Mariam Dafallah v Aged Care Services Australia Group Pty Ltd
[2010] FWA 971
•10 FEBRUARY 2010
[2010] FWA 971 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Aged Care Services Australia Group Pty Ltd
(U2009/11870)
COMMISSIONER ROE | MELBOURNE, 10 FEBRUARY 2010 |
Termination of employment - misconduct
[1] The matter arises from an application filed on 8 September 2009 under s 394 of the Fair Work Act 2009 (the Act) by Ms Mariam Dafallah (the applicant) for relief in respect to the termination of her employment from the Rosanna Views Aged Care Facility operated by Aged Care Services Australia Group Pty Ltd (the respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration.
[3] Directions were issued by Fair Work Australia and the matter was heard on 3 and 4 February 2010.
[4] At the hearing Mr Martin Willoughby-Thomas of counsel appeared on behalf of the applicant and Mr Michael Rahilly of counsel appeared on behalf of the respondent together with Ms A. De Bruijne.
[5] For the applicant evidence was given by:
- The applicant Ms Mariam Dafallah
- Ms Heather Pagels a division one nurse who was employed by the respondent until 2007
- Ms Robyn Pang a division one nurse who was employed by the respondent until September 2007
- Mr Martin Willoughby-Thomas who had been present at a disciplinary meeting with the respondent and the applicant.
[6] For the respondent evidence was given by the Facilities Manager Mr Wayne Bailey.
[7] The majority of the evidence was given by affidavit and each witness was available for cross examination.
[8] During the proceedings the parties agreed and I am satisfied that:
- The respondent is not a small business
- There is no issue of redundancy
- The applicant had been employed at the facility since 1996 and as a permanent employee since 2000.
- There had been a transmission of business in 2007 and there is no argument about continuity of employment or service following that transmission.
- The applicant and the respondent are bound by the provisions of the Aged Care Services Australia Group Pty Ltd (Central Park and Others) ANF and HSU Collective Agreement 2006-2008.
- Clause 38 of the relevant Collective Agreement provides a disciplinary procedure which is relevant in this matter and reads as follows:
“38 Disciplinary Procedure
38.1 Where disciplinary action may be necessary, the management representative shall notify the employee of the issues in writing and the employee will be given an opportunity to respond to these issues. In the event that the employee’s response is unsatisfactory, a first warning in writing may be issued. This warning will be recorded on the employee’s personnel file.
38.2 If the problem continues, the employee will again be notified in writing of the matter and a response requested from the employee. If appropriate, a second warning will be given to the employee and recorded on the employee’s personnel file.
38.3 In the event that the problem continues, the employee will again be notified in writing of the matter and a response requested. If appropriate, a final written warning will be issued to the employee and recorded on the employee’s personnel file.
38.4 In the event of the matter recurring, then the may be terminated after the matters have been investigated and reasons sought from the employee.
38.5 Summary dismissal of an employee may still occur for acts of ‘serious misconduct’ (as defined in the Workplace Relations Act 1996 (Cth)). Where an allegation of ‘serious misconduct’ is proven and the employer, having considered all the circumstances does not wish to terminate the employee’s employment, a warning may be issued under paragraph 38.2 or 38.3 of this provision.
38.6 During all steps in the Disciplinary Procedure, the employee has the right to representation of his or her choice.
38.7 Records relating to disciplinary procedures will be disregarded where a continuous period of 12 months elapses without further warning/s. records relating to disciplinary procedures will be removed from the personnel file after a period of two (2) years where no further warnings arise
• The applicant was summarily dismissed without notice for alleged serious misconduct in a letter dated 26 August 2009 following a meeting on 25 August 2009 which was attended by an ANF Representative and the applicant. The allegations which were said to constitute serious misconduct were set out in writing to the applicant in a letter from Mr Wayne Bailey the Facilities manager dated 18 August2009. 1
[9] Given these facts I find that the applicant has been dismissed within the meaning of s.386 of the Act and that FWA as presently constituted has the jurisdiction to determine the application. The second matter which must be determined is whether the dismissal was unfair within the meaning of s.385(b) of the Act.
Background
[10] It was not contested that the applicant performed her duties satisfactorily and there were no issues raised concerning performance or conduct during the period from the commencement of her employment in 1996 until May 2008 when Mr Wayne Bailey became the Facilities Manager. Evidence was given by two senior former employees, both Division 1 nurses, Ms Heather Pagels 2 and Ms Robyn Pang,3 that the applicant was a competent and caring worker. The applicant has worked on the night shift for many years.
[11] There is no doubt from the evidence of both sides in the proceedings that following the transmission of business in 2007 management has sought to make some changes to the work practices. For example the applicant and former employees gave evidence that it was common practice for staff on night shift to complete many of the duties before taking their meal break and hence to postpone the meal break until later in the shift and then to amalgamate the 30 minute unpaid meal break with the two ten minute paid rest breaks. Mr Bailey as Facilities Manager gave evidence that he sought to end this practice and ensure that breaks were taken as rostered and in the meal room.
[12] Mr Bailey and the applicant gave evidence that as part of Mr Bailey’s attempts to change work practices he made several visits to the facility to observe staff working on night shift during the early hours of the morning. Mr Bailey gave evidence that on one occasion he distributed copies of a code of conduct to all the night shift staff individually and reminded them not to sleep during their shifts.
[13] The new management also, prior to Mr Bailey’s engagement, altered the staffing arrangements in the downstairs area on the night shift to reduce the staffing from 2 to 1.
[14] The evidence for the applicant was that a considerable number of longer term employees had left in recent years and that some employees were not happy with the changes in management style.
[15] There was forensic examination during proceedings of the full list of incidents of alleged poor performance and/or conduct during the period between the appointment of Mr Wayne Bailey as facilities manager in May 2008 and the night of 12/13 August when the alleged serious misconduct which led to the summary dismissal took place.
[16] The allegations prior to the night of 12/13 August can be summarised as follows:
i. Two incidents of alleged failure to contact the facility appropriately about impending late arrival or absence in the later part of 2008. These two incidents led to warnings which were subsequently withdrawn.
ii. A first warning that was issued on 20 May 2009 concerning failure to contact the facility appropriately about impending late arrival on 22 March 2009. There were some other allegations which were raised at and prior to the meeting held concerning the warning but the applicant’s explanation was accepted in respect of those matters.
iii. A second warning that was issued on 29 July 2009 concerning alleged sleeping on duty on the night of 2/3 July.
[17] I deal with each of these three matters in turn below.
[18] The applicant denied that there had been any other prior warnings or counselling about any other matters. There was no evidence to the contrary except that it was suggested in evidence from Mr Bailey that there were prior warnings about sleeping on duty prior to July 2009. I deal with this matter later under the heading July 2009.
The withdrawn warnings in late 2008
[19] There were two incidents, one in August and one in November of alleged failure to contact the facility appropriately about impending late arrival or absence. These incidents led to two warning letters 4 (dated 19 November 2008 and 7 December 2008) being issued although the letters were not produced in the proceedings. The warning letters were withdrawn in writing by the respondent in December 2008 following intervention by the ANF5 on behalf of the applicant.
[20] It is clear that the procedures required by clause 38 of the collective agreement and also required by principles of fairness and natural justice were not followed in that the complaints were not given to the applicant, Ms Dafallah, in writing and the applicant was not given an opportunity to respond or be represented. Furthermore the facts are disputed. The applicant gave evidence that in respect of the first alleged breach she did in fact ring the facility on a number of occasions to advise of her late arrival but the phone was not answered and she says another employee subsequently told her the phone was out of order. She also denies the second alleged breach which related to notification of a sick day occurred. Ms Dafallah’s explanation, if it had been properly considered and investigated may well have been found to have been reasonable. Hence I can see no reason why in these circumstances, the warnings having been withdrawn by the employer, these matters should be taken into account further.
May 2009
[21] A “first written warning” was issued to the applicant on 20 May 2009 following a meeting where she was represented by Mr Willoughby-Thomas on 19 May. The allegations 6 considered at the meeting were in summary:
- Late arrival on 22 March and failure to contact the facility manager to advise him personally
- Failure to advise the Facility Manger of non-attendance for work on 8 May (the date the applicant was due back from annual leave)
- Failure to attend a proposed meeting to discuss the allegations on 15 May.
[22] The first written warning was issued concerning the applicant’s failure to “arrive to your rostered shift on time and your failure to contact your facility manager to advise him of your inability to work as rostered on 22 March 2009.” 7 It was accepted during the proceedings that the applicant did in fact ring the facility and advised them that she was running 10 minutes late. The applicant gave evidence that she did not ring Mr Bailey directly due to the fact that she did not have her mobile phone with her and Mr Bailey’s number was in her phone.8
[23] At the meeting on 20 May 2009 the management accepted the applicant’s explanation in respect to the other allegations made against the applicant. However, the circumstances are instructive.
[24] The meeting to discuss the allegation concerning the failure to contact the facility manager concerning late arrival was first scheduled for 26 March. It is the evidence of both Mr Bailey and the applicant that the ANF discussed this matter with Mr Bailey at the time and agreement was reached to postpone the meeting as the applicant was travelling on holidays overseas.
[25] There was a reference by Mr Bailey to an incident around 2004 when the applicant extended her annual leave by two weeks. This came to light because Mr Bailey had requested a list of all employees who had ever failed to return from leave on the originally approved date. There was no dispute about the basic facts in this instance. The applicant applied for leave at short notice because her sister was critically ill in her home country of Uganda. Once in Uganda a family member on her behalf applied for and was granted a leave extension of two weeks as the applicant’s sister had died as a result of the illness.
[26] In Mr Bailey’s witness statement he suggests that at the time the applicant applied for the leave in 2009 he asked the applicant if she had returned late from leave on a previous occasion. Also at that time he said that he counselled her about not returning late and about needing to provide a medical certificate if she fell ill. 9 However, the evidence in Mr Bailey’s cross examination10 and the evidence of the applicant and Mr Willoughby-Thomas make it clear that in fact this discussion occurred after the leave had been approved and in the conversation between Mr Bailey and the ANF. The applicant was in the ANF office when the telephone conversation with Mr Bailey took place.
[27] Whilst in Africa on leave between late March and early May 2009 the applicant contracted severe malaria and her daughter rang Mr Bailey to explain the situation and that the applicant would be unable to return to work on 8 May. Mr Bailey advised the applicant’s daughter that a medical certificate would need to be provided. These facts were clearly established by the evidence and were not disputed yet in a letter of the 15 May the company advised the applicant that: “you failed to notify the facilities manager of your non-attendance at work. This was the day you were required to return to work from an approved period of annual leave.” 11 The letter of 15 May was signed by Ms Ayres on behalf of the company but Mr Bailey confirmed in cross examination that he had read and approved the letters sent in respect to this matter.12
[28] The applicant and Mr Willoughby-Thomas gave evidence that Mr Bailey clearly knew he had been advised of the non-attendance and the reasons for it by the applicant’s daughter and that Mr Bailey continued to deny this at the meeting of 19 May but eventually conceded it. 13 Furthermore the applicant gave evidence that Mr Bailey continued to include her in the roster for the week of 8 to 15 May even though he had been advised several weeks earlier that the applicant was unable to attend work.14 This evidence was not contested by Mr Bailey or the respondent.
[29] The applicant gave evidence that as she was in a village in Uganda recovering from the serious illness she asked a relative in the city to fax the medical certificate to Mr Wayne Bailey. The medical certificate was produced in evidence in the proceedings and it has “ATTN Mr Wayne” written at the top, it is dated the 2nd of May 2009, it is on the Mulago Hospital In-patients Department letterhead, it has the correct personal details for the applicant, and in it the attending doctor clearly states his diagnosis “severe malaria with acute anaemia”. 15 Mr Bailey, the applicant and Mr Willoughby-Thomas gave evidence that at the meeting on 19 May Mr Bailey was provided with a copy of a transmission statement and the medical certificate which showed that there had been a failed attempt to send the medical certificate to Mr Bailey from Uganda in early May. Mr Bailey in his statement said that the medical certificate was not in English but the document submitted in proceedings which he conceded looked like the one he had been shown was clearly in English.16
[30] Finally, although it was never included in any of the letters setting out the allegations or in his original witness statement or in the written warning, Mr Bailey in his evidence to Fair Work Australia said that at the meeting on 19 May the applicant was also warned about sleeping on duty. Both Mr Willoughby-Thomas and the applicant who were present at the meeting deny this occurred. I am not satisfied that this occurred.
[31] It is accepted that the applicant did fail to notify Mr Bailey of her expected late arrival on 22 March and that she knew that the policy of the facility was that she should notify Mr Bailey directly and not just rely on notification to the facility switchboard. It is also accepted that a warning was issued in respect to this and that appropriate processes in accordance with clause 38 of the agreement were followed.
[32] The circumstances surrounding the warning issued on 20 May demonstrate that Mr Bailey had a hostile attitude to the applicant, was extremely resistant to even considering her explanations or responses to matters raised, and was prone to exaggerate and generalise when it comes to the conduct of the applicant. This certainly affects the weight that should be given to his evidence.
July 2009
[33] It is alleged that on the night of 2 July 2009 the applicant was asleep on the job during the period 3.45am until 4.35am. Mr Bailey in his statement suggested that “there had been complaints from three staff members about her continued sleeping on duty” and that “staff who worked that night stated that Mariam was in this position for most of the shift”. 17 No attempt was made to provide any evidence that the applicant was sleeping for most of the shift or of the complaints. I am satisfied that this was an example of Mr Bailey’s tendency to exaggerate and generalise when it comes to the conduct of the applicant.
[34] Mr Bailey also stated that during the meeting on 28 July 2009 about the incident “attention was drawn to the fact that she had been issued with a previous warning about sleeping on duty”. 18 There was no evidence produced concerning any previous incidents of alleged sleeping on the job. There was a previous incident when the applicant was resting in a chair when Mr Bailey came to the facility early in the morning. The applicant says that she was on her break at the time (which was not contested) and not asleep and that Mr Bailey talked to her about her sick leave the previous day on that occasion. Mr Bailey during the cross examination could not confirm that there had been a prior warning concerning sleeping on the job and gave evidence that what he was referring to was that he handed out to all staff on the night shift a copy of a code of conduct which he says included the requirement not to sleep on the job.19 The letter from the company withdrawing previous warnings20 refers only to punctuality. If there were other issues I am confident they would have been referred to.
[35] The applicant accepts that on 2 July she was resting in a chair with a coat over her and her feet on the heater during most of the period in question. However she says she was on her break (a combination of her meal break and the two rest breaks which total 50 minutes) and that she got up once during that period to attend to a resident (Margaret). She denies she was asleep but says she may have dozed.
[36] The applicant gave evidence that she was aware that an employee was photographing her on three occasions during the period in question. The respondent did not produce the photographic or video evidence nor did they produce the employee who took the photos. Mr Bailey said in his statement that the photos or videos taken by a fellow employee did show the applicant in a resting position in a chair at various points during a 50 minute period but the evidence was not presented. The claimed evidence was not shown to the applicant at any time including during the meeting at which she was asked to respond to the allegations made. It was clear from the evidence that the employee who took the photos was very hostile to the applicant. The applicant says in her statement that Mr Bailey said at the meeting of 28 July that he also viewed 400 minutes of video footage but this did not show the applicant sleeping on the job.
[37] A written warning was issued by Mr Bailey concerning sleeping on the job on 2 July between 3.45 and 4.35am. The allegation was put in writing and the applicant was given an opportunity to respond and she was represented as required by clause 38 of the collective agreement.
The allegations of serious misconduct – the night of 12/13 August
[38] The allegations that led to summary dismissal relate to the events of the night of 12/13 August. The allegations were set out in a letter from Mr Bailey dated 18 August. 21 An important background factor was that on that night it was the first time in approximately six years that the applicant had been required to work a full shift in the downstairs low care area. She normally worked in the first floor area where there are other staff present and she is familiar with the residents.
[39] Prior to 2007 two staff worked on the night shift in the downstairs area but under the new management only one staff person was allocated. Mr Bailey gave evidence that this was normally a Registered Nurse or a Personal Care Worker with an appropriate certificate 3 or 4 in aged care. The applicant was a Personal Care Worker level 1.
[40] The applicant gave evidence that she was nervous about working downstairs with residents with whom she was unfamiliar and very concerned given the warnings she had received and what she perceived as a hostile attitude from Mr Bailey that she might make some sort of error.
[41] Nurses Pagels and Pang gave evidence that the workload on night shift was heavy in the downstairs area with some 45 residents and they said it would be very difficult for a PCW 1 alone to handle the area. They gave evidence that they felt it would be difficult both because of the workload but also due to the unfamiliarity with residents needs, routines and requirements for all paper work to be completed by the applicant. Ms Pagels said in her statement that “An unfamiliar staff member on their own in such a situation can find that problems compound in a domino effect. The staff member misses an aspect of resident’s regime, the call buzzer goes off, another resident then has their regime disrupted, more buzzers go off etc with residents not being happy and complaining.” 22
[42] The applicant gave evidence, which was confirmed by Mr Bailey ,that at the beginning of her shift there was an incident where a resident had a nose bleed which took some time to attend to and which she documented as required. The applicant said that this led to a sequence of events similar to that described by nurse Pagels. Mr Bailey gave evidence that he was satisfied that one person on the night shift downstairs could handle the care needs of the residents satisfactorily.
[43] There were essentially four allegations which formed the basis for the dismissal.
Allegation 1 – Inappropriate treatment of Mrs Marjorie Woods
[44] An allegation as set out in the letter to the applicant from Mr Bailey of 18 August, 23 that “during the early hours of the morning on 13 August 2009, when Mrs Marjorie Woods was half asleep she was woken by you. Mrs Woods alleges that you grabbed her hand very roughly and twisting it in order to do her BSL (Blood Sugar Level).”
[45] Mr Bailey gave evidence that Mrs Woods had told him about the incident. However, Mr Bailey’s evidence was of a different sequence of events in that he said that Mrs Woods had claimed that she was awakened “by a sharp prick on the finger.” 24 Mr Bailey, who is also a nurse, conceded that the records of Mrs Woods showed that she suffered from mild confusion on occasions.25 He also gave evidence that she may be confused when awakened but that “she wouldn’t be confused after 15 or 20 minutes.”26 The evidence suggests that Mrs Woods was quite difficult and did not like staff disturbing her and required them to get permission before entering her room. Mr Bailey said that “My understanding is that Marjorie likes to stay in her room and she likes staff to announce themselves or gain her permission before they enter the room.”27 He conceded that Mrs Woods might be distressed to have a strange nurse enter her room at 6am and awaken her to complete the BSL test which was required.28 The applicant strenuously denies that she in any way treated Mrs Woods roughly when taking her BSL and claims that she did rouse Mrs Woods first by talking to her and announcing her presence. Her evidence on this matter was clear and plausible.
Allegation 2 – Not wearing uniform
[46] An allegation as set out in the letter to the applicant of 18 August, that the applicant was “not in uniform and that you were wearing a covering over your head that was bright coloured and that this frightened her (Mrs Woods).” 29
[47] Mr Bailey gave evidence that Mrs Woods had said that “someone dressed like a pirate was in my room and twisting my wrist” and that “the pirate was taking my BSL” and that the person “was a staff member who was wearing a brightly coloured head dress like a pirate”. 30
[48] In the proceedings Mr Bailey conceded that the applicant was in uniform and there were not two offences (not wearing uniform and wearing a scarf) as set out in the complaint and in his statement but only one allegation concerning the wearing of a scarf. Mr Bailey gave evidence that the wearing of a scarf was not consistent with the uniform policy. There was no suggestion that there had been any prior discussion with the applicant concerning the wearing of a scarf. The applicant stated that she wore a scarf on occasion because of her religion and or when her hair was not braided. A photograph of the applicant in the scarf she wore on 12 August was tendered and it is quite neat, small and high on the forehead. 31
Allegation 3 – Failure to check on Mr Robert Dean
[49] An allegation as set out in the letter from Mr Bailey to the applicant of 18 August that “Mr Robert Dean had complained that during the night he was not checked by the staff member who was on duty last night as he ought to have been”. 32
[50] Mr Bailey gave evidence that Mr Dean had complained that “he could not find the staff member who was on duty on the ground floor” and that “he was not attended when he rang to obtain a urinal.” 33
[51] The applicant gave uncontested evidence that Mr Dean was a resident who was rather independent and mobile. The applicant said that she had looked in to check Mr Dean was OK sometime around midnight and that she had been advised by the other staff that Mr Dean does not buzz for a urinal. The applicant also gave uncontested evidence that she had changed the pad of the woman who lives opposite Mr Dean three times during the evening and that there was no buzzer request from Mr Dean.
[52] There was some conflict in the evidence. The applicant said that Mr Bailey had alleged at the meeting of 25 August 2009 that she had failed to empty Mr Dean’s urinal while Mr Bailey said in his statement that the applicant had failed to provide a urinal when it was rung for. 34 There was no mention of the failure to provide a urinal or empty it in the letter of 18 August to the applicant which outlined the matters which constituted serious misconduct.
[53] Mr Bailey gave evidence in cross examination that the care requirements for Mr Dean were on the duty list and the respondent submitted that therefore the applicant was required to carry out these duties. 35 I accept that there is an obligation for an aged care employee to carry out the care duties required for each resident and the failure to do this can be a serious matter. However, there was a total lack of clarity as to what in fact the care requirements on the duty list were and that duty list was not provided as evidence in these proceedings or to the applicant at the time she was asked to respond to the allegations.
Allegation 4 – Failure to complete certain documentation
[54] An allegation as stated in the letter of 18 August from Mr Bailey to the applicant that the applicant “did not complete the documentation duties on this night” and in particular the ACFI (Aged Care Funding Instrument) documentation on residents continence and behaviour. 36
[55] The applicant accepts that she did not complete the ACFI documentation for the approximately 7 of the 43 residents who required such documentation. She says that she did complete the other required documentation including the bowel books, resident of the day records and documentation of incidents such as that of a resident with a nose bleed problem early in the shift. This was not contested. The applicant gave evidence that she did not complete the ACFI documents because she was not familiar with the residents and that the established practice in the facility and on the first floor where she normally worked was for staff to get assistance from others to complete documentation when they were new in that area and unfamiliar with the residents. Nurses Pang and Pagels gave evidence that it would be difficult for a PCW Worker, unfamiliar with the residents on the ground floor area to complete the documentation. 37
[56] The applicant also suggested that the fact that she was very busy also contributed to her failure to complete the documentation. The respondent suggested that the issue of being busy was a new explanation that had not been raised before but in my view the issue of being busy is raised by the applicant in her original statement as a part of her response to the allegations as a whole.
[57] Mr Bailey gave evidence that the completion of the ACFI documentation was an easy task which did not require “prior knowledge of the residents other than the information received at a handover about the resident”. 38 The applicant gave evidence that the ACFI documentation has to be completed within the first seven days for certain new residents and that this normally gave her time to become familiar with new residents before having to complete the documentation when she was rostered in her normal area upstairs in the facility.39 There was no suggestion that the applicant had failed to complete documentation previously which suggests that her explanation as to why she did not complete it has some plausibility.
[58] Mr Bailey gave evidence that if a Personal Care Worker was unfamiliar with residents or particular requirements the Registered Nurse on duty should be consulted and asked to assist. 40 The applicant gave evidence that at approximately 4am on 13 August she advised the Registered Nurse on duty upstairs that she would not be able to complete the ACFI documentation.41 This evidence was not contested. This appears to be consistent with what Mr Bailey suggests should happen in such a case. Mr Bailey gave evidence that there were until the last couple of years two staff rostered on the night shift in the downstairs low care area and that when the move was made to have a single staff member in the area it was expected that they could get assistance when required from a registered nurse upstairs.
[59] Mr Bailey and the applicant in their evidence confirm that the applicant did also advise staff of the failure to complete the ACFI documentation at the time of shift hand over. There is some conflict between the evidence of the applicant and that of Mr Bailey as to what the applicant said upon handover. The applicant says that she apologised to the staff about the failure to complete the documentation. Mr Bailey says that he was told that the applicant was more offhand. However, it is not disputed that she advised the staff on handover. Such actions are not consistent with wilful disobedience of a lawful instruction or actions inconsistent with the contract of employment.
Conclusions
[60] It is necessary for the employer to demonstrate that the alleged conduct occurred and that it was sufficiently serious to warrant summary dismissal. The failure of the respondent to call witnesses or produce documents which could have demonstrated the truth or otherwise of the allegations, particularly the allegations concerning the night of 12 August 2009, must be regarded as significant. It would not be appropriate in these circumstances for me to assume that the evidence which was not produced would in fact have proved or assisted the respondent’s case.
[61] The single witness for the respondent was Mr Bailey, the facilities manager, and for the reasons I have outlined earlier it would be dangerous to give too much weight to his evidence. The two residents who Mr Bailey says complained about the standard of their care were not called to give evidence and there was little evidence of any independent investigation of the complaints. In this context it is reasonable to not give too much weight to the evidence of the alleged residents’ complaints. Other employees and former employees directly involved in the events were not called to give evidence to validate or corroborate hearsay and direct evidence from Mr Bailey.
[62] Nothing adverse can be found against the applicant in respect to matters prior to the first warning concerning failure to ring Mr Bailey the facilities manager about impending late arrival at work on 22 March 2009. Although it is appropriate for management to have clear policies concerning notification of late arrival at work or of absences which employees can be expected to follow, the transgression in this case was not a serious one. I accept that the applicant did ring the facility but she did not ring Mr Bailey direct because she did not have his number with her.
[63] The second warning concerned alleged sleeping on the job on 2 July 2009. It is clear that Mr Bailey has sought to change the earlier practices in the facility of staff delaying and amalgamating their breaks on the night shift in order to have a rest during that period and I am satisfied that staff including the applicant were aware of that changed policy. Employees are entitled in my view to rest during their breaks and it would be unfair to penalise employees on night shift who doze during their breaks provided that they are able to respond to emergencies. It was not established to a reasonable standard of proof that the applicant was in fact sleeping throughout the alleged period. She gave evidence that was not contested that she got up during the period in question to attend to a resident Margaret. The applicant probably did breach the policy in respect to delaying and amalgamating her breaks on the night shift, however, the transgression in the circumstances was not a serious one. Despite the fact that this second warning is headed “final warning” it cannot be regarded as anything more than a second warning in the context of the disciplinary procedure requirements of clause 38 of the certified agreement.
[64] I now turn to the four elements of the alleged behaviour on the night of 12/13 August 2009 which are said by the respondent to amount to serious misconduct warranting summary dismissal.
i. The respondent has not produced sufficient evidence to show that the alleged poor care of Mrs Woods in fact occurred on the balance of probabilities. The explanation of the applicant is believable. Given that there was no suggestion of any previous incident of poor resident care on the part of the applicant over her 14 years of employment at the facility, it would have been reasonable in the circumstances for the employer to give the employee’s version of events more credibility.
ii. The applicant was in fact in uniform on the night in question but the wearing of a scarf might be said to constitute a breach of the uniform policy of the facility. However, the uniform policy was not produced in evidence and even if I was satisfied that there was a clear policy and that the applicant was aware of it, the breach would have to be seen as trivial in nature.
iii. The respondent has not produced sufficient evidence to show that the alleged poor care of Mr Dean in fact occurred on the balance of probabilities. The explanation of the applicant is believable. Even if I was satisfied that the event alleged had occurred it could not be regarded as a serious disciplinary matter particularly given that there was no suggestion of any previous incident of poor resident care on the part of the applicant over her 14 years of employment at the facility.
iv. The applicant did fail to complete some of the required documentation on the night of 12/13 August. I am satisfied that the employer should be able to expect the documentation to be completed and that the failure to do so is an important matter. However, the failure to complete some documentation without adequate explanation would have to be regarded as inadequate performance of duties and hence falls within conduct that should be the subject to appropriate counselling and warning. I would have to be satisfied that the applicant actually refused a reasonable instruction to complete the documentation – that is for the action to have been wilful- before it could be considered as behaviour which could be serious misconduct or conduct justifying summary dismissal.
In this particular case the failure to complete adequate documentation does not seem to me to justify disciplinary action at all given that the applicant normally completes documentation to the satisfaction of the employer and that the applicant had a reasonable explanation as to why it was not completed on this one occasion.
I believe the applicant when she says that she was very nervous about making an error on the night of 12/13 August because she believed that Mr Bailey was looking for a reason to dismiss her and that she lacked confidence in working in an unfamiliar area of the facility. The applicant also says that she advised a registered nurse of her failure to complete the documentation prior to the completion of the shift and it is probable that this did occur. Mr Bailey concedes that this is what a Personal Care Worker having difficulty with documentation should do.
[65] The employer acknowledges that it is bound by clause 38 of the collective agreement. In the proceedings counsel for the employer acknowledged that this means that unless there is serious misconduct which could justify summary dismissal three written warnings issued following the procedure outlined in the clause are required prior to the contemplation of dismissal. Clause 38 of the collective agreement is an agreed procedure and standard applying to both the applicant and the respondent that defines a fair approach to discipline and dismissal. In these circumstances a dismissal which does not occur consistent with that procedure and standard must be regarded as unfair unless there are exceptional other circumstances. The respondent did not argue that there were exceptional circumstances. The respondent argued that I could take into account the earlier warnings which did not meet the procedural requirements. I do not think in the circumstances that this is appropriate but even if it was it would not result in proven conduct that could in totality provide sufficient grounds for termination of employment.
[66] The procedure in clause 38 allows for summary dismissal for serious misconduct as defined in the Workplace Relations Act 1996. The definition in the 1996 Act is essentially the same as that provided for in Regulation 1.07 of the Fair Work Act 2009. Regulation 1.07 provides that the conduct is either “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” or “conduct that causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employers’ business”.
i. The alleged poor treatment of Mrs Woods and Mr Dean (64(i) and 64(iii)above) if proved, had the potential to cause risk to the reputation, viability or profitability of the employers business. However given that the behaviour has not been proved to the relevant standard of proof, that there is no evidence that the conduct was wilful, and that the incident was isolated it could not be said to “cause serious and imminent risk”
ii. The alleged wearing of a scarf contrary to uniform policy (64(ii) above) does not constitute serious misconduct.
iii. None of the conditions in Regulation 1.07(3) are met in that theft, intoxication, assault, fraud, or refusal of lawful instructions are not proved. I have found that the possible allegation of assault of resident Mrs Ward is not substantiated. The failure to abide by company policy or procedure does not of itself constitute refusal of lawful instructions, unless that refusal is wilful, serious or repeated. Such circumstances do not apply to any of the four allegations. In any case company policy and procedures were not produced in evidence in these proceedings.
iv. The failure to complete all resident documentation (64(iv) above) was at worst neglectful and could not be described as wilful or deliberate. The behaviour alleged could potentially cause risk to the viability or profitability of the employers business in that the documentation is important for the funding received by the Aged Care facility. However given that the applicant did inform other staff of the failure to complete the documentation in order that it could be completed by others and given that it was an isolated incident it could not be said to “cause serious and imminent risk”.
[67] Given the above I find that there were no grounds which could meet the definition of serious misconduct and which could justify summary dismissal.
[68] I find that if Mr Bailey had properly considered the responses of the applicant to the allegations made it would have been clearly evident to him that a case for serious misconduct had not been made out to a reasonable standard of proof. As evidenced by a number of incidents I have referred to earlier Mr Bailey was determined to find fault with the applicant and therefore sought to suppress or ignore factors which might tell in the applicants favour and too willing to believe factors which might tell against her. The matters surrounding her return from Uganda after contracting severe malaria are strong evidence of this.
[69] Even if there was not a collective agreement procedure for discipline which was binding on the employer, the totality of proven conduct is insufficient to justify dismissal let alone summary dismissal.
[70] The four matters which were alleged to have constituted serious misconduct are all matters properly described as allegations of “unsatisfactory performance” and section 387(e) of the Act requires me to take into account “whether the person had been warned about that unsatisfactory performance before the dismissal”. There was no evidence or argument put that any of these four matters were the subject of earlier allegations of unsatisfactory performance and they were not the subject of previous warnings.
[71] The employer is not a small employer and it did at the relevant times have a human resources manager and hence there are no specific factors related to section 387(f) and 387(g) of the Act which are relevant.
[72] I therefore find that the termination was harsh, unjust and unreasonable.
Remedy
1. Consideration or reinstatement or compensation
[73] An application has been made under Section 394 of the Act, and the applicant was protected from unfair dismissal at the time of being dismissed (Section 390(1)). The parties agreed that the return of the applicant to the workplace would not create serious problems. The respondent argued that I might find that compensation was more appropriate given the poor relationship between Mr Bailey and the applicant. I don’t find that this is sufficient reason to overturn the bias in the legislation towards reinstatement. The applicant gave evidence in the proceedings in a calm and clear manner despite the presence of Mr Bailey. The applicant acknowledged the need to implement reasonable management policies as set down by Mr Bailey. Although I have found that Mr Bailey has exaggerated matters and has been careless in his statements and was clearly looking for evidence which could enable him to dismiss the applicant he did not behave inappropriately in the presence of the applicant and did not demonstrate extreme hostility. There are no other factors which were put before me to argue against reinstatement in the event that I found that the dismissal had been unfair.
2. Reinstatement
[74] I order that the respondent reinstate the applicant to the position she held immediately prior to the dismissal as from 10 February 2010.
3. Continuity of service
[75] I consider it appropriate in the circumstances to also order, consistent with section 391(2) of the Act, that the period between the date of dismissal and the date of reinstatement should not affect the continuity of the applicants employment and shall be regarded as a period of continuous service with the employer for the calculation of leave and all other purposes.
4. Lost earnings
[76] The applicant gave evidence that she has made significant efforts to find additional employment during the period since her dismissal. The applicant listed a number of employers in the aged care sector whom she had contacted. However, the applicant gave evidence that she had not succeeded in obtaining any employment during the period which provided her with any income to compensate her for any of the loss of income from the respondent. 42 I order that the respondent pay the applicant for the lost income during the period between her dismissal and 10 February 2010. This amount should be discounted by the amount, if any, of any additional non-reimbursable government benefits which may have been paid to the applicant due to her loss of earnings during the period since her dismissal.
5. Settlement of lost earnings
[77] I direct the representatives of the employer and the applicant to meet and seek to reach agreement on the amount to be paid pursuant to this order and the timing of the payments. In the event that agreement cannot be reached within 14 days of this decision then the representative of the applicant is directed to advise Fair Work Australia and I will relist the matter for further order concerning the payment of lost earnings.
COMMISSIONER
Appearances:
Mr Willoughby-Thomas for the Applicant
Mr Rahilly for the Respondent
Hearing details:
2010
Melbourne
February 3, 4
1 Exhibit A3, attachment 9.
2 Exhibit A1.
3 Exhibit A2.
4 Exhibit A7, withdrawn letter.
5 Exhibit A6, letter of ANF.
6 Exhibit A3, attachment 4, letter to applicant 15 May 2009.
7 Exhibit A3, attachment 5.
8 Exhibit A3 at 27.
9 Exhibit R1 at 17.
10 PN976 to 983.
11 Exhibit A3, attachment 4.
12 PN938.
13 Exhibit R3 at 23 and PN728.
14 Exhibit R3 at 14 to 23.
15 Exhibit A8.
16 Exhibit R1 at 18 and PN961.
17 Exhibit R1 at 20.
18 Exhibit R1 at 21.
19 PN765 to 784.
20 Exhibit A7.
21 Exhibit A3, attachment 9.
22 Exhibit A1 at 9.
23 Exhibit A3, attachment 9.
24 Exhibit R1 at 8.
25 PN902.
26 PN1161.
27 PN905.
28 PN908 to 910.
29 Exhibit A3, attachment 9.
30 Exhibit R1 at 8.
31 Exhibit A5.
32 Exhibit A3, attachment 9.
33 Exhibit R1 at 7.
34 Exhibit R1 at 7 and PN399 to 400.
35 PN865.
36 Exhibit A3, attachment 9.
37 Exhibit A1 at 10 and Exhibit A2 at 9.
38 Exhibit R1 at 10.
39 PN395.
40 PN1041, PN1046, PN1095 and PN1102.
41 Exhibit A3 at 41 and PN377 to 386.
42 PN366 to 368.
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