Mark Cook v The Salvation Army Victoria Property Trust T/A the Salvation Army EastCare - [2014] FWC 5808

[2014] FWC 5808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Cook
v
The Salvation Army Victoria Property Trust T/A The Salvation Army EastCare
(U2014/454)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 22 AUGUST 2014

Application for relief from unfair dismissal - harsh, unjust or unreasonable - application dismissed.

[1] On 18 February 2014 Mr Mark Cook (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by The Salvation Army Victoria Property Trust T/A The Salvation Army EastCare (EastCare - the Respondent) on 10 December 2013 was harsh, unjust or unreasonable.

[2] The application was the subject of a hearing before Commissioner Cribb on 12 May 2014. That hearing dealt with a jurisdictional objection raised by EastCare concerning the application having been lodged outside the 21 day statutory timeframe. In a decision handed down on 15 May 2014 1, Commissioner Cribb determined that there were exceptional circumstances warranting the granting of an extension of time for Mr Cook to lodge his application.

[3] In these proceedings, Mr Cook gave evidence on his own behalf, while Ms Andrea Greenwood, EastCare’s Out of Home Care Manager, gave evidence for the Respondent.

[4] For the reasons set out below, I have found that Mr Cook’s termination was not harsh, unjust or unreasonable and therefore dismiss the application.

Background

[5] Mr Cook was employed by EastCare as a Youth Worker, Residential - Night Stand-Up Shift. A stand-up shift means that the employee is required to be awake during the shift 2. Mr Cook commenced employment with EastCare on 14 January 2013. By way of background, EastCare Residential Youth Services supports young people in Residential Programs which provide Out of Home Care services in Melbourne’s eastern suburbs3.

[6] Mr Cook was summarily dismissed by EastCare on 10 December 2013. The termination letter states:

“I refer to our meeting with you today at 11.00am which was attended by you and your brother as a support person together with Andrea Greenwood, Out of Home Care Manager. During that meeting we discussed a series of incidents that took place on the night of the 24th November 2013 at a residential unit in Elgar Rd Box Hill that resulted in a DHS Quality of Care investigation finding that an “Abuse in Care” allegation has been substantiated.

As discussed during the meeting, your conduct during that incident:-

was wilful and deliberate behaviour that is inconsistent with the continuation of the contract of employment;

was conduct that caused serious and imminent risk to the health and safety of a person, and the reputation of The Salvation Army, in that you assaulted and intimidated a young person in your care;

Having taken into consideration your explanation for the incidents documented above, we consider your actions constitute serious misconduct warranting summary dismissal.

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to an including the date of this letter.” 4

[7] As to the incidents which occurred on the night of 24 November 2013, drawing on the Quality of care concern: Investigation outcome report 5 (the QC investigation) it was alleged by a female resident that Mr Cook had grabbed a young male resident “with two hands around his neck while he was making a sandwich in the kitchen in the early hours of the morning” and that he had “taken the sandwich ... and thrown it in the bin.” It was further alleged by the female resident that Mr Cook:

(i) would not let her, the young male and his brother back into the unit “for about 20 minutes” after they had gone outside for a smoke at around 3.30am; and

(ii) had intimidated her when she did not turn off music she was playing on her phone and had yelled at her and derided her in front of the two male residents.

[8] The female resident mentioned her intention to report the incident to the Victorian Department of Human Services (DHS) to a Residential Care Worker at the facility late on the morning of 24 November 2013. The Residential Care Worker informed Ms Greenwood of the incidents and she in turn reported the incident to DHS in accordance with EastCare’s statutory obligations. Mr Cook was suspended on full pay later that day pending the outcome of QC investigation.

[9] The QC investigation was conducted by a panel of five persons - four drawn from DHS with the fifth member being Ms Greenwood. As part of the QC investigation all three young people involved in the incidents and Mr Cook were interviewed by a subset of members of the Investigation Planning Group (IPG).

[10] The QC investigation found that the allegation of abuse by Mr Cook was substantiated. More specifically, based on the interviews of all the persons involved, the IPG concluded “that on the balance of probability Mr Cook has physically abused” the young male resident and that he provided “poor quality of care” to the other two young persons, “using derogatory language to” the female resident and “speaking negatively about her to other clients.”

[11] EastCare was advised by DHS on 4 December 2013 that the allegation of abuse by Mr Cook had been substantiated and decided to conduct an investigation to determine what, if any, disciplinary action may need to be taken in respect of the incidents. The meeting was initially scheduled for 6 December 2013 but was delayed until 10 December 2013 to enable Mr Cook to seek some advice and arrange for a support person to accompany him.

[12] Mr Cook was summarily dismissed later that day.

[13] On 7 January 2014 Ms Janet Jukes, Director, EastCare Network, wrote to Mr Cook providing a copy of the QC investigation report 6. That letter included the following:

“... Should you wish to request a review of the decision made to substantiate the allegations, you may write to Ms Mary Reid, Director of Child Protection, 883 Whitehorse Road, Box Hill VIC 3128.”

The Applicant’s submissions

[14] Mr Cook’s submissions essentially challenged the findings of the QC investigation and contended that EastCare had failed to provide a safe work environment as a result of several factors, including inadequate training and a lack of supervision and responsiveness to work, health and safety concerns raised by Mr Cook. Mr Cook also submitted that EastCare had failed in its duty of care by requiring him to work his shift alone and that Ms Greenwood had failed to respond to his emails or phone messages following the resignation of his immediate supervisor earlier in 2013.

[15] The thrust of Mr Cook’s submission regarding the QC investigation is perhaps best encapsulated in the following passage drawn from his Outline of Submissions:

“... where we now point out what we are showing, that being a collusion of 3 hostile ‘witnesses’ if you can account witness as not, with a manufactured set of events taken as fact, but unravelling through misalignment of their stories and no justice or good faith shown towards Mark [Mr Cook] in exposing their glaring holes, which raises further questions to his dismissal.”

[16] Mr Cook also submitted that there were instances of other EastCare employees who were involved in physical contact with residents but continued to be employed by EastCare, though it was acknowledged that the employees had been moved to other units.

[17] As to remedy, Mr Cook was seeking financial compensation.

The Applicant’s evidence

[18] Mr Cook did not provide a witness statement. Under cross examination he described himself as “pretty seasoned’, having worked with young people for fourteen years. With regard to the incidents which occurred on 24 November 2013, Mr Cook acknowledged that he did handle the young male, but denied choking him or lifting him off the ground. He further attested that he handled the young male for personal safety reasons and that he considered that he had done so reasonably. Mr Cook also admitted to taking a sandwich from the young male’s hand and throwing it in the bin. He stated that he was neither violent nor angry in doing so, describing his demeanour as stern and designed to assert his authority.

[19] In his evidence Mr Cook alluded to the fact that the young male did not wish to press police charges over the incident. He also cited as mitigating factors that he had no direct supervisor for a period of nine and a half months and received no training while employed by EastCare. Mr Cook indicated that he could not foresee the incidents and as such had been unable to seek assistance or guidance prior to them occurring and that he had disengaged after the incidents. Mr Cook acknowledged that he “imagined” that he would have read EastCare’s assault prevention policy.

[20] Mr Cook confirmed that he had not challenged the findings of the QC investigation as he was not aware that he could do so.

The Respondent’s submissions

[21] In short, EastCare submitted that Mr Cook’s application should be dismissed as his behaviour on the night of 24 November 2013 amounted to misconduct. While EastCare acknowledged that there was disagreement as to the degree to which Mr Cook managed the situation on the night of the incidents, it submitted that there seemed to be no disagreement that Mr Cook had handled the young male, that he had locked three residents out of their house inappropriately and that he had intimidated the three residents inappropriately.

[22] EastCare further submitted that Mr Cook had been afforded procedural fairness in its consideration of the findings of the QC investigation, highlighting that he was provided with the opportunity to respond to the investigation report but in doing so showed no remorse for his actions. EastCare also submitted that consideration was given to redeploying Mr Cook but that it was unable to manage this either logistically or on safety grounds.

[23] EastCare also pointed out that in forwarding the completed QC investigation report to Mr Cook on 7 January 2014 that it had mentioned the scope to seek a review of the investigation report (see paragraph [13] above).

The Respondent’s evidence

[24] Ms Greenwood attested, inter alia, that:

(a) Mr Cook worked alone on the night shift which is the norm in the industry and in The Salvation Army (TSA);

(b) there were a number of avenues available to Mr Cook to respond to the incidents, for instance he could have accessed the support of colleagues through a 24 hour on call facility, he could have called the local police or he could have used the lockable room in the house which is provided for security purposes;

(d) she was informed on the morning of 24 November 2013 by a Residential Youth Worker at the facility that that there had been a incident at the facility in the early hours of the morning involving Mr Cook;

(e) Mr Cook had not completed an incident report prior to leaving work on 24 November 2013;

(f) she reported the incident to DHS as required and rang Mr Cook to advise that he had been suspended on full pay while the QC investigation took place;

(g) she had participated in the QC investigation and was involved in three of the four interviews conducted as part of the investigation (the exception being the interview of brother of the young male handled by Mr Cook);

(h) she met with Mr Cook on 10 December 2013 to discuss the QC investigation findings, adding that at that meeting Mr Cook appeared to show no remorse for his actions and failed to understand that what he did was wrong; and

(i) she failed to understand why the incidents had occurred at all, particularly as she was not aware of any rule which prevented house residents from using the kitchen at night. 7

[25] Under cross examination Ms Greenwood reiterated many of the above points. In addition, she indicated that the matter of Mr Cook handling the young male had been referred to the police. With regard to the QC investigation, Ms Greenwood stated that the IPG had considered the evidence as set out in the statements of the individuals interviewed and the overall consensus was that the incidents did occur, though she did note that there were variations in the statements regarding the severity of Mr Cook’s response. Ms Greenwood also mentioned that she was just one of five members of the IPG. As to Mr Cook’s assertion that she had failed to respond to his emails or phone messages, Ms Greenwood attested that she had no evidence of emails or missed calls from Mr Cook.

The statutory framework

[26] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Cook is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”

[27] There is no dispute that Mr Cook was dismissed, so s.385(a) of the Act is satisfied. Mr Cook contends that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. EastCare is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Cook was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[28] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[29] In Rode v Burwood Mitsubishi (Rode’s Case) 8a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.9 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is `sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[30] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King’s Case) 10. In its decision in King’s Case the Full Bench, drawing on Moore J’s comments in Edwards v Guidice11, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[31] What needs to be determined is firstly whether the alleged conduct took place and, if so, whether it constituted a valid reason for Mr Cook’s dismissal. Consistent with King’s Case, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it.”

[32] In this case, it is not disputed that Mr Cook handled the young male - he admits that he did. What is disputed is the severity of the conduct. The evidence before the Commission in this regard is limited to Mr Cook’s viva voce evidence and the QC investigation report. While Mr Cook’s submissions in large part sought to challenge the QC investigation’s findings, as previously mentioned, Mr Cook has not formally challenged those findings. Further, as noted at paragraph [10] above, based on the interviews with Mr Cook and the three residents involved in the incidents the IPG concluded “that on the balance of probability Mr Cook has physically abused” the young male resident. While I accept that Mr Cook disagrees with the conclusion reached by the IPG, in the absence of any evidence which establishes that the QC investigation process was fundamentally flawed, there is no basis for the Commission to reach a conclusion different to that reached by the IPG regarding Mr Cook’s conduct.

[33] Based on the QC investigation report, it appears that the incidents arose primarily from the young male handled by Mr Cook using the kitchen on three occasions during the night to prepare sandwiches, despite Mr Cook’s direction after the first occasion that he not prepare any more food but that he could have fruit or water. How something so seemingly innocuous could escalate into the incidents is difficult to comprehend, particularly in the apparent absence of any rule which prevented house residents from using the kitchen at night.

[34] Accepting the IPG’s finding regarding Mr Cook’s conduct, I turn to the issue of whether or not Mr Cook’s actions constitute a valid reason for his dismissal. A useful backdrop to considering that issue is the Guidelines for responding to quality of care concerns in out-of-home care 12 published by DHS. The Guidelines describe the approach that is to be used by DHS and community service organisations (CSOs) when responding to quality of care concerns in out of home care. The following extracts from the Guidelines provide a brief insight into key considerations in that approach.

“Vulnerable children and young people who are removed from the care of their parents because of abuse or neglect need the best care that our community can provide. The safety and wellbeing of these children and young people is the paramount consideration for everyone involved in their care.” 13

“Provision of high quality out-of-home care involves significant emphasis on a partnership between the department and CSOs. They must hold themselves, and carers, to high standards of care when they accept responsibility for the care of a child or young person who has been removed from his or her home. When a quality of care concern is raised about a child or young person in out-of-home care, Child Protection, CSO management and staff, carers and police must work together to ensure that the safety and best interests of the child are paramount at all times and that an effective and timely response is achieved.” 14

“The safety and best interests of children in out-of-home care will always be paramount in all quality of care decisions. However, it is important to consider the guiding principles established in section 2.1, which direct that in the course of managing quality of care concerns, carers will be treated fairly, honestly and with respect. The rights of carers to information, timely processes and natural justice must be respected. In addition, the carer’s need for support and information throughout the process should be recognised and, as far as possible, accommodated.” 15 [Underlining added, references not included]

[35] What can be drawn from the above excerpts is that the young people in out of home care are vulnerable for a range of reasons and that their safety and best interests are paramount. Mr Cook’s actions were inconsistent with this underlying emphasis on the safety and best interests of the residents involved in the incidents.

[36] Also relevant in the context of determining whether or not there was a valid reason for Mr Cook’s dismissal are TSA policies and procedures such as its Employee Code of Conduct and the TSA EastCare Network Assault Prevention Policy.

[37] Among other things, the TSA Employee Code of Conduct sets out the responsibilities of an employee stating that:

“All employees have a responsibility to:

Be personally responsible and accountable for their own performance, behaviour and attendance in the workplace

Undertake their duties and behave in a manner that is consistent with the provisions of the Employee Code of Conduct

Report any departure from the Employee Code of Conduct by themselves or others

Comply with organisational policies and procedures ...” 16

The document goes on to state that a breach of the Code of Conduct may result in counselling, disciplinary action or termination of employment. 17 Mr Cook signed a form dated 11 January 2013 stating that he had read the Code of Conduct, understood the requirements and expectations of him as an employee and agreed “to these terms and conditions of employment.”18

[38] The TSA EastCare Network Assault Prevention Policy states at Item 4.4.2 that:

“Staff should not:

Abuse, threaten or insult the client.

Use protective gestures with arms, hands or body.

Push or touch the client in an aggressive manner unless it is necessary for you to do so.” 19

[39] As stated in the termination letter, EastCare considered Mr Cook’s actions to “constitute serious misconduct warranting summary dismissal.” Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) defines serious misconduct as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) ...

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) ...

(iii) assault; ...”[Underlining added]

[40] Relying on the IPG’s conclusion “that on the balance of probability Mr Cook has physically abused” the young male resident and that he has provided “poor quality of care” to the other two young persons, “using derogatory language to” the female resident and “speaking negatively about her to other clients”, supports a finding that:

(i) Mr Cook did not meet the requirements of the TSA EastCare Network Assault Prevention Policy or the TSA Employee Code of Conduct; and

(ii) Mr Cook’s actions constitute serious misconduct as defined in the Regulations.

[41] Taking into account all these factors, together with Mr Cook’s fourteen years experience of working with young people, I am satisfied that there was a valid reason for Mr Cook’s dismissal. Drawing on the language of the decision in Rode’s Case, I am satisfied that the reason for termination is defensible or justifiable on an objective analysis of the relevant facts and was not “capricious, fanciful, spiteful or prejudiced.”

[42] Without dismissing the difficulty and challenges involved in caring for vulnerable young people, particularly where they are affected by marijuana as was the case with the three residents involved and where they were also “mouthy” as Mr Cook described it in his interview with the IPG, it is difficult to comprehend why an experienced youth worker such as Mr Cook did not better handle a situation involving the use of the kitchen and avoid it escalating to the point that it eventually did.

(b) Whether the person was notified of that reason

[43] The chronology of events following the incidents of 24 November 2013 can be summarised as follows.

24 November 2013 - Ms Greenwood rang Mr Cook and advised that he had been suspended on full pay while the QC investigation was conducted. On the same day, Ms Karina Hogan, EastCare’s Regional Manager, Youth and Residential Services, wrote to Mr Cook reiterating Ms Greenwood’s advice that he had been suspended on full pay pending the QC investigation 20.

29 November 2013 - Mr Cook is interviewed as part of the QC investigation.

4 December 2013 - EastCare writes to Mr Cook regarding the serious misconduct meeting scheduled for 6 December 2013. The letter states:

“The purpose of this meeting is to discuss serious misconduct concerns, which include:

Allegations of abuse in care that took place on 24th November 2013 at Elgar Rd Residential Unit” 21

10 December 2013 - the serious misconduct meeting with Mr Cook occurred. Mr Cook was summarily dismissed later that day with the termination letter setting out the reasons for his dismissal (see paragraph [6] above).

[44] Taken together, the above indicates that Mr Cook was notified of the reasons for his dismissal.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[45] Drawing on the chronology outlined at paragraph [43] above, Mr Cook was provided with an opportunity to put his version of events regarding the incidents of 24 November 2013 when he was interviewed as part of the QC investigation on 29 November 2013. Further, Mr Cook was given the opportunity to respond to the QC investigation findings at the serious misconduct meeting with EastCare on 10 December 2013.

(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

[46] It is not disputed that Mr Cook was accompanied by his brother to the serious misconduct meeting of 10 December 2013. Further, it is not disputed that this meeting was rescheduled from 6 December 2013 to enable Mr Cook to seek some advice and arrange for a support person to accompany him to the meeting.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[47] Mr Cook’s dismissal does not relate to unsatisfactory performance. Accordingly, this is not a relevant consideration in this matter.

(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

[48] EastCare submitted that it is not a small business and that its managers were in contact with Divisional Human Resource Managers and also TSA’s Human Resources Department regarding its response to the incidents and the management of Mr Cook. As such, the size of the enterprise is not a relevant consideration in this matter.

(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

[49] As noted above, EastCare drew on in-house human resource specialists in relation to its response to the incidents and the management of Mr Cook. As such, the size of the enterprise is not a relevant consideration in this matter.

(h) Any other matters that FWC considers relevant

[50] As noted at paragraph [14] above, Mr Cook contends in his submissions that EastCare failed to provide a safe work environment as a result of several factors, including inadequate training and a lack of supervision and responsiveness to work, health and safety concerns raised by him. I will deal with each of these contentions separately.

[51] On the issue of training, Mr Cook in his submissions posed a number of questions as to why he had not received training in various aspects of the requirements of his role as set out in the position description and which challenged the quality and/or comprehensiveness of his induction. However, these questions were not put to Ms Greenwood under cross examination.

[52] On the other hand, EastCare submitted that Mr Cook had undertaken some online induction and had been accompanied by a buddy on his first shift 22. Further, as part of his induction, Mr Cook had endorsed various policy documents, including TSA’s Employee Code of Conduct. This is consistent with Mr Cook’s acknowledgement under cross examination that he imagined he would have read the TSA EastCare Network Assault Prevention Policy.

[53] Also relevant to the training issue is Mr Cook’s description of himself as pretty seasoned having worked with young people for fourteen years.

[54] While it is clear that Mr Cook did not demonstrate a detailed knowledge of EastCare’s policies, the evidence supports a finding that he was provided with induction training and support. That, together with Mr Cook’s extensive experience, supports a view that it was not unreasonable for EastCare to have expected Mr Cook to have better dealt with the situation. This in turn supports a finding that the absence of training is not a relevant consideration.

[55] As to the various work, health and safety (WHS) issues raised by Mr Cook, his submissions again posed a series of questions and made a number of assertions which were not explored when cross examining Ms Greenwood. Further, Mr Cook indicated that he had not raised his concerns with WorkSafe Victoria in the face of EastCare’s alleged lack of responsiveness. Also relevant is Ms Greenwood’s undisputed evidence that it was common practice in the industry and TSA for only one person to be rostered for the night shift in out of home care residential units. Together these factors support a finding that WHS is not a relevant consideration in Mr Cook’s dismissal.

[56] As to the alleged lack of supervision, it is disputed as to whether or not Ms Greenwood received any emails and or phone messages from Mr Cook. Further, Mr Cook’s evidence was that he did not see the incidents coming. Against that background, it is not clear how supervision would have been of any assistance in dealing with an incident which arose in the early hours of the morning. Further Ms Greenwood’s undisputed evidence was that there were a number of avenues available to Mr Cook to respond to the incidents, i.e. he could have accessed the support of colleagues through a 24 hour on call facility, he could have called the local police or he could have used the lockable room in the house which is provided for security purpose. This supports a finding that the lack of supervision is not a relevant consideration in Mr Cook’s dismissal. Having said that, I do acknowledge that a period of several months is a long time for any employee to be without direct supervision.

[57] Against that background, I find that there are no other relevant considerations.

Conclusion

[58] Drawing on the above analysis, I find that there was a valid reason for Mr Cook’s dismissal, that Mr Cook was notified of the reason and was given an opportunity to respond, that Mr Cook was able to and did seek the assistance of a support person(s) and that there are no other relevant matters.

[59] For all these reasons I do not consider that Mr Cook’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to this effect is attached at PR554613.

DEPUTY PRESIDENT

Appearances:

T. Aalders for the Applicant.

M. Scholz with C. Boon for the Respondent.

Hearing details:

2014.

Melbourne:

August 6.

1 [2014] FWC 3201

2 Exhibit S1 at paragraph 3

3 Form F3 - Employer Response to Unfair Dismissal Application at Attachment 2

4 Ibid at Attachment 6

5 Applicant’s Outline of Submissions at Appendix E

6 The Salvation Army (TSA): Outline of Submissions at Attachment 2 to Appendix C

7 Exhibit S1

8 Print R4471

9 (1995) 62 IR 371

10 [2000] AIRC 1019.

11 (1999) 169 ALR 89 at 92 per Moore J.

12 Ibid - Foreword

14 Ibid - page 4

15 Ibid - page 22

16 The Salvation Army (TSA): Outline of Submissions at page 6 of Attachment 3 to Appendix B

17 Ibid

18 Ibid at Attachment 5 to Appendix C

19 Ibid at Attachment 3 to Appendix C

20 Form F3 - Employer Response to Unfair Dismissal Application at Attachment 4

21 Ibid at Attachment 5

22 The Salvation Army (TSA): Outline of Submissions at Item 2.5

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