Matthew Gall v Brain Injury Association of Queensland Inc. T/A Synapse
[2014] FWC 6048
•10 SEPTEMBER 2014
| [2014] FWC 6048 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Gall
v
Brain Injury Association of Queensland Inc. T/A SYNAPSE
(U2013/17396)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 10 SEPTEMBER 2014 |
Application for relief from unfair dismissal; use of restrictive practice to immobilise a client suffering an acquired brain injury; whether serious misconduct; whether valid reason; conduct was serious misconduct would have justified summary dismissal; the misconduct was a valid reason for dismissal; dismissal not harsh, unjust or unreasonable; application dismissed.
Introduction
[1] Matthew Gall (Applicant) was employed as a Lifestyle Support Worker by the Brain Injury Association of Queensland Inc (Respondent) until his dismissal on 5 December 2013. The Applicant began employment with the Respondent on 24 November 2011. The Applicant’s dismissal followed an incident with a client (Client) who suffers from an acquired brain injury and is a resident in one of the Respondent’s facilities. The incident occurred on 28 September 2013 and according to the Respondent, following an investigation into the incident the Respondent was satisfied that the Applicant had applied a physical restraint which was a restrictive practice in response to the Client’s behaviour and consequently had breached his contractual obligations and the Respondent’s policy regulating restrictive practices. 1 The dismissal was effected immediately on 5 December 2013, the date on which the Applicant was notified of the dismissal and he was paid in lieu of notice.2
[2] On 13 December 2013 the Applicant applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). Turning first to the initial matters which must be decided before the merits of an application are considered. 3 It is not in dispute4 and I find that:
● The application was made within the time prescribed in s.394(2);
● The Applicant was at the date of his dismissal protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and the Health Professionals and Support Services Award 2010 covered the Applicant in his employment with the Respondent;
● The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and
● The dismissal was for alleged conduct and was not a case of genuine redundancy within the meaning of s.389 of the Act.
[3] As to the merits of the application I have reached the conclusion that the Applicant’s dismissal was not unfair. My reasons for that conclusion follow below.
Background, factual context and findings
Respondent’s service
[4] The Respondent is a Queensland-based organisation that provides support services through the provision of supported accommodation facilities to persons with acquired brain injuries and who demonstrate complex and challenging behaviours. 5 The clients housed in the supported accommodation facilities operated by the Respondent, are adults with an intellectual or cognitive disability and exhibit behaviour that can cause harm.6
Respondent’s policies
[5] In order to effectively deliver its service to clients, the Respondent has promulgated a number of policies. The Respondent has promulgated a “Model of Practice Policy” 7, which sets out as its purpose the provision of support services to individuals with an acquired brain injury.8The support services are aimed at achieving outcomes within a framework that promotes the rights of the individual.9 A related policy is the “Operative Policy – Restrictive Practices”.10 It sets out the limits of an employee’s response in dealing with challenging behaviour that might be exhibited by a client of the Respondent. It is worthwhile highlighting some aspects of that policy.
[6] First, the policy recognises that clients receiving a disability service, have an intellectual or cognitive disability and the disability might cause them to behave in a way that might cause harm to themselves or to others. 11
[7] Secondly, the policy sets out its purpose of ensuring that clients are supported in appropriate ways, in a safe environment and in a way “that recognises the adults rights and needs”, with the focus on preventing or reducing behaviour that causes harm through various support mechanisms but doing so in a manner that is consistent with limitations on the use of restrictive practices. 12
[8] Thirdly, the policy notes that if a restrictive practice is to be deployed because it is necessary to manage the behaviour of a client, the practice should only be deployed in a way that, inter alia, has regard to the human rights of the client and is the least restrictive way of ensuring the safety of the client and others. 13
[9] Fourthly, the policy provides guidance on that which is meant by deploying a restrictive practice in the least restrictive way, that is, in a way that ensures the safety of the client and others but imposes the “minimum limits on the freedom” of the client as is practicable in the circumstances. 14
[10] Fifthly, the policy aims at the reduction or elimination of the use of restrictive practices through the development of client specific positive behaviour plans. 15
[11] As is evident from the policies, the Respondent’s objective is to provide services to clients which emphasises a client’s human rights, including to make the decisions and to communicate through behaviours that are challenging, and therefore to deploy interventions which are client centred and least restrictive. Put simply the emphasis of the policies is on managing the environment appropriately and taking proactive steps so as to obviate the need for, or at least minimise an intervention which involves a restrictive practice. 16
The Applicant’s employment
[12] The Applicant began working with the Respondent as a Lifestyle Support Worker on 24 November 2011. 17 In August 2012, through changes to the Queensland workforce of the Respondent, much of the Respondent’s workforce including the Applicant became employed on a permanent part-time basis.18 At about that time the Applicant entered into an employment agreement with the Respondent.19 Attached to the employment agreement is a position description which sets out the key duties and responsibilities of the position into which the Applicant had been employed.20 Under the agreement, the Applicant was employed in the position of Lifestyle Support Worker21 as described in the position description.22
[13] Relevantly, the position description provides that a Lifestyle Support Worker is responsible for providing day-to-day support to clients in line with their support needs and that in doing so a Lifestyle Support Worker is to ensure that support provided to clients is consistent with the Respondent’s model of practice. 23 Further a Lifestyle Support Worker is required to actively promote the principles of least restrictive alternatives in the provision of support to clients.24
[14] In essence, the Applicant was required under the employment agreement, in carrying out his duties as a Lifestyle Support Worker, to comply with and give effect to the Respondent’s model of practice which included its policy on restrictive practices.
[15] Training in the Respondent’s policies is given to Lifestyle Support Workers, including the Applicant during the induction process 25 and thereafter reinforced through team and group meetings.26 The Applicant also attended a restrictive training practices workshop conducted by Ms Tara Kent, an Accommodation Coordinator employed by the Respondent, on 3 September 2013.27 The Applicant understood that in the discharge of his duties as a Lifestyle Support Worker he was obliged to use, in each case, the least restrictive alternative in dealing with clients.28
Incident with Client on 28 September 2013
[16] The Applicant was not scheduled to work on 28 September 2013. He was called in to cover a shift at the Respondent’s Lawnton facility. 29 Although the Applicant had previously performed work at the Lawnton facility, he had not previously encountered the Client at the centre of the incident which later unfolded.30 The Applicant gave evidence that when he arrived at the Lawnton facility other staff on duty were busy cleaning the Client’s vomit from the floor.31 Following a discussion with staff about the possible causes of the vomiting, the Applicant said that he accessed the Client’s files and read about the Client’s violent behaviours. Thereafter he reviewed the Client’s support plan.32
[17] The Applicant said that the support plan listed triggers for behaviours the Client has previously exhibited, and he determined the most important thing to be aware of was the Client’s personal space. 33 The Applicant observed the other triggers set out in the support plan included loud noises, crowds, proximity to people and feeling unimportant.34 The Applicant said he received further information about the Client from Mr Kisega Sola and Mr Aaron McPherson who were both on duty for part of the Applicant’s shift on 28 September 2013.35 The information included that the Client had a tendency to punch staff but the punches did not really hurt and that he had dragged two other employees to the ground, one of whom he had bitten on the eye socket.36 During the hearing of this matter, some conflicting evidence was given about whether the biting incident had occurred before or after the incident involving the Applicant on 28 September 2013.37 It seems clear however that the biting incident occurred on 22 September 2013.38 I therefore accept the Applicant’s evidence that he was told about the biting incident involving the Client during the course of his shift on 28 September 2013.
[18] Based on the information gleaned from the Client’s file, the Client’s support plan and conversations with Mr Sola and Mr McPherson, the Applicant was aware of the triggers that might cause the Client to behave violently or become agitated. 39 He was aware that the Client had previously punched staff40 and that he had bitten a staff member.41 He was aware that the client was exhibiting “edgy and unsettled behaviour” or to use the Applicant’s description of what he was told, the Client appeared “wired” as if “on speed”.42 Mr McPherson denied using the words “wired” and “on speed” attributed to him by the Applicant.43 However it is unnecessary to resolve the precise words that were used as it seems to me that the message that was given to the Applicant was that the Client was exhibiting edgy unsettled behaviour. The Applicant was aware that he should be wary if the Client had a vacant or spaced out look in his eyes44 and that the Client was not particularly verbal.45
[19] The Applicant did not have any prior experience with the Client to enable him to understand how the Client’s frustration might be exhibited and other nuances. 46 However in addition to the matters above the Applicant had knowledge that persons with an acquired brain injury will exhibit complex and challenging behaviour including acts of violence.47 The Applicant also had direct experience in observing or being subjected to behaviour involving acts of violence.48 He also had very recently received training in the use of restrictive practices.49
[20] To the extent that the Applicant suggested that he was unqualified, inexperienced or ill equipped to deal with the Client the subject of the incident on 28 September 2013 50 that evidence is rejected. It is clear from the above that the Applicant had a sufficient grasp of the Client’s likely behaviour and the triggers which might cause frustration or violent behaviour from a review of the Client’s file, the Client’s support plan and in the discussions with Mr Sola and Mr McPherson. The appropriate response to exhibitions of any complex and challenging behaviour exhibited by the Client was to be determined by reference to the Respondent’s Model of Practice and in particular it’s Operative Policy on Restrictive Practices in relation to which training had been received by him only three weeks earlier.
[21] Mr McPherson gave evidence that before he concluded his shift of duty at the Lawnton facility on 28 September 2013 he had a conversation with the Applicant about how to suggest to the Client that he might go to bed. 51 Mr Macpherson’s evidence was that he told the Applicant that he might suggest to the Client that he go to bed by putting his (the Applicant’s) hands together and cup them against his (the Applicant’s) face and tilting his (the Applicant’s) head to one side, indicating sleep, and then to enquire of the Client whether the Client was ready to go to sleep.52 Mr McPherson said that as another cue to suggest to the Client that he may wish to go to bed, he (Mr McPherson) would start to lock down the facility as an indication that he (Mr McPherson) was preparing to go to bed.53 Whilst the evidence of the Applicant was not precisely the same as that given by Mr McPherson, it contained essentially the same elements of the routine describe Mr McPherson and in that respect was to the same effect. I am satisfied that Mr McPherson conveyed to the Applicant a number of techniques which the Applicant could deploy to suggest to the Client that he might wish to go to bed. None of these techniques involved directing the Client that he must go to bed or apply restrictive practice in aide of getting the Client to bed.
[22] The incident that occurred between the Client and the Applicant was not witnessed by any other staff member as the Applicant was the only staff member on duty at the time occurred. The Applicant gave the following evidence:
Since my only familiarity with [the Client] and his behaviour and routines came primarily from documentation, and knowing [the Client] was equally unfamiliar with me, I decided that it would be best to start his routine shortly after Mr McPherson left, giving [the Client] plenty of time to settle as well as allowing me more time to re-read the client files and prepare for morning routines or any emergency during the night. With this in mind, I began the process described to me by Mr McPherson, being sure not to be loud, expect any response or to position myself in [the Client’s] personal space.
This process was uneventful right up to the point where I had led [the Client] to his doorway, the doorway between his unit and the common area. Since [the Client] was between me and the office, I recognised that I had no easy escape should be become violent so I walked around his in a semicircular path away from his door, slowly enough that he could see what I was doing.
I also made sure that I positioned myself out of [the Client’s] path should he choose to enter his apartment immediately. I then smiled at [the Client] and told him I was tired and going to go to bed. I proceeded to say to him that, if he wanted to go to bed as well, his room was just through the door. I then gestured with an open hand toward the door and allowed my eyes to follow my hand movement, motions intended to be non-threatening and a suggestions rather than a command.
At this point, I was outside of [the Client’s] room, non-threatening, quiet and outside his personal space, without obstructing his path anywhere (EXHIBIT A is a floor plan, detailing [the Client’s] room as shaded space A and the office as shaded space B. The two dots represent [the Client] and I).
As my eyes were diverted, I felt a sharp pain in my face and felt adrenaline surge in my body. I realised quickly that I had been punched in the mouth and I was saying something. The pain and shock caused me to cry out. I do not really know what I said, how loudly or with what tone since I had been punched in the face very forcefully.
Before I was fully aware of what was happening, [the Client] had closed the distance I had allowed (at least one and a half arm’s length) and placed both of his hands on my chest and attempted to unbalance me.
[The Client] appeared to be clearly enraged, bearing his teeth. I immediately remembered that [the Client] was regarded as being most dangerous when he took a person to ground and was capable of inflicting serious injury. I felt as though I had no choice but to fight back in some way to free myself from his grip and avoid the situation escalating any further.
I was legitimately in fear for my life when I realised that [the Client] may not have the executive capacity to know when to stop and I was the only employee currently in the vicinity. It became apparent to me that, in order to preserve my own life and avoid serious injury, I would have to physically defend myself.
At this point, I was scared half out of my wits, concerned about my own safety but I was also conscious or [the Client’s] safety at all times. I did not want to hurt him, but I was concerned about evading any conflict unharmed. Somehow I recognised that I may be able to get him on the ground, perhaps startling him enough to cause him to loosen his grip and giving me and opportunity to escape.
I successfully took [the Client] down with a simple hip-throw, holding him as he fell so as to reduce the impact. He immediately threw his legs up around my right arm and held my shoulder in an arm-lock. This kind of lock is particularly painful and can be used to pull a shoulder out of its socket or even break the humerus. It’s a common move in fighting sports like MMA and jujitsu. I responded by moving around [the Client] and gathered his own arm under his knees, causing him to be immobilised but, hopefully, without causing pain.
When I recognised that [the Client] was immobilised and that I had the situation in hand, I spoke as calmly as I could to him. I told him that I did not wish to hurt him and that I wanted to go away. I told him that he needs to calm down so I can go away. [The Client] visibly calmed and I could feel the tension go out of his muscles. At this point, I released him, got up and began to make my way to the staff room.
[The Client] was on his feet immediately and following close behind me. I asked him to stay back, but he followed me all the way to the office. I closed the door immediately before he could enter the office and locked it. 54
[23] The Applicant also gave oral evidence about the incident, during which he said that he was struck in the face by the Client, that the Client then grabbed his T-shirt, that he was fearful he may be dragged to the ground by the Client, that he used a hip throw to bring the Client to the ground, that whilst on the ground that Client placed the Applicant’s arm in a lock using his legs, that he released himself from the lock by taking the Client’s arm and pulling it around his body then under his knees to the point where the Client was in a similar position to a ball, and once he had extracted himself from the lock he retreated to the office in which he locked himself. 55
[24] The Applicant also gave evidence that in order to execute the hip manoeuvre he was required to move forward into the Client 56 and he accepted that he could have taken a step backwards instead of forwards and thereby release the Client’s grip on the Applicant’s T-shirt.57 The Applicant maintained in his evidence that the manoeuvre he performed on the client to bring the Client to the ground and the subsequent manipulation of the Client’s arm and body to release the Applicant’s arm from the arm lock applied by the Client once on the ground, was the least restrictive practice that he could have applied in the circumstances faced by him.58
[25] Mr Sola gave evidence that he has never had reason to use physical force against the Client as the techniques in which he has been trained by the Respondent had always been sufficient for him to bring a situation under control. 59 Mr Sola also gave evidence about his interaction with the Client’s challenging behaviour as follows:
How long have you been caring for [the client] for?---Probably only eight months.
Have you ever been struck by [the client]?---Yes.
On more than one occasion?---I can only recall one.
What happened on that occasion?---I just referred back to my training skills that was taught to me, and that was it.
Can you just explain to the Deputy President exactly what happened in that situation when [the client] engaged with you? Did he hit you or what?---Yes, he threw a punch and then he grabbed - kind of just got me into a lock kind of thing.
Got you into a - - -?---Into a lock, he just had me by both arms.
THE DEPUTY PRESIDENT: Around your body, grabbed your t-shirt, what did he do?---He had both.
He grabbed your arm?---Each of my wrists.
Your wrists, okay?---Yes.
MR HEATH: What did you do?---I just spoke with [the client], you know, trying to calm him down using my words.
Did that work?---He slowly come around and he was all right after that. 60
. . .
Are you aware of any typical signs that [the client] shows before becoming violent?
---Yes.
What are they?---He starts to pace a lot, he follows staff around a lot.
Right?---You’ve got - invades the personal space as well.
What do you do in those situations?---When he’s escalating?
Yes?---I just give him his space.
You say that you’ve been hit by [the client] before?---Yes.
You understand this case is about Mr Gall was hit by him?---Mm’hm.
And Mr Gall also says that he was grabbed by the shirt by [the client]?---Yes.
With a view to being pulled down. Have you been pulled down by [the client]?
---Yes.
What did you do in that situation?---Again, I just used my words to try and calm him down and I just reassured him that, you know, everything would be all right.
Did that work?---Yes.
So if [the client] went and grabbed you by the shirt with a view to pulling you down, what would you do?---I would try to deflect him. You know, I wouldn’t restrain him like that.
THE DEPUTY PRESIDENT: Deflect him, meaning what?---So I’ve just, you know, trying to deflect and using just an open hand to - - -
Push away or push down?---Yes, push down, not grabbing on him. 61
[26] Mr McPherson gave evidence that he had been struck by the Client on previous occasions and that on those occasions he had not retaliated. He said that he would either retreat or take the Client by the wrists to prevent him from striking him and would use a reassuring voice to calm him down and that this would be effective to settle the Client down. 62 Mr McPherson elaborated during his oral evidence as follows:
Does [the client] like being told what to do?---No. If he doesn’t get his own way or being told something to do that he doesn’t like, no.
Did you tell Mr Gall that was one of the triggers that - - -?---Yes.
Have you ever been struck by [the client]?---Yes.
On how many occasions has that happened?---I think once or twice.
Let’s talk about the first one then. What happened on that occasion and what did you do?---A client went into our manager’s office. [The client] did not like that so [the client] proceeded to punch him in the face.
Punch who?---The client, the other client.
Right?---I then stepped in. [The client] started to punch me so I just placed a hold of [the client’s] wrists and started talking to him in a calm manner, “It’s okay, [the client],” and redirected him away from the client.
How many times did he hit you?---Probably three or four. Didn’t really hurt.
So how did you manage to restrain him in that situation?---I wouldn’t restrain him. I’d say more misdirect - redirect him.
So how did you do that exactly?---Just put my hands on his wrists.
I see?---Nothing too hard to stop him. Like, he was still punching me at the time.
You said one or two occasions?---Yes. That’s the only one I can remember. I think he’s done it before but nothing springs to mind.
Are you aware of any situation where [the client] has attacked a worker when they’ve been on their own in the facility?---Yes.
When did that happen?---I was in the office. A young lady was in the kitchen preparing lunch for [the client] and [the client] had punched her in the throat.
In this case Mr Gall says that [the client] hit him in the face and then grabbed him on the shirt with a view to pulling him down?---Yes.
Is pulling somebody down something that [the client] tries to do?---Yes. He was advised of this.
He was advised. What would you do if [the client] tried to grab you on the shirt and pull you down?---Go with him. If he wants to pull me onto the ground that’s fine.
You wouldn’t be - - -?---Because he’s got hold of me and if he’s pulled me to the ground he can’t really do any damage to me.
What would you do to get out of that situation?---Just talk to him in a calm voice.
Not concerned about being bitten by him?---No, I wouldn’t be that close to him.
I think you may have dealt with this, but you say in the incident where you were struck that started out as [the client] attacking another client?---Yes.
So what did you do to intervene between those clients? You got in there, did you?---Yes, I did. I got in between.
Is that how you’ve been trained to do things?---Yes.
You were trained when you started with the organisation two years ago?---Yes.
Have you had training in how to deal with the clients since?---No.
Did you attend any training in September 2013?---I think so, yes. I can’t remember. I’ve had so many training courses through Synapse. It gets pretty busy.
The training you’ve received, that encompasses how to avoid having a physical confrontation with a client?---How to avoid and how to deal with it when it happens.
What are you trained to do once it does happen, once you’re hit or grabbed?---The best bet is to redirect and use any words that are appropriate for the client, like, any key words that they like.
Are there any key words that would help out with [the client]?---Mainly just, “It’s okay, it’s okay,” just, “It’s all good,” just reassure him. 63
[27] During his oral evidence the Applicant seemed to accept that it might have been more appropriate for him to disengage the grip on his T-shirt by pushing the Client’s hands away 64, that his reaction to the Client’s strike and grip of his T-shirt was “instinctual”65, that breaking the Client’s grip on his T-shirt by a push away of the Client’s hands was a better option66 and that performing the hip manoeuvre on the Client resulted in the Client countering with an arm lock and thereby escalating the situation.67
[28] The Applicant also accepted that he had panicked when the Client became aggressive towards him and that in his panic, his judgement affected the method that he chose to disengage with the client. The Applicant’s evidence in this regard was as follows:
THE DEPUTY PRESIDENT: Mr Gall, can I just put a couple of propositions to you? You indicated earlier that you had a yellow belt in taekwondo?---Yes.
There are a couple of basic manoeuvres that you are familiar with about blocking?
---Yes.
Blocking high; blocking low?---Yes.
Were your hands by your side?---I had one hand by my side. The other hand was outstretched.
A high block from a low position would have released the grip?---Yes, if – the punch you mean, sorry?
Just a block; not a punch, just a block?---I’m sorry, do you mean when he was punching me?
No; no, when he was grabbing you; hand by the side; low block up would have released the grip?---Yes, probably.
So getting back to Mr Heath’s question in terms of the least restrictive method, there was another method which you have just acknowledged which was probably less restrictive was a block?---Yes, but I think - - -
No, can you just hear me out?---Sorry; yes, sorry.
Do you accept that that was possible?---Yes, certainly.
Can I put this to you: because of his aggression and because you say you were in fear for your life, was it likely you were panicking?---Yes. At the point when I was being grabbed, yes, I believe there was an element of panic to that.
And that affected the judgment you made?---Absolutely.
And that likely affected the method you chose?---Yes, I believe so. I do believe that that would have done so. Also, if you don’t mind me adding, the time between me obtaining my yellow belt and this particular incident occurring was fairly significant. I hadn’t been training actively for a year or so. 68
[29] The Applicant also gave evidence that had he known that the Client was capable of administering an arm lock on him, the Applicant would “probably would have just taken [his] chances by pushing [the Client], to be honest”. 69 This is suggestive of an intention to overpower the Client and being taken by surprise by the Client’s arm lock manoeuvre rather than an attempt by the Applicant to use the least restrictive method to calm the Client.
[30] I do not accept the evidence of the Applicant that the method he chose to disengage with the Client was the least restrictive method available to him in the circumstances. As the evidence above, and that given by Mr Sola and Mr McPherson demonstrates, there were other methods far less restrictive than that deployed by the Applicant. The Applicant could have, but did not move backwards as an attempt to release the Client’s grip on his T-shirt; and he could have but did not use calming language 70 as he had been trained to do. Instead he moved forward and deployed a hip throw, which instead of calming the Client down, escalated the situation thus requiring a further restrictive method to be deployed in order that the Applicant could disengage. All of this was contrary to the training the Applicant received and contrary to the Respondent’s policy on the use of restrictive practices. All of this was avoidable had the Applicant deployed the methods conveyed to him through his training and through the briefing that he had received from Mr Sola and Mr McPherson.
The incident reports
[31] The Applicant gave the following evidence about what he did once he had disentangled himself from the Client’s arm lock:
[The Client] was on his feet immediately and following close behind me. I asked him to stay back, but he followed me all the way to the office. I closed the door immediately before he could enter the office and locked it.
At this point I was exhausted, shaking and shocked. I tried to contemplate what I could possibly do; I was in such a state of shock that I could not even use my phone well enough to fine on-call’s number.
Eventually I called on-call and attempted to make an accurate account of the incident. I told Mr Seneviratne that I had been punched in the face and that I was bleeding. I was asked how bad it was so I checked in the mirror when I noticed that, at some point, I had also been hit in the forehead and nose. I mentioned this detail to Mr Seneviratne, telling him that I did not remember it happening as I was still hazy on everything after the punch to the face at that point. I answered his questions as best as I could manage, but I was in a complete state of shock.
Since I was used to cuts, scrapes and getting a little bit banged up from my previous job as a mechanic, I figured I would be fine without medical attention, thus I informed Mr Seneviratne I did not need to see a doctor. I was instructed to fill out the incident report. I went to get the form but found there were not enough spare forms in the folder. I attempted to make copied but I was too scared to turn on any lights in case [the Client] was up and about. I did manage to make copies of some forms, but I heard [the Client] walking around so I rushed back to the staff room in a panic.
I then found the OH&S forms had only enough copies to make one report. I knew that two were required but I was too scared that I would be cornered by [the Client] in the main office, where the printer was, to make more copies. I then continued my shift, but told Mr Seneviratne that if [the Client] is atill wandering the facility, I would like to be relieved by another employee in the interest of my own safety and wellbeing. 71
[32] Mr Seneviratne, the person to whom the Applicant made the initial report of the incident, was not called by the Respondent to give evidence. The Respondent explained that Mr Seneviratne was no longer in the employ of the Respondent and that he was unable to be contacted in order for arrangements to be made for him to give evidence. 72 A written record of Mr Seneviratne’s recollection of the incident was tendered in evidence without objection.73 The written record was prepared several days after the incident.74 The Applicant was cross-examined about discrepancies between his account of what he had told Mr Seneviratne and the account set out in the written record prepared by Mr Seneviratne. Ultimately, nothing material turns on the discrepancies and I am prepared to assume that the discrepancies arise through a combination of the shock that doubtless the Applicant would have been experiencing immediately following the incident and the fact that Mr Seneviratne’s account was prepared several days after the event, and was not contemporaneous.
[33] The Applicant completed a behaviour incident form 75 shortly after the incident. Relevantly the Applicant reported the following:
LSW, after taking the first punch without retaliation, took [the client] to ground & immobilised [the client] limbs, without using locks, then I said to [the client] to ‘calm down’ & ‘stop’. When [the client] seemed to relax, LSW and then got up quickly & moved away. [The client] continued to advance. LSW locked office. 76
[34] The Applicant completed a diary entry as follows: 77
[The client] following staff around & generally behaving at baseline. Another LSW mention that [the client’] wide eyes meant he was ‘wired’ & could [not decipherable] like he was on speed. [The client] seemed to be in a good mood, laughing & generally being social. 2100 other staff left & LSW was advised on how to indicate to [the client] that it was time for bed. LSW did this &, when LSW indicated towards [the client’s] door & said “would you like to go to bed now?”, LSW was struck in his face then physically & violently attacked by [the client]. LSW, upon subduing [the client], retreated to the staff room. 78
[35] The Applicant also completed a workplace health and safety incident report. 79 In that report the Applicant made the following notation:
Client punched LSW in the face then proceeded to advance on LSW as if to attack again. When client attacked a game, Alan NSW took client to ground then restrained client from striking. LUSW asked client to ‘calm down’ & ‘stop’. When client relaxed, LSW disengaged. Client pursued. On-call notified. First aid administered to self (split lip). 80
[36] A number of observations may be made about these records. First, they are in and of themselves an incomplete record of whole of the altercation between the Applicant and the Client. The evidence given by the Applicant about the altercation is significantly more expansive than the three notes he created after the incident. Secondly, the record in the first note reproduced above suggesting the Applicant took the client to the ground and immobilised him without using locks is internally inconsistent and inconsistent with the evidence of the Applicant given before me. 81 Thirdly, the reference to “upon subduing [the client]” in the second note, and to “then restrained client from striking” in the third note is inconsistent with the assertion that the Applicant immobilised [the client’s] limbs without using locks as set out in the first note.
[37] Fourthly, there is no suggestion in any of the notes that the Applicant feared for his life as asserted in his evidence. 82 Fifthly, there is no mention in any of the notes that the Client grabbed the Applicant’s T-shirt. Sixthly, the third note suggests that the Applicant restrained the client until the client relaxed and only at that time did the Applicant disengage, thus the record prepared by the Applicant suggests the restraint continuing for a period until the Client relaxed. Finally, in a record of events prepared by the Applicant on or about 21 November 2013, the Applicant recounts that he “responded by moving around [the client] and gathering his own arm under his knees, causing him to be immobilised”.83 It is difficult to conceptualise how the Client could be immobilised without using “locks”.
[38] It seems to me the Applicant was trying to minimise the degree of restraint that he used. I am satisfied that the Applicant used a sufficient enough degree of restraint so as to immobilise the client. The use of such a degree of restraint is in my view inconsistent with the Respondent’s policy on restrictive practices. The methods used by the Applicant were not the least restrictive.
[39] I am therefore satisfied on the evidence that the Applicant engaged in the course of conduct with the Client which was inconsistent with and contrary to the Respondent’s policy on restrictive practices and contrary to the obligation under the Applicant’s employment agreement to comply with the policy. I am also satisfied the Applicant had other less restrictive options open to him to disengage with and calm the Client.
[40] Finally, I do not accept the Applicant’s evidence that he was in fear for his life and therefore was forced to physically defend himself. 84First, as I have already noted, the notes prepared by the Applicant do not record that he felt the fear now alleged. This was a material fact that would warrant some mention in at least one of his notes. Secondly, the Applicant did not mention this fear to Mr Seneviratne, the person to whom he first reported the incident. Again this was a material fact that explained the incident but was not mentioned. Thirdly, the Applicant also completed his shift despite prompting from Mr Seneviratne that he could be relieved.85 The Applicant’s reporting of the incident whether in writing or orally and his behaviour in staying on shift are all inconsistent with the fear alleged.
The investigation
[41] Mr Glen Farlow is the National Development Manager for the Respondent. 86 As part of Mr Farlow’s role with the Respondent he is required to conduct investigations into incidents involving allegations of misconduct by Lifestyle Support Workers employed by the Respondent.87 Mr Farlow was informed about the incident that occurred on 28 September 2014 by the human resources staff of the Respondent and he subsequently commenced an investigation into the incident.88 Mr Farlow gave the following summary of the steps he took during the investigation and the reasons for his conclusions:
The First step I took was to collect information regarding the incident from the applicant and other staff members, including the coordination manager.
I also ensured that the applicant was aware of the respondent’s counselling program.
I was not aware of the specific clients features and behavioural triggers prior to conducting my investigation.
After performing my investigation, I formed the view that a suitable skilled support person ought to have removed themselves from the situation which arose on 28 September 2013, without physical force being applied to the client.
A suitably skilled support person would have sought to avoid the situation entirely, by recognising signs of escalation and by employing an exit strategy.
I doubted the veracity of the applicant’s account of the events. During the course of my investigation, the applicant was not able to provide a consistent account of the events immediately prior to, or at the time, of the incident. 89
[42] During his oral evidence Mr Farlow expanded on his investigation into the incident as follows:
I won’t go any further with that. Can you explain to his Honour how you became to be involved in the matter involving Mr Gall?---Yes. The investigation initially - they typically come about because they are escalated by a senior manager of the organisation, either the accommodation manager or the human resources manager. Beyond a critical incident, that would then handed over to myself, essentially. Essentially, the bare minimum details which normally involve some case notes from the communication book, and sometimes it’s just an email about the situation, and then I identify who is involved, I formulate communications with those people face to face as the first option and I work through and contact anyone at all that I can speak with in regards to that investigation.
Let’s break that down. In this particular case, did you recall seeing this document? Do you recognise that?---Yes, I do. That’s an entry from the communications log.
That’s one of the things you looked at?---Yes.
Did you look at this document?---Yes, I did.
What is that?---It’s a behaviour incident form standard from our policies and procedures.
Was there another document that was part of that, do you remember?---There should have been.
There should have been? We’re just turning it up?---What else was there?
Do you remember seeing this document?---Yes. The regular workplace health and safety incident form.
So you started from that?---Yes.
Then what did you do after getting hold of that material?---The first point of call would be to contact the people directly involved, and that’s normally - sorry, who first received that information, that’s normally either on-call or a senior manager. I believe - I actually can’t remember back exactly who brought it to my attention - but I believe the initial information I was given was from Megan Calderbank. I also then spoke with - - -
Just to give the witness DN4, which was exhibited through Mr McCraw, that document, the document you created. That’s your discussion with Ms Calderbank?---It was put together from my discussion, yes.
So you prepared that document?---I believe it was prepared for me.
Who prepared it for you?---David McCraw.
He was part of the investigation team?---Yes, he was, so in that space often he would - and a role of HR in general is to support me logistically in that manner, so that will involve taking notes, collating emails, preparing documentation because (indistinct) hat is one hat that I have in the organisation.
So he was making the notes?---Yes.
Just go to the second page of that DN4 document?---Yes.
It’s recorded there that there’s a conversation you have with Ms Calderbank, apparently, about Mr Gall and Jim and jiu jitsu moves?---Yes.
Can you recall what the effect of that conversation was?---That initially came about because the initial information that I received in conducting the investigation was a martial arts and/or jiu jitsu manoeuvre was performed on the client.
On the client by Mr Gall?---Yes.
I see. So you were looking into this issue, were you?---I wanted to seek clarification to primarily: (a) some sort of martial arts move was performed on our client, which is totally against our policies and procedures, but also I was interested in whether there was an actual form of martial art, because that then shows there’s other implications if formal martial arts are being performed on our clients.
But this is not what your note seems to say. You note seems to be about Mr Gall if [the client] knew jiu jitsu moves. Do you see that’s about the fourth dot point down?
---That came about because there was information, I believe, that the client had known some form of martial arts due to the way he had engaged with the support worker, which was never justified.
This is something that’s been reported to you by Ms Calderbank based upon conversations she had with Mr Gall?---That’s correct.
At this stage, you haven’t yet spoken to Mr Gall directly about this?---That’s correct.
Why didn’t you just go directly to Mr Gall instead of having this background conversation with Ms Calderbank?---Generally, as with most work that I would undertaken, for instance, putting a report together, I would get as much background information on what I’m talking about, on the situation that occurred and, you know, essentially narrow it down and then we speak to the people on the ground, make sure that you have some baseline level of understanding before you go in, and that lets you prepare questions as well and makes sure you’re (indistinct) so that you’re getting more pertinent information.
This conversation with Ms Calderbank seems to be on 9 October. Is that right?
---Yes, that’s correct.
What is the next thing you did?---I believe I spoke with - followed-up with Jason Serventari. He was on-call at that stage.
Did you see an email from Jason Serventari?---Yes, I did.
Can I show you something?---That was the contact that I had with him, I believe.
It’s emailed from Mr Serventari of 1 October, your Honour.
THE DEPUTY PRESIDENT: Yes. Thank you.
MR HEATH: Is that the email you saw from Mr Serventari?---Yes, it is.
That also formed part of your investigation?---It did.
In my Mr McCraw’s statement, can you just, then, go to DN5. You had DN4 open there, just turn over the page?---Sorry.
Is that the next thing you did?---Yes, on the 9th.
No, I’m looking at DN5, that document there?---Yes.
It’s dated 11 October?---Yes, that is correct.
When did this interview happen?---It would have been on 11 October.
Where did it take place?---At the SYNAPSE West End office.
Who was there?---Myself, Dave McCraw and Matt Gall.
Was Mr Gall offered a support person to that meeting?---He was, he declined.
These notes are Mr McCraw’s notes. Is that right?---Yes, that’s correct.
Did you send these notes to Mr Gall after the meeting?---I did, yes.
You did or Mr McCraw did?---I did.
Did you ask him to confirm the notes were correct?---Yes, that’s right. Our standard process is - I try to avoid taking minutes in these meetings, it allows me to focus more on the interview and the questions, and in this instance David McCraw typed them up and emailed them to me, I forwarded them to have that central point of contact to Matthew Gall. The standard process is that we would always seek confirmation of the content of minutes to ensure consistency, and he corresponded back and said that they were accurate to the meeting.
You got an email back from Mr Gall, did you?---Yes, I believe so.
Mr Gall was suspended shortly after the incident, wasn’t he?---Yes.
Was there at any time that Mr Gall’s suspension was lifted?---Yes, there was.
When did that happen?---That happened on - I can’t quite remember the date - it must have been around the 18th or 19th. I actually can’t remember right off the top of my head, but it was suspended.
The suspension was suspended?---The suspension was suspended? The suspension was lifted. I don’t - - -
Who did that?---That was under the direction of Lisa Treston, our operations manager.
Do you have the authority to do that?---Not at all. So I did that under her direction.
Did you communicate that to Mr Gall?---I did.
Did you receive this email from Mr Gall?---Yes, I did.
I don’t think we have one for his Honour at the moment.
THE DEPUTY PRESIDENT: I have that. This is the Gmail?
MR HEATH: Yes. Mr Gall seems to think at this stage the suspension has been lifted as at 11 November?---Yes.
That was on the basis of the decision made by Ms Treston, you’re saying?---That’s correct.
Did that change?---It did.
When?---When we - later on when we ended up receiving the show cause notice from Mr Gall.
Mr Gall’s response to the show cause notice?---That’s correct.
The show cause letter was sent out on the 14th, wasn’t it?---I believe so.
Do you remember when you got his response to the show cause notice?---It would have been - it was after the correspondence that we had spoke about, the Gmail reply. It would have been around the 20th, a couple of days later.
After this email was sent on the 18th?---That’s correct.
On the basis of the response to the show cause notice, what happened?---We subsequently terminated his employment.
Why was that decision taken? Because, here, on 11 November, Ms Treston had apparently lifted the suspension?---We had a range of concerns resulting from the investigation, first and foremost, the use of a throw, formal martial art or not, was completely unacceptable. It’s not within our disability service standards, it doesn’t meet any of the policies and procedures of SYNAPSE and nor does it uphold our values.
But you knew all that on 11 November, though, didn’t you?---We did.
So what changed?---Staff are like family at SYNAPSE, we invest, you know, a lot of time and money but also a lot of energy and they end up, you know, forming relationships and rapport with our clients. We invest a lot in the staff that we work with and a part of the value system of SYNAPSE management is to try and seek a pathway of those staff through the organisation wherever possible. We will seek to professional develop, to performance manage and to retrain areas of, you know, any perceived deficit of any staff member. It was the initial plan that would be undertaken with Mr Gall.
My question was: why did that change?---It changed because when we received the additional information from the show cause it created - we had some apprehension, like I mentioned before. There were certainly some inconsistencies in the reports. The show cause introduced a whole range of new information, introducing a whole range of new inconsistencies. It really pushed the doubt that we had and the apprehensions to a level that we weren’t comfortable with, and in addition to that the total lack of insight into the fact that what he had done in throwing the client was unacceptable.
So that turned it?---Yes, it did. 90
[43] Mr David McCraw a human resources adviser with the Respondent 91 attended some of the interviews that were conducted during the investigation. His evidence largely corroborates the evidence given by Mr Farlow. In addition Mr McCraw appended to his witness statement notes of interviews he prepared and in which he participated during the course of the investigation.92
[44] The Applicant gave evidence about the investigation as well as explaining the incomplete nature of the reports made by him immediately after the incident. His evidence was as follows:
On 11 October 2013, I had a meeting with Mr David McCraw, Human Resources Advisor, as well as Mr Glen Farlow, National Development Manager. I was questioned by Mr Farlow as to the incident on 28 September 2013, and informed I would be placed on Administrative Suspension whilst an investigation was underway.
On 11 November 2013, I received a text message from Mr Farlow informing me that the investigation had concluded, and that my suspension had come to an end. I was also informed I would be required to attend further training when I returned to work.
However, I subsequently received a letter dated 14 November 2013 from Ms Jennifer Cullen, CEO of Synapse, in regards to the incident on 28 September 2013 and the Abuse Prevention Response Investigation Outcome (EXHIBIT B). She brought attention to my employment contract, the Synapse Model of Practice Policy (EXHIBIT C) as well as the Synapse Operational Policies in regards to restrictive practices (EXHIBIT D).
Ms Cullen outlines that as per section 5 (Performance) of my employment contract, I was to carry out my duties lawfully and with proper decorum and ensure I comply with all policies and legislative requirements. She reiterated that when performing duties, I was to pay “appropriate regard to the culture and objects of the Employer and the protection of the environment”.
Ms Cullen also outlined specific Association policies, including that the employees ensure they use the least restrictive way of ensuring the safety of the client and others, and compliance with legislative provisions on the use of restrictive practices.
Ms Cullen states in her letter that I had clearly failed to read and contemplate the information available on [the Client]. I dispute this allegation; I was constantly aware of my surroundings, how I behaved to ensure he remained calm, and how to best resolve the situation while preventing harm from coming to either of us. She further alleged that I did not carry out and perform my duties in accordance with legislative provisions, including those in the Disability Services Act 2006 (QLD).
After outlining the physical restraint I had used on the client, Ms Cullen stated this was a “restrictive practice”; her letter details that I had expressed an intention to use physical restraint, and had acted on that intention. She stated that I failed to use non-aversive techniques and that my language in recording “the critical incident” was inappropriate. Despite having been physically assaulted by a client, Ms Cullen stated that my “level of understanding of our Model of Support is so deficient” that my conduct “as a Lifestyle Support Worker will continue to place out clients as risk.”
I dispute these statements. I was forced to use physical restraint to prevent further harm coming to myself, or [the Client]. I was forced into a position to act instinctively to prevent the situation escalating beyond my control.
In recording the incident, I did so in a state of complete shock and distress. While I endeavoured to record the incident as soon as I could, this meant doing so while still mentally processing what had just occurred. I was not in the correct state of mind to give a clear and detailed report, but I was aware I needed to act as soon as possible.
I am shocked that I have been accused of placing clients at risk, when I strived to bring no harm to [the Client]. Despite leaving the incident injured and in a state of severe distress, there has been little regard to my own wellbeing. I have instead been accused of placing clients at risk; a statement I find both false and deplorable.
Ms Cullen concluded the letter by requesting that I return my response by 5:00 PM Thursday 21 November 2013. I subsequently returned a letter (EXHIBIT E) explaining my response. I stated that there had been factual errors in the report issued by Mr Seneviratne, and the report lacked detail; I suspect this may have been due to the extreme shock of the event, and a lack of time to process what had just occurred. I outlined the incident on 28 September 2013 (as stated above), emphasising that I consistently acted quietly and non-threateningly. I concluded that I was acting purely out of self-defence ad while doing so continued to hold the client’s safety as paramount.
On 5 December 2013, I received further correspondence from Ms Cullen acknowledging that she had received my letter, and announcing that the decision had been made to terminate by employment (EXHIBIT F). Attached were the terms of my termination.
Immediately prior to my termination, I was called into a meeting with Mr McCraw and Ms Lisa Treston. They outlined the incident and confirmed that the decision had been made to terminate my employment, pursuant to the letter I had received. I asked them what they would have done in the situation, and if what I did was wrong, then what possible course of action I could have taken to render the situation right. They could not give me an answer. Ms Treston responded that she would have resolved the situation non-physically. I questioned to remember that the individual was enraged, physically pulling me down after punching me in the face. I received no further answers from Mr McCraw or Ms Treston; they confirmed my termination and ended the meeting. 93
[45] By letter dated 14 November 2013, allegations arising from the incident and the investigation thereof were put to the Applicant. 94 The letter advised the Applicant that he should provide his response by 21 November 2013. The Applicant provided a letter in reply constituting his further response to the allegations.95 That letter of response was largely reproduced in the Applicant’s witness statement filed in these proceedings.
[46] From the evidence highlighted above it is apparent that the Applicant was suspended pending an investigation, then advised the suspension was lifted, and then asked to show cause in light of the allegations and investigation findings why his employment should not be terminated. I accept that this chain of events was unfortunate in that it gave the Applicant cause to believe that his conduct during the incident of 28 September 2014 had been considered and that he had been cleared of any wrongdoing. Mr Farlow explained the reason that this had occurred as follows:
THE DEPUTY PRESIDENT: Before you do, Mr Pinchen. Mr Farlow, can you tell me what the rationale was for ceasing the suspension on or about 11 November?---Again, under the direction of - - -
I understand the direction, but did Ms Treston tell what direction that was?---The basic view was to look at whatever way that we could support the employee to get them back and retrained and back involved with the organisation, I think it was relatively as simple as that.
But the investigation was continuing?---That’s correct. I think to compliment that, when we talk about lifting the suspension that in no way means going back to - - -
No, I understand there’s supposed to be some retraining?---There would never be shifts guaranteed off that at all. There would be a level of training, there would be performance management, there would be KPIs that would need to be met off duty before he ever went to meet with that client again, so there would be several benchmarks put in place. We would then typically, almost like a - what’s the word - we’d have a period of, you know, three months or whatever probationary period that they would undertake. We would set a timeframe, we would reassess, we would meet with the staff member again and then we would address any additional shortcomings in that space, and, you know, by that time if we were not satisfied with what had happened we would subsequently terminate, so that would be the proposition, that they would need to meet performance benchmarks. 96
[47] I accept the explanation given, but the process adopted was a long way short of best practice. The fact remains that during the investigation process the Applicant was given the impression that he would undergo retraining arising from the incident and no more. That impression turned out to be false. Such a process should be avoided and is unfair to the person the subject of investigation.
[48] The evidence establishes that in conducting the investigation, Mr Farlow had regard to all relevant material that was available to him, including the Applicant’s version of events. The notes prepared by Mr McCraw record the Applicant’s version of events given during the interview on 11 October 2013. 97 These notes were provided to the Applicant by email98 and Mr McCraw gave evidence, which I accept, that the Applicant did not communicate with him disputing the accuracy of the notes99 although I note that the Applicant said in his evidence that he did not have a chance to make a comment on whether he agreed with everything in the notes.100 There was some dispute about whether the Applicant has confirmed the accuracy of the notes.101
[49] I need not resolve this discrepancy in the evidence as I have found it unnecessary to rely upon the content of the note to determine what had happened during the incident of 28 September 2013. Further I am satisfied the notes are sufficiently accurate for the purpose of enabling the Respondent to have assessed the Applicant’s conduct. It is sufficient for present purposes to observe that the interview on 11 October 2013 was an opportunity for the Applicant to present his version of events to the Respondent. Moreover as is apparent from the cross examination of the Applicant about the notes, such differences as might exist between the Applicant’s actual version of events and those recorded in the notes are more about expression, use of particular words, emphasis, the summary nature of the notes and some omissions rather than a serious dispute about the substance recorded. 102
[50] The evidence also establishes that full details of the allegations made against the Applicant and which ultimately found the reason for the dismissal were put to the Applicant in the show cause letter dated 14 November 2013. 103 The letter also set out that the Applicant had given differing versions of the incident104 and set out the conclusions about the factual matters that arose from the investigation.105 The letter also identifies the relevant provisions of the employment agreement and the relevant policies which are alleged to have been contravened by the Applicant as found by the investigation.106 The letter reminds the Applicant that he had recently received training in the use of restrictive practices on 3 September 2013107 and sets out clearly the concerns that the Respondent has about the Applicant’s conduct and his ability to continue in employment as a Lifestyle Support Worker.108 Finally the letter gives the Applicant an opportunity to provide a written response to the matters alleged and the concerns expressed in the letter by the Respondent.109
[51] The Applicant provided a response to the letter 110 and as I have indicated earlier the response largely replicates the witness statement account given by the Applicant in these proceedings.
Termination of employment
[52] It is uncontroversial that the Applicant attended a meeting with Mr McCraw and Ms Treston on 5 December 2013 during which his employment with the Respondent was terminated with immediate effect. The termination of the Applicant’s employment was confirmed by letter dated 5 December 2013. 111
[53] The Applicant gave the following evidence about the meeting on 5 December 2013:
Immediately prior to my termination, I was called into a meeting with Mr McCraw and Ms Lisa Treston. They outlined the incident and confirmed that the decision had been made to terminate my employment, pursuant to the letter I had received. I asked them what they would have done in the situation, and if what I did was wrong, then what possible course of action I could have taken to render the situation right. They could not give me an answer. Ms Treston responded that she would have resolved the situation non-physically. I questioned to remember that the individual was enraged, physically pulling me down after punching me in the face. I received no further answers from Mr McCraw or Ms Treston; they confirmed my termination and ended the meeting. 112
[54] Ms Treston gave the following evidence about the meeting on 5 December 2013 and in particular the reasoning for ultimately dismissing the applicant from his employment:
In the course of my discussions with the applicant, however, the applicant demonstrated no insight into his actions, into the error that he had made and into how he might have prevented the incident from occurring.
He demonstrated a disdain for the specific client [the Client], and did not appropriately appreciate his sensitivities.
Having regard to the briefing provided by Mr McCraw, my discussions with the Coordinators any my correspondence with the applicant, it was clear that there was no way forward in his employment, in circumstances where he would not acknowledge wrongdoing and did not demonstrate appropriate self-awareness.
There were also inconsistencies in the applicant’s descriptions of the incident which emerged in the abuse prevention response investigation and in my correspondence and discussions with him.
Another employee was involved in an incident with [the Client], wherein his eye brow was bitten.
I was not the primary employee who investigated that incident, although in that case, formal investigations conducted by the respondent revealed that the employee had demonstrated appropriate self-awareness and insight into his actions following that incident.
The employee recognised that the client likely escalated in response to the manner in which the employee had engaged with the client. The employee was willing to undertake additional training and to move forward toward preventing future occurrences. 113
[55] Ms Treston elaborated on this point during her oral evidence as follows:
THE DEPUTY PRESIDENT: Ms Treston, did Mr Gall ask you or the other person at the meeting what you would have done in his circumstances or something to that effect?---Something to that effect, yes.
What do you remember?---Well, I remember trying to be generally supportive of Mr Gall in the sense that it is difficult for someone who is dismissed and going into a situation where they are unemployed. However, through a lengthy process of consultation with the accommodation manager and team we investigated whether returning was a possibility and the reviewing the various comments and the length of employment that Mr Gall had experienced with us and also the availability through funding of being able to put Mr Gall in a traineeship or something or like that to enable him to have further training - we don’t have a lot of money to enable that to happen. So then we looked at where could he get supervision? The only place that he could get supervision was in the transitional facility, which was obviously not going to be appropriate because it appeared that he had interactions with Mr Saul. That was a very slim opportunity and what became known after we assessed all those options is that there was no opportunity for retraining that we could reasonably offer and that his consistent language did not reflect - after two years his language did not reflect an understanding of our model of support and so therefore we determined that it wasn’t possible to - it wasn’t possible to offer him retraining in a viable way and therefore his employment would be terminated. It revolved around the lack of insight, that he had been with us for two years and been involved with the organisation for two years and had participated in team meetings for models of support and understood our language but that was never reflected back in any way that we could move forward. So in that meeting with him that was my mindset going into it and did he say specifically what course of action should I have taken? Probably during the course of that in the sense of retraining that was discussed. 114
. . .
I’m asking what did you rely upon?---Well, the written information, verbal discussions with people with understanding of the client. I relied on evidence from our community adviser. The investigator did express a concern about the language being utilised. The concern was that, yes, we concede that in the moment and in the event people can have a view of what occurred that might alter under the full light of day but the language being realised and the reflection on the event that was occurring a week after it was a concern. It was of significant concern and, yes, it concerned all those who were involved.
That leads to my next question. You were asked a question about Mr Pinchen about the reasons for Mr Gall’s termination?---Yes.
Your reference was that it was not just the assault?---No.
What was the other reason?---Lack of insight so that we could - that he could practice our model of support and the other issues are that without that insight he poses a risk to himself, he poses a risk to the clients. He poses a risk to other workers and to the reputation of SYNAPSE because there’s any number of things - if he doesn’t haven’t the insight we can’t believe that he will be safe in the space going forward.
Is it possible then that Mr Gall may not have been terminated even if he had perpetrated the assault if he had shown insight into his conduct?---Retraining would have been considered with more insight. Unfortunately the amount of funding that we get to do much of anything doesn’t leave much room or margin for us to retrain. So we have to be very careful about risk and the expense in relation to training.
My question is if he had shown insight, would you have sacked him?---No, I don’t believe so, unless - it would have made a difference. 115
[56] It seems clear from the above evidence that, notwithstanding the seriousness with which the Respondent regarded the Applicant’s conduct, it was likely that the Applicant would not have been dismissed from his employment had he acknowledged that he had acted inappropriately, or to put it another way, had he shown sufficient insight to understand that the methods he deployed was not the least restrictive method available to him, and that some of his actions during the incident contributed to an exacerbation of that incident to the point where the Applicant had to immobilise the Client.
Consideration and application of the statutory framework
Protection from Unfair Dismissal
[57] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of his dismissal, protected from unfair dismissal under the Act.
[58] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[59] There is no dispute, and I am satisfied, the Applicant was, on 5 November 2014, protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
[60] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; 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.
[61] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I indicated earlier in these reasons, the Small Business Fair Dismissal Code did not apply to the Respondent and that the dismissal of the Applicant was not for reasons of redundancy.
Harsh, unjust or unreasonable
[62] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
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.
[63] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 116
[64] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne v Australian Airlines Ltd 117by McHugh and Gummow JJ as follows:
. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 118
[65] Ultimately however it is the matters set out in s.387 of the Act to which regard must be had.
[66] The substance of the Applicant’s argument that his dismissal was harsh, unjust or unreasonable is summarised below:
● The Applicant’s evidence should be preferred over that given by the Respondent and in consequence on the Applicant’s evidence the incident involving the client did not amount to an assault or in any event was self defence against an unprovoked assault by the Client on the Applicant;
● The Applicant had a real and reasonable fear for his life or grievous bodily harm and he responded to the assault by the Client accordingly;
● The Applicant dealt with the Client in accordance with the instructions given to him by his colleagues, he planned an exit strategy and could not have done any more to de-escalate the situation as suggested by the Respondent in the circumstances faced by the Applicant;
● The Applicant maintains that his conduct towards the client was not incorrect and was appropriate for the circumstances faced by him;
● The Applicant could not have anticipated the assault by the Client because the Client did not exhibit any known trigger before striking the Applicant;
● Contrary to the Respondent’s assertion, the Applicant showed sufficient insight to contemplate that the conduct of the Client during the time of the incident was not within the scope of that which could reasonably be expected;
● The Applicant’s response to the assault upon him was the least restrictive practice possible in the circumstances of the incident and was therefore not a failure to carry out his duties in accordance with the contract of employment or a breach of the Respondent’s policy. This was because the conduct engaged in by the Applicant was necessary to ensure his safety and that of the Client;
● Such training as was provided to the Applicant was insufficient or ineffective to enable the Applicant to deal with the Client’s assault upon him in any way other than that which the Applicant did;
● The Applicant did not receive any training about how one is to disengage if grabbed and pulled to the ground by a client;
● The Applicant was alone on duty during the assault upon him and this reduced the options available to him, apart from the briefing from colleagues and the notes in the Client’s file and care plan, the Applicant was unfamiliar with the Client;
● Contrary to the Respondent’s assertion that the Applicant failed to demonstrate an understanding of the notion of positive behaviour support, the Applicant demonstrated proactive and supportive behaviour by accessing and utilising the materials and resources that were available support the client;
● In the circumstances the Respondent did not have a valid reason for the dismissal of the Applicant;
● Whilst some of the allegations were put to the Applicant during his interview with Mr Farlow, new allegations concerning inconsistencies arose during the show cause process. The significance of the new allegations was not put to the Applicant or particularised. Consequently the Applicant was not notified of all of the reasons for the termination of his employment by the Respondent;
● As he was not notified of all of the reasons, the Applicant was not given an opportunity to respond to those reasons;
● Although the Applicant was offered the opportunity to have a support person present during his meeting with Ms Treston on 5 December 2013, he was not given a similar opportunity during his interview with Mr Farlow on 11 October 2013;
● The reason for dismissal related to conduct not to performance;
● The size of the Respondent’s enterprise warranted a well organised, streamlined unfair dismissal process;
● Although the Respondent had available to it and utilised its human resources management function, both the investigation process adopted and the termination process were flawed and lacked professionalism and consideration to the Applicant. Consequently the Applicant was denied a fair go; and
● A further relevant factor in assessing whether the dismissal of the Applicant was harsh unjust or unreasonable is the fact that Ms Treston was the ultimate decision maker in the termination of the Applicant’s employment. Ms Treston had no involvement in the investigation and only met with the applicant on that day of his dismissal. 119
[67] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and its argument is summarised below:
● The Applicant had obligations under his contract of employment to comply with Respondent’s policies;
● One such policy concerned the use of restrictive practices which required amongst other things, that engagement with clients of the Respondent’s services and management of behaviour be undertaken in a way that is the least restrictive way of ensuring the safety of clients and others;
● The Applicant received adequate training to enable him to carry out his duties as a lifestyle support worker, and in relation to restrictive practices, received training as recently as 3 September 2013;
● The Applicant’s conduct involving the Client on 28 September 2013 was patently inconsistent with the Respondent’s policies and the Applicant’s obligations under the contract of employment;
● The Applicant had several other alternative strategies available to each of which on their own or collectively would have amounted to a lesser restrictive practice than that which was employed by the Applicant in bringing the client to the ground, and later after being placed in an arm lock by the client, engaging in a technique which he mobilised the Client;
● The Applicant’s manoeuver to bring the Client to the ground was itself an act of escalation, the result of which was not to calm the Client but rather have declined to react by employing an arm lock on the Applicant;
● The Applicant acted instinctively and contrary to his training;
● The Applicant received sufficient briefing from his colleagues and there was sufficient information in the client file and his care plan to enable the Applicant to understand the Client, like the behaviours and triggers for those behaviours. Moreover the briefings received combined with the training received by the Applicant more than adequately equipped the Applicant to deal with the situation that confronted him by employing techniques other than the one he chose which would have been consistent with rather than contrary to the Respondent’s policy;
● Throughout the investigation and during the show cause process the Applicant showed little or no insight into his behaviour and importantly the fact that he had acted in a manner inconsistent with the Respondent’s policies on the rights of client care;
● In the circumstances the Respondent had a valid reason for the Applicant’s dismissal and was justified in effecting the dismissal summarily;
● The Respondent conducted a thorough investigation during which the Applicant was made aware of the allegations and the Respondent’s concerns and was given ample opportunity to respond. The Applicant responded during the investigation meeting with Mr Farlow on 11 October 2013, in response to the show cause letter from the Respondent, and during the meeting with Ms Treston on 5 December 2013; and
● The Applicant was notified of the reason for his dismissal and given an opportunity to respond. 120
[68] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s. 387 of the Act below.
Valid reason - s.387(a)
[69] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 121 The reason should be “sound, defensible and well founded”122 and should not be “capricious, fanciful, spiteful or prejudiced.”123 Where, as in the present case, the Respondent relies on conduct of the Applicant to justify its decision to terminate his employment, I need to be satisfied that the conduct as alleged by the Respondent occurred.124 A mere suspicion of conduct does not amount to a valid reason.125
[70] In the context of the present case, whether the reason for dismissal was a sound, defensible and well-founded reason depends whether the Applicant engaged in the conduct alleged. A secondary consideration is whether the conduct was serious misconduct.
[71] For the reasons given in [16]-[31] and [38]-[40] above I am satisfied that the Applicant engaged in conduct which amounted to an application to the Client of a restrictive practice. I am also satisfied that the restrictive practice employed by the Applicant was not the least restrictive practice available to him. The Applicant could have but did not attempt to use vocal calming methods before employing the hip throw manoeuvre. The Applicant could have but did not take a step backwards in an endeavour to break or loosen grip that the Client had on the Applicant’s T-shirt instead of employing the hip throw manoeuvre. The Applicant could have, but did not seek to break or loosen the grip that the Client had on the Applicant’s T-shirt by grabbing his wrists, or by using his arms to push upwards underneath the Client’s arms or by using his arms to push downwards on the Client’s arms. Any of these manoeuvres would likely have broken or loosen the Client’s grip.
[72] Each and every one of these options was available to the Applicant at the time. Each and every one of these options was a less restrictive practice than the one employed by the Applicant. I am also satisfied that the Applicant’s hit throw manoeuvre escalated rather than calmed the situation. This resulted in retaliation by the client and necessitated a further manoeuvre by the Applicant which had the result of immobilising the client. Viewed in its totality, the Applicant’s conduct towards the client was a breach of the Respondent’s policy on restrictive practices and a breach of the Applicant’s employment agreement. The conduct engaged in by the Applicant was in my view misconduct. The Applicant’s misconduct was a valid reason for his dismissal. I have found it unnecessary to determine whether the conduct engaged in by the Applicant amounted to an assault.
[73] As I have indicated in [50] above, during the meeting with Ms Treston on 5 December 2013, Ms Treston remained open to the possibility that, notwithstanding the seriousness of the conduct, the Applicant might continue in employment if he were able to demonstrate some insight into his failures during the incident Client. Ultimately Ms Treston was satisfied that he showed no insight and continued employment was therefore untenable. It is apparent from the Applicant’s response to the show cause letter 126, that he shows little or no understanding that there were several other alternatives available to him or that he contributed in any way to the incident which ultimately resulted in the Client being immobilised. According to Ms Treston, the Applicant maintained this position during her meeting with him on 5 December 2013. I accept her evidence and I can well understand and I accept that in the circumstances, such window of opportunity for continued employment as might have been available to the thereby closed. Ultimately the Applicant was dismissed for the misconduct engaged in. I have already found the misconduct occurred and I am satisfied that the misconduct was a valid reason for dismissal. However to the extent that it is necessary, I am satisfied that the misconduct engaged in coupled with his demonstrable lack of insight, combined to constitute a valid reason for the Applicant’s dismissal.
[74] Turning next to the question of whether the misconduct was serious misconduct. I have already concluded that the Applicant’s conduct involving the client on 28 September 2013 was misconduct. The question that remains therefore is whether the degree of misconduct was of such a kind as would allow summary dismissal. Conduct that is misconduct will justify summary dismissal if it is so seriously in breach of the contract that by standards of fairness and justice an employer should not be bound to continue the employment. 127 Regulation 1.07 of the Fair Work Regulations 2009 sets out a definition of serious misconduct as follows:
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) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(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) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
[75] In the present circumstances, the Applicant was employed as a Lifestyle Support Worker to provide care for clients who suffer from an acquired brain injury and who are necessarily vulnerable. The Respondent’s model of care emphasises the rights of the clients, freedom of movement and decision making for clients with minimal intervention subject to an overriding obligation to ensure the safety of clients and others. The care model is given effect to through the Respondent’s policy on restrictive practices. In essence the policy emphasises intervention in the form of a restrictive practice at its most minimal and only to the extent necessary in the circumstances. In practical terms the policy encourages verbal communication and encouragement of client in preference to any physical intervention, and where physical intervention is necessary, that intervention is to be at a minimum.
[76] The Applicant received training in the Respondent’s policies and specifically and very recently in the use of and limitations on restrictive practices. The Applicant received a briefing on the Client and his behaviours. He was aware of the triggers, and he was aware that a bedtime routine might give rise to some triggers. Indeed he specifically asked to be briefed about the Client’s bedtime routine. Further information was available to the Applicant and the Applicant accessed such information in the Client’s file and in his care plan. In my view the Applicant was sufficiently equipped and trained to deal with the Client and the Client’s behaviour, including the behaviour actually exhibited by the Client on 28 September 2014.
[77] The Applicant reacted to the Client’s strike of him and subsequent grabbing of his
T-shirt instinctively and he panicked. Instead of choosing one of the several less restrictive means available to him to calm the situation and to disengage, the Applicant chose an offensive technique which was highly restrictive, which escalated the situation and ultimately resulted in the Client being restrained and immobilised. Though panicking and acting instinctively, the Applicant’s conduct towards the Client fell seriously short of an appropriate response. It was a serious breach of the Client’s rights and the Respondent’s policy. In my view the Applicant’s conduct, though instinctive, was nonetheless deliberate behaviour that is inconsistent with the continuation of the Applicant’s contract of employment. Moreover in my view the Applicant’s conduct exacerbated rather than mitigated the risk to the health and safety of the Client and to himself.
[78] In the circumstances I am satisfied that the Applicant’s misconduct was serious misconduct and would have justified his summary dismissal. That the Applicant does not recognise the serious nature of the conduct that he engaged in merely serves to underline that the Respondent should no longer be bound by the contract of employment by reason of misconduct of the Applicant.
Notification of the valid reason - s.387(b)
[79] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 128, in explicit terms129 and in plain and clear terms.130 In Crozier v Palazzo Corporation Pty Ltd131 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 132
[80] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves consideration of whether procedural fairness was afforded the Applicant before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?
[81] The Applicant was notified of the reason the Respondent relied on to justify dismissal. First, on 11 October 2013 133 during the meeting between the Applicant and Mr Farlow, the Applicant was informed that an allegation was being made that he had used unreasonable physical restraint amounting to assault of the Client. The Applicant was given an opportunity to respond and provided his version of events to Mr Farlow during that meeting. Secondly, the Applicant was informed that he was stood down on full pay pending an investigation to the allegations and that he would be given further opportunity to respond formally. Thirdly, the Respondent sent a letter to the Applicant dated 14 November 2013134 which set out in some detail the allegations that were made against him. In that letter the Applicant was given until 21 November 2013 to respond. Fourthly, the Applicant responded in writing setting out his version of events and response to the allegations.135 Finally the Applicant was notified of the reason during the meeting with Mr Treston on 5 December 2013.
[82] The Applicant accepts this but says that since the Respondent relied on inconsistencies in his various versions of events, the significance of these inconsistencies on the Applicant’s continued employment were never put to the Applicant and consequently the Applicant was not given an opportunity to respond. This submission is without foundation. The letter to the Applicant dated 14 November 2014 provides the following:
The coordinator was concerned with the differing versions of events, with the original verbal description provided to On Call being different to your written report. This discrepancy triggered an Abuse Prevention Response Investigation which was conducted by Mr Glen Farlow, Business Development Manager acting as the Abuse Prevention Response Investigator.
. . .
The description of the incident as recorded on the incident report, and as per the Abuse Prevention Response Investigation, again returned differing versions of the event. 136
[83] It is clear that the letter was putting the Applicant on notice that is differing versions of events and the discrepancies arising therefore were an issue about which the Respondent was concerned and about which the Applicant was invited to respond.
[84] That the Applicant was aware that this was a concern is made clear from the following passage in his response to the letter of 14 November 2014:
I hope that now you can see both where the discrepancies lie in the reports and the reason that I claimed to have no idea why I was attacked. 137
[85] It seems to me clear that the extent to which the Applicant’s differing accounts of the incident factored in the ultimate reason to dismiss, the Applicant was given the reason and an opportunity to reply to that reason.
[86] The ultimate reason for the Applicant’s dismissal was his misconduct. He was notified of that reason before the decision to dismiss him from his employment was made.
Opportunity to respond - s.387(c)
[87] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The consideration of whether and to what extent that opportunity was given is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 138 Recently in Pitts v AGC Industries Pty Ltd139 a Full Bench of the Commission said:
“In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.” 140 (Citations omitted)
[88] The evidence clearly establishes that the Applicant was given an opportunity to respond to the reason for his dismissal on 11 October 2013, in his response to the show cause letter of 14 November 2013 and during his meeting with Ms Treston on 5 December 2013. I have dealt with the opportunity to respond to the inconsistency allegation in the previous section.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[89] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s. 387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 141 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present. This is not such a case.
[90] The Applicant was offered the opportunity to have a support person present during his meeting with Ms Treston on 5 December 2013. The Applicant submits he was not given a similar opportunity during his interview with Mr Farlow on 11 October 2013. There is no evidence and the Applicant does not allege that he asked for a support person. There is no evidence and the Applicant does not allege that that the Respondent denied him the opportunity to have a support person present during his meeting with Mr Farlow on 11 October 2013. As the Applicant did not ask for a support person there was no unreasonable refusal by the Respondent to allow the Applicant to have a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[91] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 142 For the reasons given earlier in this decision I am satisfied that the Respondent dismissed the Applicant for reasons relating to his conduct and not his performance. The Respondent did not rely on, and did not make any submission to the effect that the Applicant’s dismissal related to his performance. It follows that in the circumstances of this case, this factor is not a material consideration.
Impact of the size of the Respondent on procedures followed - s.387(f)
[92] The size of the Respondent’s enterprise did not impact on the procedures followed by the Respondent in effecting the dismissal. The Applicant submitted that the size of the Respondent’s enterprise warranted a well organised, streamlined unfair dismissal process. Implicit in that submission is that the procedure adopted by the respondent was neither organised nor streamlined. This submission is not without merit as the on-again off-again suspension demonstrates. Moreover there is an unexplained and in my view inordinate delay between the incident on 28 September 2013 and the ultimate dismissal on 5 December 2013. The delay is unsatisfactory and in my view an organisation of the size and standing of the Respondent should have procedures in place which would enable a thorough but expeditious investigation of serious allegations such as those made against the Applicant.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[93] The absence of dedicated human resource management or expertise in an employer’s enterprise may also impact on the procedures followed by an employer in effecting a dismissal. The evidence in this case so far as it relates to this consideration is uncontroversial. It is clear that the Respondent not only had access to dedicated human resources expertise but that it used that expertise in the form of Mr McCraw. This factor is a neutral consideration in the context of this application.
Other relevant matters - s.387(h)
[94] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.
[95] The Applicant submitted that further relevant factor in assessing whether the dismissal of the Applicant was harsh unjust or unreasonable is the fact that Ms Treston was the ultimate decision maker in the termination of the Applicant’s employment. Ms Treston had no involvement in the investigation and only met with the Applicant on that day of his dismissal. I do not regard this late involvement in the dismissal process as factoring into any unfairness in the Applicant’s dismissal. It is not unusual for ultimate decision-makers to rely upon the work and investigation of others in making their decisions. I have already concluded that the Applicant engaged in misconduct of a serious kind. I am also satisfied that on the information available to Ms Treston, the conclusion that she came to was reasonable in the circumstances.
[96] I have taken into account the Applicant’s length of service, which was just over two years and there is no suggestion that the Applicant was other than an effective work during that period. I have taken into account that the dismissal will have adversely impacted financially on the Applicant. I have also taken into account the vulnerable position of the Client, who has neither the cognitive capacity nor ability to express his frustration other than by inappropriate behaviour, and is thereby is wholly reliant on appropriate responses from those charged with his care. I have also taken into account that the Applicant was paid in lieu of notice even though, in my view the misconduct engaged in justified summary dismissal.
Conclusion
[97] Taking into account each of the matters discussed above, I have come to the conclusion that the dismissal of the Applicant was not harsh, unjust nor unreasonable. In my view, the Applicant’s conduct when viewed in its totality, justified dismissal.
[98] The application for an unfair dismissal remedy is dismissed. An order giving effect to this dismissal is issued separately in PR555284.
DEPUTY PRESIDENT
Appearances:
G. Pinchen for the Applicant
B. Heath SC for the Respondent
Hearing details:
2014.
Brisbane/Melbourne Videolink
12 June
2014.
Brisbane
19, 20 June
Final written submissions:
Applicant, 11 July 2014
Respondent, 25 July 2014
1 Exhibit A1, Exhibit F thereto
2 Ibid
3 Section 396
4 Respondent's defence submissions 31 March 2014 at [1] – [2]
5 Ibid at [3]
6 Exhibit R1, Annexure 1 thereto
7 Exhibit R4
8 Ibid at [1]
9 Ibid
10 Exhibit R1, Annexure 1 thereto
11 Ibid at [1]
12 Ibid
13 Ibid at [2]
14 Ibid at [4]
15 Ibid
16 See transcript PN 110 – PN 120
17 Exhibit A1 at [2]
18 Ibid at [5]
19 Ibid; Exhibit R3
20 Ibid at pages 33 to 37
21 Ibid at page 10 and page 37
22 Ibid at page 33
23 Ibid at pages 33 – 34
24 Ibid at page 34
25 Exhibit R12 at [5] - [6] and Annexure DM1 and DM2 thereto
26 Exhibit R1 at [5]; Transcript of the PN 462 – PN 464
27 Exhibit R16 at [12]
28 Transcript PN 642 and PN 651
29 Exhibit A1 at [19]
30 Ibid at [20]
31 Ibid
32 Ibid at [21] – [22]
33 Ibid at [23]
34 Ibid
35 Ibid at [25]
36 Ibid at [25] – [26]
37 Transcript PN 1815 – PN 1819 and PN 1994 – PN 1995
38 Transcript PN 2250 – PN 2252 and Exhibit R18
39 Exhibit A1 at [22] – [23]
40 Transcript PN 556
41 Exhibit A1 at [26] and Transcript PN 555
42 Transcript PN 733 and Exhibit A1 at [31]
43 Exhibit R 14 at [15]
44 Transcript PN 739
45 Transcript PN 746
46 Transcript PN 1010
47 Transcript PN 637
48 Exhibit A1; Transcript PN 638 – PN 639
49 Exhibit R16 at [12]
50 See transcript PN 535 – PN 552
51 Exhibit R14 at [12]
52 Ibid
53 Ibid at [13]
54 Exhibit A1 [34] - [45]
55 Transcript PN 560 – PN 570
56 Transcript PN 573
57 Transcript PN 574
58 Transcript PN 722 – PN 725
59 Exhibit R13 at [15]
60 Transcript PN 1569 – PN1579
61 Transcript PN 1586 – PN 1600
62 Exhibit R14 at [19]
63 Transcript PN 1749 – PN 1777
64 Transcript PN 654
65 Transcript PN 655 – PN 656
66 Transcript PN 658
67 Transcript PN 661
68 Transcript PN 1210 – PN 1222
69 Transcript PN 682
70 It is accepted that the Applicant used calming language once he was released from the arm lock; exhibit A1 at [44]
71 Exhibit A1 at [45] - [49]
72 Transcript PN 512
73 Exhibit R10; Transcript PN 821 – PN 825
74 Iit is dated 1 October 2013
75 Exhibit A2
76 Ibid at page 2
77 Exhibit R9
78 Ibid
79 Exhibit R11
80 Ibid at page 1
81 See transcript PN 652 and PN 662 – PN 682
82 See exhibit A1 at [41]
83 Exhibit A1 and Exhibit E thereto at page 2; See also Exhibit A1 at [43]
84 Exhibit A1 at [41]
85 Exhibit R10
86 Exhibit R15 at [2]
87 Ibid at [5]
88 Ibid at [16]
89 Exhibit R15 at [16]-[21]
90 Transcript PN 1870 – PN 1938
91 Exhibit R12 at [2]
92 Ibid at [14] -[15], DM4 and DN5
93 Exhibit A1 at [50] - [62]
94 Exhibit R5
95 Exhibit R6
96 Transcript PN 1940 – PN1943
97 Exhibit R12 at BM5; See also transcript PN 592 – PN 593
98 Transcript PN 980 – PN 98; PN 1365 – PN 1366
99 Transcript PN 1369
100 Transcript PN 981
101 See transcript PN 1913 compared with PN 982 – PN 985
102 Transcript PN 978 – PN 1003; PN 1045 – PN 1060; PN 1064 – PN 1127
103 Exhibit R5
104 Ibid at [8]
105 Ibid
106 Ibid at [9] and [10]
107 Ibid at page 5
108 Ibid at page 6
109 Ibid pages 6 and 7
110 Exhibit R6
111 Exhibit R7
112 Exhibit A1 at [62]
113 Exhibit R1 at [14] - [20]
114 Transcript PN 448 – PN 449
115 PN 485 – PN 490
116 Sayer v Melsteel[2011] FWAFB 7498
117 (1995) 185 CLR 410
118 Ibid at 465
119 Applicant's outline of submissions 12 March 2014 and the applicant's supplementary submissions 11 July 2014
120 Respondent's defence submissions 31 March 2014 and the respondent's further defence 25 July 2014
121 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378
122 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
123 Ibid
124 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)
125 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
126 Exhibit R6
127 See for example North v Television Corporation Ltd (1976) 11 ALR 599 and Gooley v Westpac Banking Corporation [1995] 59 IR 262
128 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
129 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
130 Previsic v Australian Quarantine Inspection Services Print Q3730
131 (2000) 98 IR 137
132 Ibid at 151
133 Exhibit R 12 at DM5
134 Exhibit R5
135 Exhibit R6
136 Exhibit R5 at page 2 [6] and [8]
137 Exhibit R6
138 RMIT v Asher (2010) 194 IR 1 at 14-15
139 [2013] FWCFB 9196
140 Ibid at [4]
141 See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]
142 Annetta v Ansett Australia (2000) 98 IR 233 at 237
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