Maria Rocca v Independent Practitioners Network Pty Ltd (IPN)

[2014] FWC 9423

[2014] FWC 9423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Rocca
v
Independent Practitioners Network Pty Ltd (IPN)
(U2014/9252)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 23 DECEMBER 2014

Application for relief from unfair dismissal - valid reason - application dismissed.

[1] On 15 September 2014 Mrs Rocca lodged an application pursuant to s.394 of the Fair Work Act 2014 (the FW Act) through which she sought relief relative to the termination of her employment with Independent Practitioners Network Pty Ltd (IPN). Mrs Rocca's application was lodged outside of the time limit specified in s.394. On 21 November 2014 I extended the time for lodgement of the application. 1 This decision deals with the merits of Mrs Rocca's application.

[2] The application was the subject of a determinative conference on 19 December 2014. Mrs Rocca represented herself and IPN was represented by its Practice Manager, Ms Earle.

[3] Mrs Rocca was employed by IPN as a casual medical Receptionist on 1 May 2013. There is no dispute that she worked on a regular casual basis up to the termination of her employment. Further, there is no dispute that, apart from the extension of time issue, none of the initial matters specified in s.396 of the FW Act are relevant.

[4] Mrs Rocca's submission is that there was no valid reason for the termination of her employment and that this termination occurred in a procedurally unfair manner.

[5] The IPN position is that Mrs Rocca's conduct, and particularly her conduct during a disciplinary meeting on 22 August 2014, represented serious misconduct, and that the termination of her employment was procedurally fair.

[6] I note that, while both parties provided written material in support of their respective positions, this material did not permit definitive conclusions. I have relied heavily on the evidence given by Mrs Rocca and by Ms Earle. I also note that a video depicting Mrs Rocca's dealings with a patient is significant in this matter. I have reviewed all of the material provided to me in the context of the evidence given by the witnesses.

[7] Mrs Rocca gave evidence about her understanding and recollection of the events that led to the termination of her employment. Mrs Rocca’s evidence was that she did not complete online customer service training after commencing as an employee as she was rostered to work. She challenged the complaints made about her by patients and the date and conclusions that could be drawn from the film of the dealings with a patient. Mrs Rocca asserted that in the course of the meeting on 22 August 2014, when her employment was terminated, she was told by Ms Earle that an employment termination decision had been made by “head office” and this would not be reversed. I found Mrs Rocca to be an evasive witness lacking in credibility.

[8] Ms Earle's evidence was that Mrs Rocca had completed on line interactive training modules relative to her behaviour at work and the maintenance of patient records. Ms Earle's evidence was that Mrs Rocca was formally warned about her late attendance for work on 29 April 2014. Ms Earle advised that complaints from patients about Mrs Rocca's approach to them were received on 5 August 2014 2 and 17 August 20143 and that other similar complaints of this nature were made. These went to her access to patient records and concerns that closed circuit television film (CCTV) showed her making a rude gesture toward one of the patients who had formally complained about her. Ms Earle obtained a copy of that CCTV film and discussed these patient complaints with her manager, Ms Mirinis. As a consequence Ms Earle met with Mrs Rocca on 22 August 2014 to discuss these concerns. Her evidence was that she had no intention or instruction to dismiss Mrs Rocca at this meeting. At the meeting Mrs Rocca admitted to some of this behaviour and showed no remorse while referring to the patients in derogatory terms. Ms Earle advised that Mrs Rocca was advised of this meeting two days earlier. She was advised that she could have a support person present and the meeting gave her the opportunity to respond to these concerns. Ms Earle's evidence was that Mrs Rocca's employment was terminated because of her unacceptable behaviour and that she was advised of this at the meeting.

[9] Ms Mirinis is the IPN State Manager. Her evidence was that in the week prior to the meeting of 22 August 2014 she had various discussions with Ms Earle relative to Mrs Rocca and that planned meeting. She advised that there was no instruction to dismiss Mrs Rocca at that meeting.

Findings

[10] Section 387 sets out the factors to which I must have regard in reaching a conclusion about whether the termination of Mrs Rocca’s employment was harsh, unjust or unreasonable. Before considering these issues I have made a number of findings based on the material before me.

[11] Whilst it may well have been the case that Mrs Rocca did not finally complete some of the online training modules, I am satisfied that she understood the IPN expectations of her as a receptionist. Mrs Rocca’s evidence confirms this.

[12] I have concluded that Mrs Rocca had been trained in relation to, and was aware of the IPN requirements with respect to dealings with patients and patient record confidentiality. In this respect I have accepted the evidence of Ms Earle.

[13] My conclusions in this matter require clear decisions to be made about whether Mrs Rocca’s evidence is to be preferred over that of Ms Earle. I have preferred Ms Earle’s evidence. I have concluded that IPN had significant concerns over Mrs Rocca’s dealings with the two patients who had complained but that it did not intend to terminate her employment at that meeting. IPN also complained that Mrs Rocca had altered a patient record. I have concluded that IPN was legitimately concerned over the two customer complaints. In terms of the CCTV film I have concluded that this film shows Mrs Rocca raising her index finger in a rude motion toward a departing customer. I do not accept Mrs Rocca’s evidence that she was beckoning that customer back toward the reception desk.

[14] While Mrs Rocca was formally warned about her attendance on 29 April 2014 I do not consider that warning was relevant to the termination of employment decision.

[15] I have accepted the evidence of Ms Earle to the effect that Mrs Rocca was given the opportunity to have someone present with her at the meeting on 22 August 2014.

[16] I prefer Ms Earle’s version of the events of the meeting of 22 August 2014. In this regard I am not satisfied that Ms Earle convened that meeting with the express intention of dismissing Mrs Rocca. That would be inconsistent with both the evidence of Ms Earle and that of Ms Mirinis. It would also be inconsistent with the IPN approach toward the meeting in terms of who was in attendance.

[17] I am satisfied that Mrs Rocca’s behaviour at that meeting involved denying that she behaved inappropriately toward customers, being abusive about those customers and clearly indicating to Ms Earle that she did not see any need to alter her inappropriate behaviour.

[18] I have also preferred the evidence of Ms Earle to that of Mrs Rocca in that I have concluded that in the course of this meeting, Mrs Rocca used inappropriate language and referred to one or more patients in terms which included “stupid cow” and “stupid dog” which I regard as derogatory terms and as fundamentally inconsistent with reasonable expectations of Mrs Rocca as a receptionist and indicative of likely ongoing inappropriate behaviour.

[19] I am not satisfied that the evidence before me establishes that Mrs Rocca breached the IPN Medical Record Management expectations by altering patient records. Whilst this may have occurred, the evidence simply does not establish this on the balance of probabilities.

[20] Section 387 states:

“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.”

[21] I have considered each of these factors.

Valid Reason

[22] Notwithstanding subsequent legislative changes I have adopted the principles set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd. 4 Mrs Rocca’s behaviour toward certain of the IPN patients, but, even more particularly, her manner and responses at the meeting on 22 August 2014 were inconsistent with the reasonable expectations of IPN. That behaviour constituted misconduct and represented a valid reason for the termination of her employment. That behaviour meant that Ms Earle could have no confidence that Mrs Rocco would behave in an appropriate manner toward patients in the future. While Mrs Rocca was aware of the significance of the Receptionist function and of her responsibilities her behaviour was fundamentally inconsistent with those responsibilities.

Notification of the Reason

[23] Ms Earle’s evidence was that Mrs Rocca was notified of the reason for the termination of her employment at the meeting on 22 August 2014. I have concluded that this advice incorporated reference to the IPN concerns that she had altered medical records but it also included reference to her behaviour and approach to patients in the context of advice that Mrs Rocca had breached the IPN policy requirements. In reaching this conclusion, I am not satisfied that Ms Earle expressly articulated to Mrs Rocca that it was her behaviour at that 22 August 2014 meeting that was the immediate reason for the termination of her employment.

Opportunity to Respond

[24] Mrs Rocca was given an opportunity, at the meeting on 22 August 2014 to respond to the concerns which IPN had about her performance. It was the manner of her response and her behaviour at that meeting that then became an issue of clear concern to IPN. In this regard I have concluded that Mrs Rocca was largely the author of her own demise as an employee in that, had she adopted a different approach at that meeting on 22 August 2014, her employment was unlikely to have been terminated.

Unreasonable refusal to allow a support person

[25] I have accepted the evidence of Ms Earle that, on 20 August 2014, when Mrs Rocca was advised of the 22 August meeting she was advised that she could bring a support person to the meeting.

Warnings related to unsatisfactory performance

[26] Whilst Mrs Rocca received a formal warning in April 2014 I am not satisfied that this was related to the reasons for the termination of her employment. As I have indicated, those reasons had to do with both her behaviour toward patients and the manner of her responses in the meeting on 22 August 2014.

Size of the employer’s enterprise - impact on the procedures followed

[27] IPN is a very substantial employer. Accordingly, I consider that it should have comprehensive procedures relating to disciplinary issues. Had more robust disciplinary procedures been applied in this instance, any element of doubt about the termination of Mrs Rocca’s employment may well have been removed. Nevertheless, this factor does not affect my conclusion that Mrs Rocca’s behaviour at the meeting on 22 August 2014 was the reason for the termination of her employment.

Size of the employer’s enterprise - access to human resource management expertise

[28] Again, IPN is a substantial employer. Whilst no reference has been made in this matter to human resource management expertise, I have taken it that, had IPN elected to access that expertise it had the resources to be able to do so.

Other matters considered relevant

[29] I do not consider any other matters to be relevant to Mrs Rocca’s circumstances.

Conclusion

Having considered all of the circumstances of the termination of Mrs Rocca’s employment I have concluded that it was neither harsh, unjust or unreasonable. That dismissal occurred because of Mrs Rocca’s behaviour and her responses during the disciplinary process and hence was something that she brought on herself. Her application must be dismissed for the reasons I have detailed. An Order (PR559549) giving effect to this decision will be issued.

Appearances:

M Rocca on her own behalf.

J Earle on behalf of the respondent.

Hearing (Determinative Conference) details:

2014.

Adelaide:

December 19.

 1   [2014] FWC 7150

 2   Copy attached to Employer’s Response

 3   Copy attached to Employer’s Response

 4 (1995) 62 IR 371 at 373

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<Price code C, PR559548>