Maria Aguilar v Southern Cross Care (WA) Inc

[2012] FWA 3398

[2012] FWA 3398

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Aguilar
v
Southern Cross Care (WA) Inc
(U2011/9577)

COMMISSIONER WILLIAMS PERTH, 27 APRIL 2012

Termination of employment.

[1] This matter involves an application made by Ms Maria Aguilar (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Southern Cross Care (WA) Inc (the Respondent).

[2] The application was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not resolved and was referred to myself for determination.

[3] The Respondent owns and operates a number of residential care, independent living and community care facilities and services throughout Western Australia.

[4] The Applicant was employed as a Carer working at the Respondent’s Frank Prendergast House facility. This facility provides high, low and secure dementia care facilities and accommodates 73 residents. The Applicant was first employed in around 2001.

[5] During June of 2011 the Respondent carried out investigations into two complaints made by other staff about the Applicant. The substance of those complaints were that the Applicant had spat at a resident of the facility and slapped the resident on the hand and on another occasion had covered the eyes of a resident with her hand and told her to be quiet. Significantly that resident is a tetraplegic who uses tongue clicking and eye blinks to communicate.

[6] Following these investigations and an interview with the Applicant and her support person, the Applicant was summarily dismissed on 24 June 2011.

Background

[7] The sequence of events leading up to the dismissal were that on 17 June 2011 the Respondent verbally advised the Applicant that a complaint had been made that on 15 June 2011 she had spat at and slapped a resident.

[8] The Respondent told the Applicant that she was suspended from her duties and was required to attend a meeting on 20 June 2011 regarding these allegations.

[9] Following intervention by the Applicant’s union, United Voice, the Respondent provided the Applicant with a written version of this allegation and deferred the meeting to 22 June 2011.

[10] On 21 June 2011, before that planned meeting occurred, the Respondent advised the Applicant’s union representative of a second complaint that had been made about the Applicant.

[11] The second complaint involved allegations that the Applicant had covered the eyes of a resident with her hand to stop the resident, who cannot speak and uses eye blinks to communicate, from communicating.

[12] The Respondent requested that the second allegation also be responded to at the meeting the following day on 22 June 2011

[13] The Applicant attended the meeting on 22 June 2011 with her support person from United Voice. The Respondent was represented at that meeting by Ms Jessica Renner, the Respondent’s Human Resources Consultant, and Ms Lorraine Wallis, the Manager for the Frank Prendergast House facility.

[14] At this meeting the Applicant provided a written response to the first allegation and having read this the Respondent’s representatives asked a number of questions which were answered by the Applicant.

[15] At this meeting the Respondent advised the Applicant that the second allegation was alleged to have occurred on 17 May 2011. After a short break the Applicant responded verbally to the second allegation and there were further question asked and answers given about this. The Applicant provided a formal written response by email later that day to that second allegation.

[16] Next a meeting was held on 24 June 2011 where the Applicant, with a United Voice support person, was advised verbally and in writing that the Respondent had concluded from its investigations that she had committed serious misconduct and so would be summarily dismissed.

[17] The first matter to be determined by the Tribunal in this case is whether or not the Applicant did commit the serious misconduct of which she was accused. As will be seen below there is a difference in evidence between the Applicant and other witnesses regarding the critical events.

The Applicant’s submissions

[18] For the Applicant it is submitted that the Applicant was not guilty of the allegations of serious misconduct. Consequently there was no valid reason for the dismissal.

[19] It is submitted that the evidentiary onus rests on the Respondent to prove that the serious misconduct relied upon in fact occurred.

[20] The Applicant submits that the dismissal was also harsh because the Respondent failed to take into account any mitigating circumstances associated with the alleged misconduct and did not consider the Applicant’s service record as a long term loyal employee with a previously unblemished record.

[21] The Applicant also submits that the dismissal was unreasonable because the Respondent failed to afford the Applicant procedural fairness by not carrying out a reasonable investigation. What the Applicant says was an inadequate investigation of the facts lead to an unfair and careless finding that the Applicant had abused elderly residents and so lead to an unreasonable decision to dismiss the Applicant.

[22] It is argued that the Respondent was wrong to rely on the answers to questions that were put to an elderly resident who is unable to talk and so must have been asked closed questions regarding these very serious allegations.

[23] The Respondent’s investigation and dismissal process did not provide the Applicant with a reasonable opportunity and sufficient time to answer all of the allegations given it took place over only six working days.

[24] With respect to remedy it is submitted on behalf the Applicant that she has secured a new full-time position as of 1 July 2011 and so it is submitted that an order for compensation under section 392 would now be appropriate. The Tribunal should have regard to the remuneration lost for the period 24 June 2011 to 1 July 2011 plus her unpaid long service leave entitlements and unpaid pay in lieu of notice entitlements that would otherwise have been paid had the dismissal not been for serious misconduct.

The Respondent’s submissions

[25] The Applicant was a long-term employee and during her period was provided with a number of training opportunities regarding elder abuse, dementia, challenging resident behaviour, manual handling, dysphasia and other matters.

[26] The Applicant had the experience and knowledge to follow the Respondent’s care plans for each resident and is well versed in how to correctly care for and approach both of the residents whom were subject to her misconduct.

[27] Further the Applicant failed to recognise the risk that her actions posed for the residents involved, her fellow staff members and herself.

[28] By the Applicant offering to apologise to one resident she demonstrated a lack of understanding of the seriousness of her actions to the point where the Respondent has lost the ability to trust her and her decisions with regard to resident care for the future.

[29] The investigations into the complaints made and the Applicant’s alleged misconduct involved information coming from different employees and one of the residents directly affected.

[30] Because of the type of behaviour that the Respondent concluded the Applicant had displayed towards these two residents the Respondent was obliged to report her actions as abuse under the aged care legislation.

[31] The Applicant was in a position of trust providing care to residents who could not care for themselves.

[32] Because of the seriousness of the two incidents which the Respondent concluded did occur it was decided that the Applicant demonstrated neglect and abuse of residents and this warranted her dismissal for serious misconduct.

[33] The Applicant was provided with procedural fairness during the investigation of these allegations.

The evidence

[34] The Applicant gave evidence on her own behalf and evidence was also given by Ms Holden who had at times been working with the Applicant and by Mr Coggin from United Voice who acted as the Applicant’s representative and support person during the lead up to her dismissal.

[35] For the Respondent evidence was given by Ms Tabakanaca who worked with the Applicant, Ms Simmons who also worked with the Applicant, Ms Renner the Respondent’s Human Resource Consultant and Ms Wallis the Respondent’s Manager at the Frank Prendergast House facility.

[36] The critical evidence that warrants careful consideration is that regarding the alleged incidents that were the subject of two complaints made against the Applicant.

Spitting at and slapping a resident on the hand?

[37] The evidence of Ms Tabakanaca was that she was working with the Applicant on 15 June 2011. At approximately 3:30pm they were assisting a resident, Mrs B. Whilst Mrs B was standing facing the Applicant Mrs B spat at the Applicant’s face. Ms Tabakanaca’s evidence was that the Applicant then spat at Mrs B’s face in retaliation and slapped Mrs B on the hand. The Applicant had then said to Mrs B words to the effect of “we have to do like-for-like”. Ms Tabakanaca’s evidence was that the Applicant spoke in an angry tone to Mrs B.

[38] Ms Tabakanaca says that Mrs B is very aggressive and is prone to spitting at carers and pulling their hair.

[39] Some time after these events she reported what had occurred to the Respondent’s staff.

[40] Ms Tabakanaca says that two weeks prior to this incident the Applicant and her had a minor disagreement when Ms Tabakanaca asked the Applicant to assist her. Ms Tabakanaca says it is the only disagreement she had ever had with the Applicant and did not think it was an issue.

[41] Ms Tabakanaca also said she has witnessed the Applicant be very rude to Ms E. This occurred on the first shift she ever worked with the Applicant. Ms Tabakanaca says the Applicant purposely took her time to respond to Ms E and told her to wait in a stern voice when Ms E tried to get the Applicant’s attention and the Applicant then spoke negatively towards Ms E.

[42] Ms Tabakanaca was cross-examined on these events and was unshaken in her evidence.

[43] The Applicant’s evidence regarding this confirmed that she was working with Ms Tabakanaca on 15 June 2011 and assisting Mrs B to use the toilet. Mrs B is a 90 year old lady with dementia and deafness which can make taking care of her very difficult. Whilst assisting Mrs B she became irritated and the Applicant says Mrs B turned around and breathed heavily on the Applicant’s face.

[44] The Applicant says she gently blew back in Mrs B’s face and told her “don’t do that”.

[45] The Applicant denies ever spitting at or slapping Mrs B.

[46] The Applicant agrees that the care plan for Mrs B says that the carers should wear goggles when Mrs B is aggressive but at the time of this interaction she was not initially aggressive.

[47] The care plan tendered as part of the witness statement of Ms Renner says that Mrs B can be physically aggressive and may spit at staff. The plan also includes a handwritten note to the effect that safety goggles are available to protect the eyes of staff.

[48] Considering the evidence of both Ms Tabakanaca and the Applicant there is some commonality here in that the Applicant acknowledges there was an incident between her and Mrs B on 15 June 2011 and that Ms Tabakanaca was present at the time. The conflict in their evidence is as to what actually happened.

[49] The Applicant’s representatives submitted Ms Tabakanaca’s complaint was fabricated because of an earlier disagreement she had had with the Applicant. This argument was not persuasive in my view and Ms Tabakanaca vigorously resisted such suggestions when cross-examined on this point.

[50] Reviewing the Applicant’s evidence I note that the Applicant denies that Mrs B’s spat at her but rather says that Mrs B only breathed heavily on the Applicant’s face. If that was all that Mrs B did it is hard to understand why then the Applicant responded at all, even if her reaction was limited to only blowing softly on Mrs B’s face.

[51] On balance having observed the witnesses I prefer the evidence of Ms Tabakanaca. My finding is that it is more likely than not that Mrs B did spit at the Applicant and in response the Applicant did spit back at Mrs B’s face and then smacked Mrs B on the hand.

[52] Separately I also accept the evidence of Ms Tabakanaca that that whilst caring for Ms E the Applicant purposely took her time and told her to wait in a stern voice and spoke negatively towards her.

[53] Given these findings it is plain that the Applicant was not truthful in responding to be Respondent’s enquiries over this incident.

Covering a resident’s eyes?

[54] The evidence of Ms Simmons was that on 17 May 2011 she was partnered on shift with the Applicant and they were assisting a resident, Ms E.

[55] Ms E is a tetraplegic who uses her tongue to click and her eyes to blink so as to communicate with and make requests of staff.

[56] Ms Simmons’ evidence was that when Ms E started clicking the Applicant put her hand up to Ms E’s face approximately 5cm away which blocked Ms E’s vision.

[57] At the same time the Applicant said to Ms E “That’s enough”.

[58] Ms Simmons’ evidence was that she thought this was unusual, but that the Applicant smiled at her and she thought at the time it was just a bit of fun.

[59] Ms E then looked at Ms Simmons when she did not receive any further attention from the Applicant and Ms Simmons said that she knew then that Ms E must have wanted something else so she told Ms E she would be back to check on her in a few minutes and did so.

[60] Ms Simmons’ evidence was that she had seen the Applicant do this on two separate occasions.

[61] Her evidence was that she had not reported this at the time. However when subsequently approached by Ms Wallis and asked if she had seen anything unusual when she was working with the Applicant she explained what the Applicant did.

[62] Her evidence was that at the time this occurred she was being taught by the Applicant and didn’t think she had the right to say anything about what had occurred.

[63] Ms Wallis gave evidence that following the first complaint that was received she decided to do a random check with her employees. She asked Ms Simmons if she had witnessed any behaviour towards residents that she may have had concerns about. Ms Simmons then reported to her the incident explained above.

[64] Ms Wallis’s evidence was subsequently she met with Ms E and asked her whether any staff treated her inappropriately to which she blinked “yes”.

[65] Ms Wallis asked her who does this and Ms E spelt out, using an alphabet board, the Applicant’s name.

[66] Ms E then spelt out that “She puts her hands over my eyes to stop me from asking for help. She says No, Stop, to me a lot”.

[67] Ms E spelt out to Ms Wallis that this distressed her.

[68] Ms Wallis gave evidence that she typed up notes of this interaction with Ms E. She later explained this conversation (and gave a copy of these notes) to Ms E’s brother when he visited. Ms E’s brother then confirmed with Ms E that she had a conversation as above with Ms Wallis and he signed a record of that conversation on behalf of Ms E.

[69] This “witness statement” of Ms E was provided by Ms Wallis as part of her evidence.

[70] Paraphrased the statement signed by Ms E’s brother says that Ms E has been a resident for over four years and is unable to walk. Ms E uses a pointing stick and letters of the alphabet on a piece of card to communicate. However when she lies down she cannot use this tool and instead has developed non-verbal communication skills such as blinking her eyes and clicking her mouth to express her wishes and preferences.

[71] Ms E reported to Ms Wallis that the Applicant often puts her hands over her eyes to stop her from asking for help when she lies down on her bed.

[72] Ms E also reported that the Applicant speaks to her in a loud tone of voice saying “NO, NO, Stop” when Ms E is trying to ask her for help by clicking.

[73] Ms E says that this is a very distressing to her and she would like it to stop.

[74] Turning then to the Applicant’s evidence with respect to these allegations. The Applicant’s evidence is that she understood the allegations were in relation to the resident Ms E who cannot talk and for whom blinking her eyes is her way of communicating.

[75] The Applicant says she has a good relationship with Ms E and understands her needs and requests. The Applicant’s evidence was this resident can be difficult at times but at no time did she cover her eyes to stop communication or refuse to assist her.

[76] The Applicant’s evidence was however that as she was about to leave Ms E’s room on one occasion she did wave her hand perhaps 20cm above this residents eyes. The Applicant also admits that she did say to Ms E, having taken care of all her needs, “That’s enough. We’ve done everything” but only after she had asked this resident if everything was all right.

[77] The Applicant’s evidence was that Ms E will look for attention and will do anything to make sure that the carers stay in her room most of the time to meet her personal emotional needs.

[78] The Applicant’s evidence was that she was surprised that Ms E complained and that she was distressed.

[79] Considering all of this evidence there is some commonality in the evidence of the Applicant, Ms Simmons and the indirect evidence of Ms E, that the Applicant had moved her hand near Ms E’s eyes and made some statement to the effect that “that’s enough”. There are however obviously some important differences.

[80] Having considered the witnesses evidence I prefer the evidence of Ms Simmons and I accept that her version of events has been confirmed by the statement of Ms E and the answers Ms E gave to the questions asked of her by Ms Wallis. There is no reason to conclude that both Ms E and Ms Simmons have fabricated the same version of events. It was apparent from the Applicant’s evidence that she sought to portray her actions as innocent when they were not.

[81] I find that in May or June of 2011 whilst caring for Ms E the Applicant responded to Ms E’s tongue clicking by placing her hand approximately 5cm away from Ms E’s face blocking her vision and at the same time said words to the effect of “that’s enough”. I find that the Applicant’s actions were deliberate and the Applicant intended to stop Ms E clicking and blinking which are her methods of communication.

[82] In addition I find that the Applicant was not truthful in her responses to Ms Renner and Ms Wallis during her interviews with them and falsely sought to portray her actions as innocent and appropriate when this was not the case.

Consideration

[83] Considering the interaction between the Applicant and Ms E I have found that on two separate occasions as reported by Ms Simmons and on one other occasion as reported by Ms Tabakanaca the Applicant by her actions deliberately sought to either stop Ms E communicating, or ignored her and spoke rudely to her.

[84] The Applicant was fully aware that Ms E can hear quite properly and that if she needed to explain anything to Ms E she could simply speak to her. The Applicant was also fully aware that Ms E uses blinking and tongue clicking to communicate. The Applicant’s actions on these two occasions it is apparent were intended to stop Ms E blinking and tongue clicking and so prevent her communicating. As Ms Wallis explained because Ms E is a tetraplegic the Applicant’s actions were analogous to placing a hand over the mouth of a resident who could speak to prevent that resident talking.

[85] The statement of Ms E that she found the Applicant’s actions very distressing and her comment to Ms Wallis that she was concerned that other staff would copy the Applicant’s behaviour highlights the seriousness of the Applicant’s misconduct.

[86] It is significant that this particular misconduct occurred on three separate occasions. The misconduct was not a once off isolated incident.

[87] With respect to spitting at Mrs B and smacking her hand, self-evidently these retaliatory actions were extremely inappropriate and amount to misconduct. Her actions were contrary to the instructions on the care plan and concerning because the plan advised that Mrs B may well spit at them. The Applicant was retaliating to behaviour which she was aware could occur and was something this resident might commonly do.

[88] I accept that the work the Applicant was undertaking is often very difficult. Caring for aggressive, demanding and uncooperative residents can be very challenging for staff however this is exactly what carers are expected to do and is central to their responsibilities. In this case the Applicant was both properly trained and experienced and there is no excuse for her actions.

[89] Matters of a similar nature have been considered by the Tribunal previously. In the case of Christina Dolva v Sylvandale Foundation Limited T/A Sylvandale Foundation [[2011] FWA 8340] (Sylvandale case) Commissioner Deegan was reviewing the dismissal of an employee who had worked for the employer as a disability support worker for approximately 4 years providing care services to clients suffering from varying degrees of physical and intellectual disability many of them were elderly and living at the employer’s facilities.

[90] Commission Deegan found that the applicant had raised her voice when speaking to one client and had told the client that it would not matter if she complained to the managers because they would not believe her. Commissioner Deegan found that these actions alone were a valid reason for the termination of that disability support worker.

[91] In my view each instance of misconduct the Applicant engaged in this matter was far more serious than the actions of the disability support worker in the Sylvandale case. In addition the fact that the evidence discloses the Applicant misconducted herself on four separate occasions when interacting with residents further increases the seriousness of her misconduct.

[92] Commissioneer Deegan in the Sylvandale case made the following observations which are equally relevant to this application:

“[79] While termination of employment might in other situations seem a harsh reaction to a staff member raising their voice unnecessarily to a client, given the nature of the employment and the particular vulnerability of the clients of the Respondent in this matter I take the view that the dismissal was the only avenue available to this employer.

[80] An employee occupying a position such as that occupied by the Applicant must have the total confidence of their employer. An employer cannot take the risk of leaving an employee in charge of vulnerable clients where there is a reasonable concern that the employee may not react appropriately in all situations. An employer providing the services of carers to clients such as those the employer in this case, are so dependent on their carers, a reasonable belief, supported by evidence, that a carer has a short temper, reacts immoderately to minor provocations, or acts in a way that could be construed as an abuse of their position, is a valid reason for the termination of that person’s employment.”

[93] Considering the four proven instances of misconduct identified in the current matter I do accept, as the Respondent submitted, that the Respondent could no longer trust the Applicant to care for the residents of its facility.

Conclusion

[94] In deciding whether or not in this case the Applicant was unfairly dismissed I am obliged to take account of the matters set out in section 387 of the Act.

[95] Given my findings as to the multiple instances of misconduct by the Applicant, each of which involved seriously inappropriate treatment of vulnerable residents within the Applicant’s care, there is no doubt that the Applicant’s actions were a valid reason for her dismissal by the Respondent.

[96] The Applicant was notified of the reasons the Respondent was considering dismissing her for and she was provided with an opportunity to respond to those reasons and did so both in writing and in meetings with the Respondent’s staff.

[97] The Applicant was not refused the opportunity of having a support person present at discussions relating to these matters and about her possible dismissal. The Applicant’s union representative was involved in these discussions with her.

[98] The reasons for the dismissal did not involve unsatisfactory performance that would warrant warnings.

[99] The procedures followed in affecting the dismissal were appropriate for the size of the employer’s enterprise and in my view was not deficient in any material way that has prejudiced the Applicant.

[100] The Respondent did have dedicated Human Resource Management expertise and these persons were involved in the process of investigation, interview and ultimately the decision to dismiss the Applicant.

[101] In deciding whether a dismissal is harsh, unjust or unreasonable the Tribunal is also required to consider other matters that are relevant. In this case the Applicant argues that her length of service and previously unblemished record mean the decision to dismiss was unfair. I do not accept that this is the case. In my view the actions of the Applicant cannot be overlooked because of these other factors.

[102] Finally the Applicant argues that the dismissal was harsh because the conduct did not amount to serious misconduct that warranted summary dismissal as occurred.

[103] Certainly in cases of summary dismissal the question of whether the penalty of dismissal without notice was proportionate to the misconduct is a factor to be considered. 1

[104] Where summary dismissal is seen to be disproportionate to the misconduct, that would support a decision that the dismissal was harsh, despite there being a valid reason for the dismissal. In this case the misconduct was deliberate and occurred on a number of separate occasions. There were no mitigating factors that lessened the seriousness of the Applicant’s actions. In my view the Applicant’s conduct was serious misconduct and dismissal without notice was appropriate.

[105] I am satisfied then that the Respondent’s decision to dismiss the Applicant was not harsh, unjust or unreasonable. The Applicant was not unfairly dismissed, accordingly this application will be dismissed and an order to that effect will now issue.

COMMISSIONER

Appearances:

A. Li of United Voice for the Applicant.

M. Fitzpatrick and M. Posafrom the Respondent.

Hearing details:

2012.
Perth:
January 17.

 1   See Thomas Brian Potter v WorkCover Corporation [PR948009] at paragraph 55.

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