards senior staff of Client Care First on Saturday, 23 July 2022. While not overly detailed, I consider it more likely than not that Mr Saddler knew by this advice that his use of the word “cunt” toward Ms Martin was what prompted his dismissal. This is despite Mr Saddler later seeking clarification of the reasons for his dismissal. I find that the letter of termination was sufficient notice of the reason for dismissal in the circumstances.
Was there an opportunity to respond to any capacity or conduct related reason?
During the phone call with Ms Martin on 23 July 2022, Ms Martin warned Mr Saddler that his behaviour would not be tolerated and that if he did it again, he would be dismissed. Mr Saddler did not repeat his misconduct. Despite the second chance, however, Mr Saddler was dismissed three days later for the same conduct about which he had been warned on 23 July 2022.
Mr Saddler was not given an opportunity to respond to Client Care First’s concerns about his behaviour except when it occurred on 23 July 2022. I accept that Client Care First tried to make contact with Mr Saddler before terminating his employment, but its total effort in this regard was a single unanswered phone call, in circumstances where they knew that Mr Saddler could sometimes be difficult to contact. The decision to then proceed to dismissal was made with unnecessary haste. I do not accept that this was warranted so as to avoid him having further contact with its clients. The same outcome could have been achieved by a direction not to attend work pending resolution of the disciplinary matter.
Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?
There was no unreasonable refusal to allow Mr Saddler to have a support person assist in discussions about the dismissal. There were no discussions about the dismissal.
Was Mr Saddler warned about relevant unsatisfactory performance?
Mr Saddler’s dismissal was not about unsatisfactory performance. It was about his use of offensive language toward Ms Martin on 23 July 2022.
Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on the procedures followed in effecting the dismissal
Client Care First is not a small business. Given its size, it is surprising that its only Human Resources Manager is working in the role on a ‘dual role’ basis, while also juggling his function as a registered nurse and learning on the job. It is likely that this reflects funding constraints on the business in the context of the industry in which it operates. Mr Jackson no doubt works hard but his specialist expertise in relation to dismissal procedures appears to be limited. In my view, the business has a lack of adequate support in this area and this likely contributed to the peremptory approach to Mr Saddler’s dismissal.
Other relevant matters
Prioritising the needs of vulnerable clients in care will often necessitate changes at short notice. This can place strain on the employment relationship when communication is poor. Better communication about changes to Mr Saddler’s duties on the morning of 23 July 2022 might have avoided the outburst that brought an end to the relationship as well as Mr Saddler’s dismissive treatment of Ms Reves. That said, offensive and aggressive conduct toward women, including in positions of authority, must be called out when it occurs. There was no warrant for Mr Saddler to act as he did toward either Ms Martin or Ms Reves, even if he was frustrated about how things were being done. His denials and complete absence of remorse in this regard are regrettable.
Conclusion on merits
In the circumstances, I find that Mr Saddler’s dismissal was unreasonable. This is because he was dismissed for the same conduct that had been the subject of a warning not to repeat his conduct. Mr Saddler then did not repeat the conduct before he was dismissed. Mr Saddler was denied an opportunity to explain his conduct before the decision to dismiss was put into effect.
It follows that Mr Saddler was unfairly dismissed.
Remedy
I am satisfied that the reinstatement of Mr Saddler would be inappropriate, both because of the nature of Mr Saddler’s conduct toward Ms Martin, his lack of acknowledgment and/or remorse, and because by the time of his dismissal, Mr Saddler had already found another, better paying, job.
As to whether an order for payment of compensation is appropriate, I consider that Mr Saddler would only have remained in employment for a further one week. This is because Mr Saddler denies, has not explained and has never accepted responsibility for his actions on 23 July 2022. It is unlikely that any different outcome to dismissal would have resulted if Mr Saddler had been offered a proper opportunity to respond to the allegations against him before he was dismissed.
In the week after his dismissal, Mr Saddler earned more than he would have earned as an employee of Client Care First. That is, Mr Saddler has wholly mitigated his loss. To illustrate the point, Mr Saddler’s average weekly earnings as a casual employee in the 5 months prior to dismissal were $751.37 gross per week. In the week after he was dismissed, Mr Saddler earned $827.16 gross. Since then, he has continued to work and earn more in his new job than while employed by Client Care First.
For these reasons, I do not consider that an order for payment of compensation is appropriate in all of the circumstances.
The application is determined accordingly.
COMMISSIONER
Appearances:
L Saddler on his own behalf.
D Foye of Foye Legal on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
December 1.
[1] Fair Work Act 2009 (Cth), s.382.
[2] Fair Work Act 2009 (Cth), s.385.
[3] Fair Work Act 2009 (Cth), s.388.
[4] Fair Work Act 2009 (Cth), s.23.
[5] Client names have been substituted with initials to protect their privacy.
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