Maureen Turland v Yass Valley Aged Care Ltd
[2020] FWC 843
•18 FEBRUARY 2020
| [2020] FWC 843 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maureen Turland
v
Yass Valley Aged Care Ltd
(U2019/3280)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 18 FEBRUARY 2020 |
Application for Relief of Unfair Dismissal –dismissal found to be harsh – reinstatement not appropriate – issue of compensation to be the subject of further proceedings.
[1] Ms Maureen Turland (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 22 March 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Yass Valley Aged Care Ltd (YVAC – the Respondent) on 4 March 2019 was unfair. Ms Turland was dismissed for serious misconduct following a complaint made by the daughter of a resident of YVAC.
[2] The application was heard on 16 and 17 October 2019. At the hearing, Mr Edmund Fry, an Industrial Officer with the Health Services Union (HSU), appeared for Ms Turland while Mr Ian Meagher appeared with permission for the Respondent.
[3] Ms Turland gave evidence on her own behalf.
[4] Evidence for the Respondent was given by:
• Ms Rebecca Grogan, the person who made the complaint regarding Ms Turland’s behaviour and conduct while providing care for her mother;
• Ms Lyn Morgan, the Respondent’s Chief Executive Officer (CEO);
• Ms Carmel Porter, an Assistant in Nursing with the Respondent;
• Ms Simone Hughes, the Respondent’s Care Manager; and
• Ms Nicole Hewitt, a former employee of the Respondent – Ms Hewitt was employed by the Respondent as a casual Registered Nurse (RN) for the period December 2018 until mid-July 2019.
[5] For the reasons set out below, I find that Ms Turland’s dismissal was harsh and that reinstatement is not appropriate. As to the issue of compensation, Ms Turland’s application will be listed for mention/directions to set a timetable for dealing with the issue.
Background
[6] Ms Turland commenced employment with the Respondent as a Care Service Employee in early January 2009. Ms Turland worked in Warmington Lodge, which is one of two on-site residential care facilities operated by the Respondent – the other being Horton House. The facilities are connected by way of a hallway/corridor. Ms Turland worked night shift on both 16 and 17 February 2019, with one of the residents under her care in Warmington Lodge on those nights being Ms Grogan’s mother who was 101 years of age. Ms Grogan stayed with her mother on both nights as she had been advised that her mother was nearing the end of her life. Ms Grogan’s mother passed away on 19 February 2019.
[7] On 22 February 2019 Ms Grogan emailed a complaint regarding Ms Turland to the Respondent. The complaint stated among other things that:
“On the second night I was staying with my mother she became quite distressed and anxious and the carer on duty, whose name was Maureen [Ms Turland], heard our voices and came in with another person whose name was Carmel [Ms Porter].
Immediately upon entering the room Maureen said … She then said my mother obviously needed turning and said to Carmel that she was to be turned to face the wall. Carmel suggested turning her to face the room but Maureen was not interested. She caused pain to my mother when she turned her and I felt was too rough … Dorothy [Ms Grogan’s mother] tried to hold on to Maureen’s hands but Maureen just pulled them away and said,” [sic] I need those fingers”.
Maureen was overly stern with my mother and her actions included holding her hand quite close in front of my mother’s face and saying very loudly and sternly “NO”! She repeated this several times as my mother was clearly distressed and calling out for help. My mother held onto Maureen’s hands in her distress and Maureen pulled away from her and again said “Let go, I need those fingers”. At no time during this short phase did Maureen say anything comforting.
Once my mother had settled Maureen left the room making jokes to the person with her.
During the night the same thing happened a few times and Maureen was stern with my mother each time, including holding my mother’s hands very firmly against her chest. Maureen thought my mother needed some medication to help her settle and called the Registered Nurse from downstairs. The nurse came and I felt that Maureen was overly forceful in stating that my mother needed some medication. Maureen said the doctor had written up Medazzlon (sp?) but she hadn’t been able to find it. She said the doctor had charted it so it had to be there somewhere. However, after further searching it was found and administered. She also suggested Morphine but, as my mother was not showing any pain, I declined.
Maureen then seemed to change and sat on my mother’s bed and “massaged” her face – this involved rubbing her thumb up my mother’s nose and then rubbing circles in my mother’s forehead. She said it helped calm them down but I didn’t see any evidence of this since she had just been medicated. I felt it was more of an intrusion than anything. When my mother settled she said that was how she liked to see them.
Maureen later said Dorothy rings the buzzer a lot during the night and also said that one night she rang 30 times. She said Dorothy was anxious during the night and demanded a lot of attention. She also said that sometimes she enters Dorothy’s room and turns off the buzzer and Dorothy has pressed it again before she gets to the door.
While chatting to Maureen I said that I could hear a lady down the way calling a lot, which I had heard before and Maureen said she has dementia and her family forced her into Warmington Lodge and that it is the source of her unhappiness. She also said the family had directed that this lady not be medicated and that “we are not allowed to even give her a Panadol”. I felt it was most inappropriate that a staff member should be discussing such details with me.
So, I had a pretty distressing night myself as this person dealt with my mother’s concerns in a less than compassionate manner.
The following night … Maureen was on duty again. This time however, the RN on duty downstairs, Barbara, was clearly in charge and Maureen was much subdued and less free with her opinions. At one stage Barbara felt that Dorothy needed to be turned and have her pad changed. I saw that Maureen was not able to competently change the pad and Barbara had to give her directions about how to hold my mother’s legs while the pad was put on … When Maureen was instructed to hold my mother’s arms so Barbara could inject her safely, I felt Maureen held her arms against her chest with more force than was necessary.” 1 (Formatting as per original)
[8] On 26 February 2019 Ms Turland was handed a letter headed “Notification of Disciplinary Action Meeting” (the Notification letter) which directed her to attend a meeting on 4 March 2019 to discuss the allegations regarding her conduct. The letter included the following:
“The purpose of the meeting is to discuss verbal and written allegations of misconduct against you involving the witnessed unacceptable behaviour and conduct relating to a resident’s care.
Details of the alleged serious misconduct are as follows:
During the care of a resident recently you were witness to: manage the resident in a rough, forceful manner both verbally and physically; you showed a lack of empathy for both the resident and the representative; you breach the privacy and confidentiality of another resident; you acted outside your role regarding the medication needs of the resident; and by these alleged actions you have placed the reputation of Yass Valley Aged Care Ltd at serious risk.
Your continued employment at Yass Valley Aged Care Ltd is under serious consideration.” 2 (Emphasis and formatting as per original)
[9] In the lead up to the Disciplinary Action meeting Ms Morgan interviewed several witnesses to the events of 16 and 17 February 2019, i.e. Ms Porter and Ms Hewitt. Ms Morgan did not interview the RN on duty on the night of 17 February, Ms Barbara Connor.
[10] The Disciplinary Action meeting was held on 4 March 2019, with Ms Turland attending with her support person, Mr Joe Rantino of the HSU, who attended via telephone. Shortly after the meeting, Ms Turland was advised verbally that her employment was to be terminated with immediate effect for serious misconduct.
[11] On 7 March 2019 the Respondent sent Ms Turland a letter confirming the termination of her employment. The letter stated among other things that:
“On 04 / 03 / 2019 at 0930 hrs at Horton House you attended the disciplinary meeting to discuss verbal and written allegations of serious misconduct against you involving witnessed unacceptable behaviour and conduct relating to a resident’s care …
During the meeting you were provided with the substance pertaining to each misconduct allegation. You were advised that the witnesses to the alleged actions of misconduct had provided strong evidence confirming the allegations. You provided your responses to the allegations.
Upon consideration of the allegations; the witness reports; and your response, the decision was made to terminate your employment with immediate effect from 04 / 03 / 2019 on the grounds of serious misconduct.” 3
[12] As previously mentioned, Ms Turland lodged her unfair dismissal application on 22 March 2019.
The Applicant’s case
[13] Ms Turland submitted that her dismissal was unjust because she was not guilty of misconduct, unreasonable because the Respondent made the decision to dismiss her absent an objective process and harsh because it was a disproportionate response by the Respondent and given both her length of service and the personal impact of the dismissal on her. Ms Turland’s submissions regarding the various considerations in s.387 of the Act are set out later in this decision.
[14] As to remedy, Ms Turland sought reinstatement with orders providing for continuity of service and backpay for the period from her dismissal until her reinstatement.
[15] In her submissions Ms Turland referred to a number of authorities, including the decisions in Michelle de Leon v Spice Temple Pty Ltd 4, B v Australian Postal Corporation5, Royal Melbourne Institute of Technology v Asher6, Crozier v Palazzo Corporation (Crozier)7, Dianne Hammond v Australian Red Cross Blood Service8 and Byrne v Australian Airlines Ltd (Byrne)9.
[16] Ms Turland in her oral submissions contended that:
• there was not a valid reason for her dismissal as the misconduct she was accused of did not occur;
• the Respondent had failed to properly investigate Ms Grogan’s complaint; and
• the Respondent had failed to provide her with reasons for her dismissal or an opportunity to respond to those reasons.
[17] More particularly, Ms Turland disputed the allegations submitting that her evidence should be preferred to that of other witnesses. Ms Turland also posited that the investigation process was seriously flawed for a number of reasons, including that the Respondent did not interview Ms Connor, did not provide a copy of Ms Grogan’s complaint to the witnesses interviewed as part of the investigation, did not provide her with full and proper particulars of the allegations, did not take into account all of the responses provided by the witnesses, cut her off during the meeting of 4 March 2019 thereby precluding her from giving a proper response and did not seek further information from the witnesses. In addition, Ms Turland submitted that as no evidence had been received from Ms Connor the Commission should conclude as per Jones v Dunkel 10 that her evidence would not have supported the Respondent’s position.
[18] Beyond that, Ms Turland submitted inter alia that:
• the Respondent had decided to terminate her employment prior to the meeting of 4 March 2019;
• the facts in this case were very different to those which existed in Ms Shirley Govender v Bupa Aged Care Mosman (Bupa) 11 which was relied upon by the Respondent, highlighting that there was video footage of the incidents in Bupa; and
• little weight should be attached to those previous incidents referred to in Ms Morgan’s witness statement which resulted in her being counselled.
[19] Ms Turland provided two witness statements 12. In her first witness statement Ms Turland among other things responded to Ms Grogan’s complaint, deposing that she saw the complaint for the first time when she received the Respondent’s response to her unfair dismissal application. Ms Turland in that statement also provided a detailed outline of the events of 16 and 17 February 2019. Key aspects of her evidence in that regard included that:
• she would not be able to pull her hands away from Ms Grogan’s mother as she has torn ligaments in her thumbs;
• on the night of 16 February she called Ms Porter, the carer on duty at Horton House, and asked her to come up and assist with putting Ms Grogan’s mother on the commode;
• Ms Porter also assisted with putting Ms Grogan’s mother back to bed, adding that together they rolled her on to her right-hand side;
• in response to questions from Ms Grogan about another resident she did say that the resident had dementia and that she could not be given Panadol, adding that she only responded in this way to reassure Ms Grogan that the resident was being cared for; and
• she was competent in the task of changing resident’s incontinence pads (pads) but that on 17 February she was under the direction of an experienced RN, adding that this was what Ms Grogan no doubt observed in contrast to the previous night when the RN was less certain.
[20] Ms Turland further deposed in her first witness statement that the personal consequences of her dismissal were significant as she had not been able to find another job and was unlikely to at 65 years of age. Ms Turland also contended that she had been treated differently to others in circumstances where complaints had been made against them, adding that in one case the outcome was that the employee was not to go into the resident’s room for a couple of weeks while in the other case the carer was told not to deal with the resident anymore. Beyond that, Ms Turland provided details of her efforts to secure another job and deposed that she had in June 2019 enrolled in a Certificate III in Individual Support (Ageing) course at Yass TAFE. Ms Turland also stated that she had made two submissions to the Royal Commission into Aged Care Quality and Safety (the Royal Commission), speculating that Ms Morgan may have become aware of this because on one occasion she saw a staff member looking at her bag which had on top of it an envelope clearly addressed to the Royal Commission and that she believed the staff member would have reported what they had seen to Ms Morgan.
[21] In her second witness statement, Ms Turland responded to almost each paragraph of each of the witness statements filed by the Respondent. Among other things, Ms Turland deposed that:
• the four incidents involving counselling which were referred to in Ms Morgan’s witness statement were not formal disciplinary matters;
• at the 4 March 2019 meeting Ms Morgan read the allegations from the Notification letter and then quoted from another piece of paper which she now understood to be Ms Grogan’s complaint, adding that at no stage was she able to read the complaint or even see the passages that were being quoted by Ms Morgan;
• contrary to Ms Morgan’s witness statement, she was confused as to who the resident was and the details of the allegations;
• she did not recommend medications to Ms Hewitt but rather responded to her questions;
• she denied speaking to Ms Grogan’s mother in a loud voice;
• she did not recommend medications for Ms Grogan’s mother to Ms Grogan;
• at no point while Ms Porter was in the room did Ms Grogan’s mother grab her hands;
• she did not disclose the details of the matter to a former colleague after she had been dismissed as she did not inter alia know the identity of the complainant or seen the written complaint until after she had filed her unfair dismissal application;
• sign language was not part of the care plan for Ms Grogan’s mother.
• Ms Hewitt did not assist her with toileting Ms Grogan’s mother;
• she had never referred to herself as ‘Dr Maureen’ or any variant thereof; and
• she did not pressure Ms Hewitt to administer any medications to Ms Grogan’s mother.
[22] Key aspects of Ms Turland’s oral evidence were that:
• she was aware of her obligation to maintain confidentiality about resident’s medical conditions, adding that she had attended training programs regarding privacy and confidentiality;
• she did not know if the staff member who she observed looking at her bag containing an envelope addressed to the Royal Commission had told Ms Morgan of this;
• if the staff member had informed Ms Morgan of the envelope, Ms Morgan would not have known whether her submission was a complaint or a compliment;
• the handwritten notes she gave to Ms Morgan at the meeting of 4 March 2019 13 had been prepared after she was handed the Notification letter on 26 February 2019, acknowledging that the resident referred to in the third paragraph of the notes was Ms Grogan’s mother;
• at the meeting with Ms Morgan on 4 March 2019 she denied the allegations;
• the more detailed response to the allegations at Attachment MT8 of her first witness statement was only prepared after these proceedings had commenced, adding that her responses at the 4 March 2019 meeting would have been the same as set out in the attachment had she had a copy of Ms Grogan’s complaint;
• she was not qualified to give advice on medication to a RN;
• she disagreed with that aspect of the record of Ms Morgan’s discussion with Ms Hewitt on 28 February 2019 in which Ms Hewitt said among other things that she witnessed her repeatedly saying ‘No’ to Ms Grogan’s mother, that she disagreed with toileting Ms Grogan’s mother and that Ms Hewitt went and got the lifter;
• as a result of new rules applying to the sector she was not qualified to work as a Care Worker until she successfully completed the 12-month Certificate III course she commenced in July 2019; and
• it was Ms Porter who assisted her with toileting Ms Grogan’s mother on 16 February 2019 despite the care notes for that day including the following “at 2.00 RN helped put Dorothy on the commode by lifter” 14 in handwriting which she acknowledged was hers.
The Respondent’s case
[23] The Respondent in its submissions set out a chronology of events leading up to Ms Turland’s dismissal. In summary, the Respondent contended that Ms Turland’s dismissal was not harsh, unjust or unreasonable in the circumstances and that her application should be dismissed. The Respondent’s submissions regarding the various considerations in s.387 of the Act are set out later in this decision.
[24] The Respondent also addressed the issue of remedy in its submissions in the event that the Commission determined that Ms Turland’s dismissal was unfair. Specifically, the Respondent submitted that reinstatement was inappropriate for the following reasons:
• Ms Turland had demonstrated that she does not respect the privacy of residents and as such it could not trust her to carry out her duties while maintaining the confidentiality required by its policies and applicable legislation, highlighting that on 4 March 2019 after the disciplinary meeting Ms Turland met with a former employee of the Respondent with whom she shared sensitive medical information regarding Ms Grogan’s mother and that her witness statement contained unnecessary detail about a resident’s medical condition;
• although Ms Turland has no medical training, throughout her employment she continuously acted outside the scope of her role by recommending medications and/or by providing medical care, referring to aspects of Ms Turland’s witness statements and the revelation that she referred to herself and was referred to by RNs as ‘Dr Maureen’; and
• it had been discovered after Ms Turland’s dismissal that she had failed to follow a lawful and reasonable direction by lifting Ms Grogan’s mother from her bed without assistance on 16 February 2019 and in doing so engaged in serious misconduct which would justify summary dismissal.
[25] In its oral submissions the Respondent submitted inter alia that:
• there was a valid reason for Ms Turland’s dismissal, adding that whether the investigation was procedurally fair was a matter for the Commission to determine but in its view any deficiencies in the procedures followed in the case were not fatal to the dismissal being for a valid reason;
• nothing turned on Ms Morgan’s evidence that she cut off Ms Turland during the meeting of 4 March 2019 when her response drifted into areas which were not relevant;
• in respect of Ms Turland’s Jones v Dunkel contention, there was no need to seek Ms Connor’s views as the allegations regarding 17 February were not the primary point of contention, adding that Ms Morgan investigated the events of 16 February 2019 and concluded there was sufficient evidence to justify a finding of serious misconduct;
• while Ms Morgan could have done more in the context of the investigation, the question is whether doing so would have led to a different outcome;
• Ms Turland’s evidence regarding the toileting issue should not be preferred over the contemporaneous case notes (i.e. Exhibit 8);
• Ms Hughes’ evidence that she did not read all the evidence relating to the complaint and ensuing investigation did not invalidate the decision to dismiss Ms Turland as Ms Morgan was entitled to make the decision to terminate Ms Turland’s employment;
• Ms Porter’s and Ms Hewitt’s evidence was not shaken under cross-examination, adding that their evidence was consistent with Ms Grogan’s complaint;
• when weighing up the reliability of the witness evidence the starting point should be any contemporaneous documents;
• Ms Grogan was an independent witness who had nothing to gain from making her complaint;
• Exhibit 8 confirmed Ms Hewitt’s evidence regarding the medication administered to Ms Grogan’s mother on 16 February 2019;
• if Ms Grogan’s, Ms Porter’s and Ms Hewitt’s evidence was accepted by the Commission it provided a sound basis to find that there was a valid reason for Ms Turland’s dismissal;
• the prior incidents which resulted in Ms Turland being counselled gave credence to the matters before the Commission;
• reinstatement was not appropriate in this case, adding that were Ms Turland to be reinstated it may need another person to monitor her work given that she would be dealing with people who required sensitive care; and
• if the Commission concluded that the conduct attributed to Ms Turland did not occur, the fact that Ms Turland did not hold a Certificate III in Individual Support (Ageing) may be an impediment to reinstatement.
[26] The Respondent also referred the Commission to the decision in Bupa in support of its submissions.
[27] Ms Grogan in her witness statement 15 provided a more detailed account of the events of 16 and 17 February 2019. Key aspects in that regard included that:
• Ms Turland’s demeanour on 16 February 2019 when she (i.e. Ms Turland) and Ms Porter tried to assist her mother go to the toilet was very forceful and assertive, bordering on aggressive;
• also on 16 February 2019:
- on about six occasions when her mother tried to hold Ms Turland’s hands, Ms Turland would hold out her hand in front of her mother’s face and say “no, no, no” in a chiding and aggressive voice, adding that she considered this unnecessarily forceful and condescending to her mother,
- at one stage Ms Turland entered her mother’s room with an RN and recommended to her (i.e. Ms Grogan) that her mother be given anti-anxiety medication, observing that the RN was taking instruction from Ms Turland and that she felt that Ms Turland was overbearing and trying to assert herself over the RN, and
- she was concerned about whether or not her mother needed either morphine or the anti-anxiety medication which Ms Turland was recommending, adding that she expressed some doubts about the medication;
• on 17 February 2019 Ms Turland repeated her behaviour of the previous night when her mother tried to hold her hands; and
• also on that night Ms Turland started to lean heavily on her mother’s chest when the RN was administering an injection to her mother’s leg, deposing that this shocked her and that she felt Ms Turland had used excessive force.
[28] In addition, Ms Grogan deposed that after her mother passed away she reflected on her experiences with Ms Turland and believed that her mother deserved better care than she received from Ms Turland. As a result, Ms Grogan on 22 February 2019 sent an email to the Respondent lodging a formal complaint regarding Ms Turland. In her witness statement, Ms Grogan also questioned aspects of Ms Turland’s witness statement, e.g. in response to Ms Turland’s statement that she said goodbye to her mother in sign language, Ms Grogan deposed that her mother did not know sign language.
[29] The most compelling piece of Ms Grogan’s oral evidence was her forthright statement that while she had possibly confused dates, she had not confused nor embellished events. Other key aspects of Ms Grogan’s oral evidence were that:
• it was Ms Porter who assisted with toileting her mother on 16 February 2019, adding that she had left the room while this occurred and could not recall if her mother was toileted again that night;
• her mother grabbed Ms Turland’s hands on a number of occasions on 16 February 2019 though she could not recall how many times she did so, adding that she thinks that may have been when Ms Turland had said “let go, I need those fingers”;
• she was not aware of what medication had been prescribed for her mother;
• she believed that the RN on duty on 16 February 2019 was present when she and Ms Turland had the discussion referred to in her witness statement regarding Ms Turland’s suggestion that her mother be administered morphine or anti-anxiety medication;
• with regard to her evidence that her mother was examined by a doctor on the morning of 17 February 2019, she could not recall the approximate time of the examination or whether her mother had been administered morphine on the night of 16 February 2019;
• the language used her witness statement and her complaint to describe the incident on 17 February 2019 when her mother was administered an injection by the RN in her view meant essentially the same thing despite the different language used; and
• she did not ask Ms Turland about whether something could be done about the resident down the hall, attesting that she said to Ms Turland that she could hear someone down the hall.
[30] Ms Porter deposed in her witness statement 16 that on the night of 16 February 2019 she was requested by Ms Turland to come to Warmington Lodge to assist her with turning a resident in bed. Ms Porter further deposed that Ms Turland proceeded to turn the resident without her assistance and in doing so Ms Turland grabbed the resident’s hand and moved towards her face and said words to the effect of “[n]o, no, no”, adding that Ms Turland’s actions in holding the resident’s hands and shaking them struck her as unusual and inappropriate. Ms Porter also deposed that:
• she did not remember putting the resident on the commode;
• she met with Ms Morgan on 27 February 2019 to discuss Ms Turland’s care of Ms Grogan’s mother on 16 February 2019; and
• the formal record of her meeting with Ms Morgan attached to her witness statement 17 reflected her recollection of the meeting, though she did not recall agreeing that she heard Ms Grogan’s mother calling out for help during the events of that night.
[31] In her oral evidence Ms Porter confirmed several aspects of her witness statement, including that she did not assist Ms Turland with toileting or turning Ms Grogan’s mother, she did not recall Ms Grogan’s mother calling out for help and that Ms Turland grabbed Ms Grogan’s hands. In respect of Ms Turland grabbing Ms Grogran’s mother’s hands, Ms Porter attested that Ms Grogan’s mother was agitated but she could not recall if she was moving her hands around. As to the meeting with Ms Morgan, Ms Porter stated that she had not been provided with a copy of Ms Grogan’s complaint, did not have the opportunity to read the complaint nor was the complaint read out during the meeting, adding that she was unaware that there had been a complaint at that stage. When questioned by the Commission regarding the apparent inconsistency between her evidence in that regard and the record of meeting which stated that “CEO informed Carmel that her assistance was required as part of the investigation of a complaint” 18, Ms Porter said that she must have been told about the complaint by Ms Morgan.
[32] Ms Morgan in her witness statement 19 deposed that on 20 February 2019 she learnt of the passing of Ms Grogan’s mother and went down to the room to give her condolences to Ms Grogan, with Ms Grogan asking to speak to her regarding concerns she had about one of the night duty staff who cared for her mother. Ms Morgan further deposed that later that day Ms Grogan came to her office with her adult daughter and outlined her concerns regarding Ms Turland’s behaviour, with Ms Morgan apologising and asking her to put in writing what she had just said. After viewing Ms Grogan’s complaint on 25 February 2019, Ms Morgan handed Ms Turland the Notification letter on 26 February and on 27 and 28 February met with Ms Porter and Ms Hewitt respectively. Ms Morgan deposed that she was concerned that both Ms Porter and Ms Hewitt confirmed the accuracy of Ms Grogan’s complaint, with Ms Hewitt also stating that she felt bullied by Ms Turland into giving Ms Grogan’s mother injectable medication.
[33] Also in her witness statement, Ms Morgan provided a detailed account of the meeting with Ms Turland on 4 March 2019. Key aspects of her evidence in that regard included that:
• at the meeting she read out each of the allegations in the Notification letter and the corresponding sections of the complaint, adding that she was careful to give Ms Turland adequate time to respond to each of the allegations after they had been put to her;
• at one stage during the meeting when responding to one of the allegations Ms Turland began reading out her written response, adding that when she interjected questioning the relevance of the first point made by Ms Turland 20 that Ms Turland handed her the written response;
• at no stage during the meeting did Ms Turland seem confused about the identity of the resident or surprised by the details of the allegations;
• the meeting adjourned at around 9:50am to consider Ms Turland’s verbal and written responses;
• having discussed the matter with Ms Hughes and Mr Reeves, both of whom attended the meeting on behalf of the Respondent, she decided to terminate Ms Turland’s employment on the basis that her conduct was serious misconduct which justified summary dismissal;
• she considered this was necessary in circumstances where Ms Turland had not provided any information to refute the allegations and, on balance, she preferred the evidence of Ms Grogan, Ms Porter and Ms Hewitt to that of Ms Turland; and
• at around 10:15am the meeting resumed with Ms Turland advised that it had been decided to terminate her employment with immediate effect.
[34] In addition to disputing aspects of Ms Turland’s witness statement, other key aspects of Ms Morgan’s witness statement included that:
• she had reviewed Ms Turland’s personnel file and found four incidents, three of which were similar to those in this case, which required counselling with the file notes relating to each of those incidents annexed to her witness statement 21;
• she had no knowledge that Ms Turland had made submissions to the Royal Commission until reading Ms Turland’s witness statement; and
• she would have grave concerns were Ms Turland to be reinstated to her position for several reasons including that the Respondent could no longer trust her to work independently without being supervised at all times, adding that this was not feasible given its operational requirements.
[35] Key aspects of Ms Morgan’s oral evidence included that:
• she had handled many investigation processes before, adding that since she returned to YVAC in 2016 she could think of three complaints which she had investigated;
• no formal warnings were issued to Ms Turland in respect of any of the four incidents where she had been counselled;
• Ms Grogan’s complaint was not attached to the Notification letter nor did that letter include the particulars of the complaint;
• while a copy of Ms Grogan’s complaint was not provided to Ms Turland at the 4 March 2019 meeting she read from the document at the meeting;
• she interrupted/interjected Ms Turland at least twice during the meeting of 4 March 2019, the first time being before the meeting had started;
• it was possible that her second interjection precluded Ms Turland from providing a full response;
• she agreed with proposition that she did not provide procedural fairness to Ms Turland, later accepting that she meant this in a ‘global’ sense as opposed to how the term had been interpreted by the courts;
• she did not interview Ms Connor as part of the investigation as her focus was on the events of the night of 16 February 2019, acknowledging that Ms Grogan’s complaint also raised concerns regarding Ms Turland’s handling of her mother on 17 February 2019;
• she had not decided to terminate Ms Turland’s employment before the meeting of 4 March 2019, adding inter alia that she gave consideration to Ms Turland’s responses before deciding to terminate her employment;
• she did not know whether she should have sought further information from those that she interviewed as part of the investigation following her meeting with Ms Turland, adding that it possibly may have been appropriate for her to seek further information from Ms Grogan; and
• she did not know how to respond to the proposition that a first and final warning would have been a more appropriate response given the conflicting statements in this case.
[36] Ms Hughes in her witness statement 22 stated that she was not aware of any formal misconduct proceedings regarding Ms Turland prior to those arising from the events in this case, adding that she was aware that a number of staff members had made informal verbal complaints about the quality of care provided to residents by Ms Turland and that Ms Turland had been spoken to informally about these issues. Ms Hughes further stated that Ms Morgan informed her about Ms Grogan’s complaint regarding Ms Turland and that she was not aware that Ms Turland had made submissions to the Royal Commission until she read Ms Turland’s witness statement. Also in her witness statement, Ms Hughes described the meeting of 4 March 2019 with Ms Turland deposing inter alia that:
• the meeting began with Ms Morgan reading out the Notification letter previously provided to Ms Turland and then adding further factual details regarding the circumstances of the allegations;
• Ms Turland confirmed that she understood the allegations and subsequently read from a set of pre-prepared handwritten notes, describing Ms Turland’s responses as not directly related to the events of 16 and 17 February 2019;
• the meeting adjourned on two occasions, the first to allow Ms Turland to speak with her support person and the second to allow Ms Turland to collect herself;
• during the second recess Ms Morgan suggested that given the severity of Ms Turland’s actions and her reaction to the allegations the appropriate remedy was dismissal, adding that she agreed that dismissal was appropriate; and
• when Ms Turland returned to the room Ms Morgan advised her that she was to be dismissed with immediate effect.
[37] Ms Hughes further deposed that:
• on or around 5 March 2019 a former employee of the Respondent informed her that the previous day Ms Turland had visited her at home and spoke in detail about Ms Grogan’s complaint and the medications that were administered to Ms Grogan’s mother; and
• her professional opinion as a RN of 24 years was that it was inappropriate for a carer to recommend medications for a resident as that was outside their area of expertise and scope of practice, adding that care staff should report their observations to the RN on duty and allow the RN to make the clinical decision.
[38] In her oral evidence Ms Hughes attested inter alia that:
• she had conducted/been part of several disciplinary investigations;
• prior to the meeting of 4 March 2019 with Ms Turland she had not read the records of Ms Morgan’s meetings with Ms Porter and Ms Hewitt, later adding that she was advised of the contents of the document regarding the meeting with Ms Porter;
• Ms Connor, the RN on duty on 17 February 2019, had not been interviewed as part of the investigation, later expressing the view that she should have been interviewed;
• with regard to Ms Grogan’s complaint that on 17 February 2019 she felt that Ms Turland held her mother’s arms against her chest with more force than was necessary while the RN gave her mother an injection, she believed the allegation was substantiated based on the information passed onto her by Ms Morgan though she later added that she was unsure as to how she came to the view the allegation was substantiated;
• the Respondent’s focus was on the events of 16 February 2019;
• having regard to the record of Ms Morgan’s meeting with Ms Porter she did not consider the allegation about making jokes was substantiated;
• she did not believe that a full and proper investigation had been conducted;
• she was of the view that having heard some of Ms Turland’s responses at the meeting of 4 March 2019 Ms Morgan should have reconfirmed the facts with Ms Grogan and that further steps should have been taken before the decision was made to terminate Ms Turland’s employment;
• the investigation and disciplinary process was fair with all but a minor allegation substantiated;
• she agreed that Ms Turland was:
- not provided with the particulars of the complaint in the Notification letter,
- not provided with a copy of the complaint prior to the meeting of 4 March 2019 nor was she provided with a copy of the complaint during that meeting;
- not all witnesses named in the complaint were interviewed by Ms Morgan, and
- cut off by Ms Morgan during the meeting of 4 March 2019 when providing her response on an issue;
• she agreed that on at least one issue (i.e. the joke allegation), one witness did not confirm the allegation;
• she was not present when Ms Turland provided details of the incident to a former colleague nor were notes or a recording of that discussion provided to her by the former employee; and
• there was no other way that the former employee would have become aware of the incident other than from Ms Turland.
[39] Ms Hewitt in her witness statement 23 deposed that on 16 February 2019 she was the RN rostered to work night shift. Ms Hewitt stated that early on in the night she went to Warmington Lodge to check on how the night was progressing and that while there she checked in on Ms Grogan’s mother, adding that as soon as she walked into the room Ms Turland suggested that she should administer Midazolam, a sedative, to her. Ms Hewitt described Ms Turland’s demeanour as pushy and aggressive, adding that she considered this inappropriate. Instead Ms Hewitt administered Temazepam, a sleeping tablet, as she thought this the gentlest approach to settling Ms Grogan’s mother. Ms Hewitt subsequently sought Ms Turland’s assistance to reposition Ms Grogan’s mother, stating that while this was done Ms Grogan’s mother attempted to hold Ms Turland’s hands. However, Ms Turland pushed her hands away in a manner that was unnecessarily forceful and rough. Ms Hewitt also deposed that during this period Ms Grogan’s mother, who she described as confused, would try and leave her bed asking to be put into bed, adding that Ms Turland would push her down in a forceful a manner telling her that she was in bed. At around 4:00am that night Ms Turland called Ms Hewitt as Ms Grogan’s mother had become agitated again and was repeatedly asking to go to the toilet. Ms Hewitt deposed that after lifting Ms Grogan’s mother and trying to assist her to go to the toilet that she remained agitated, with Ms Turland again suggesting that she administer Midazolam. Ms Hewitt stated that she decided against doing so at that point. Ms Hewitt further stated that she visited Ms Grogan’s mother again at about 6:00am, observing that her agitation appeared to have increased and that she was still anxious and confused. As a result, she stated, she decided to administer Midazolam at 6:20am.
[40] Beyond that, Ms Hewitt deposed that:
• she left her shift feeling very uncomfortable with Ms Turland’s behaviour, adding that she felt Ms Turland had been pressuring her to administer Midazolam and trying to take advantage of the fact that she was new to being a RN;
• she was called to a meeting with Ms Morgan on 28 February 2019 at which she was advised that there had been a complaint relating to the night of 16 February 2019 and asked to recount the events of that night; and
• she told Ms Morgan that Ms Turland had been “gruff” with Ms Grogan’s mother and she considered it inappropriate for Ms Turland to be discussing the resident’s medication with her family in circumstances where she was not qualified to do so.
[41] In her oral evidence Ms Hewitt attested among other things that:
• she could not recall if Ms Turland recommended that she administer Midazolam to Ms Grogan’s mother as soon as she walked into the room or whether the suggestion was made in the context of a larger conversation;
• Ms Turland made the suggestion in Ms Grogan’s mother’s room as opposed to the hallway with Ms Grogan in the room at the time;
• she considered Ms Turland to be overly blunt when she made the suggestion, acknowledging that Ms Turland had not raised her voice;
• she did not recall asking Ms Turland for advice regarding medication for Ms Grogan’s mother;
• she had seen the PRNs (i.e. the list of prescribed medications) for Ms Grogan’s mother but did not say that to Ms Turland as she did not think it was an appropriate conversation to have with her;
• she did not accept that Ms Grogan had requested her mother be given some medication to help her settle;
• she did not say anything (nor did Ms Grogan) when she observed Ms Turland being unnecessarily forceful and rough or forceful with Ms Grogan’s mother, adding that in the latter instance she tried to intervene by taking over the care of Ms Grogan’s mother; and
• she did not recall Ms Grogan’s mother being in pain when she and Ms Turland put her on the commode, adding that Ms Grogan was not in the room at that time.
The Statutory framework
[42] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Turland is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(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.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.”
[43] There is no dispute that Ms Turland was dismissed, so s.385(a) of the Act is satisfied. Ms Turland contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Ms Turland was unfairly dismissed, I must consider whether her dismissal was harsh, unjust or unreasonable as per s.385(b) and take into account the matters set out in s.387 of the Act.
Was the dismissal harsh, unjust or unreasonable?
Valid reason – s.387(a)
[44] The Respondent must have a valid reason for Ms Turland’s dismissal. The reason should be “sound, defensible and well founded” 24 and should not be “capricious, fanciful, spiteful or prejudiced.”25
[45] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 26. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice27, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[46] Ms Turland contended that there was no valid reason for her dismissal because the alleged misconduct did not occur. In her submissions Ms Turland denied the allegations, though in acknowledging that it may have been best had she said nothing about the other resident calling out for help she also posited that she only did so to reassure Ms Grogan that the resident was being cared for. In the alternative, Ms Turland submitted that were the Commission to find that one or more of the allegations was substantiated, that it was not of sufficient seriousness to warrant dismissal. Beyond that, Ms Turland submitted that her conduct was not wilful or with a wrong intention and that her dismissal was harsh because it was disproportionate to the alleged misconduct.
[47] The Respondent submitted that Ms Turland’s conduct, both separately and cumulatively, provided a “sound, defensible or well-reasoned” reason for her dismissal. Key aspects of the Respondent’s submissions regarding whether there was a valid reason for Ms Turland’s dismissal included that:
• Ms Turland’s conduct posed a serious and imminent risk to the health and safety of Ms Grogan’s mother in circumstances where she was 101 years old and had recently experienced a fall resulting in bruising and a suspected fractured pelvis;
• Ms Turland’s conduct when viewed objectively had the potential to damage the Respondent’s reputation as a competent and safe provider of aged care services;
• Ms Turland’s actions in making jokes in front of Ms Grogan and her mother and in taking an aggressive and chiding tone with Ms Grogan’s mother were callous in the circumstances;
• Ms Turland did not have the requisite knowledge to suggest what, if any, medications could be safely administered to Ms Grogan’s mother, adding that this posed a serious and imminent risk to the health and safety of Ms Grogan’s mother; and
• Ms Turland’s failure to comply with her Confidentiality Agreement when she disclosed that another resident was suffering dementia and was not permitted pain killers was a failure to follow a lawful and reasonable direction which amounted to serious misconduct.
[48] The allegations of serious misconduct by Ms Turland set out in the Notification letter are listed below. Specifically, the letter alleged that during the care of a resident recently that Ms Turland had been witnessed:
(i) to manage the resident in a rough, forceful manner both verbally and physically;
(ii) showing a lack of empathy for both the resident and their representative;
(iii) to breach the privacy and confidentiality of another resident; and
(iv) acting outside her role regarding the medication needs of the resident.
[49] Consistent with the decision in King I will consider the evidence in respect of each the allegations to determine if the conduct occurred.
Did Ms Turland manage the resident in a rough, forceful manner both verbally and physically?
[50] In its submissions the Respondent contended that the focus of its investigation were the events of 16 February 2019, in part because it considered its investigation supported a finding that those events constituted serious misconduct warranting Ms Turland’s dismissal. In other words, the events of 17 February 2019 were not relied upon by the Respondent in coming to its decision to dismiss Ms Turland. I note that neither Ms Morgan’s witness statement nor the minutes of the 4 March 2019 meeting annexed to that statement 28 indicate that the events of 17 February 2019 were canvassed in that meeting. In those circumstances, I do not propose to consider whether the conduct referred to in Ms Grogan’s complaint as having occurred on 17 February 2019 actually occurred.
[51] Ms Turland’s evidence regarding this allegation as it related to 16 February 2019 was largely premised on her contentions that she could not pull her hands away from Ms Grogan’s mother because she had torn ligaments in her thumbs, that she had to speak loudly to Ms Grogan’s mother because she was deaf and had her hearing aids out, that she used sign language which would have involved her hands being close to Ms Grogan’s mother’s face to say goodnight to her and that Ms Grogan’s mother felt pain when she and Ms Porter lifted her onto the commode as a result of a suspected cracked pelvis which she had suffered as a result of a fall.
[52] On the other hand, Ms Porter’s evidence was that she did not assist Ms Turland with toileting or turning Ms Grogan’s mother, that Ms Turland grabbed the hands of Ms Grogan’s mother and moved towards her face and said words to the effect of “[n]o, no, no” and that Ms Turland’s actions in holding the hands of Ms Grogan’s mother and shaking them struck her as unusual and inappropriate. Ms Porter also gave evidence that Ms Grogan’s mother was agitated but she could not recall if she was moving her hands around.
[53] Ms Hewitt’s evidence was that while repositioning Ms Grogan’s mother after she had been to the toilet Ms Grogan’s mother attempted to hold Ms Turland’s hands but Ms Turland pushed her hands away in a manner that she considered unnecessarily forceful and rough. Ms Hewitt also deposed that during this period Ms Grogan’s mother, who she described as confused, would try and leave her bed asking to be put into bed, adding that Ms Turland would push her down in a forceful manner telling her that she was in bed.
[54] Ms Porter’s evidence is consistent with Ms Grogan’s evidence, though Ms Grogan’s evidence was that it was Ms Porter who assisted with the toileting of her mother. However, that last point is not supported by the case notes for her mother produced by the Respondent 29 which indicates that Ms Hewitt assisted with toileting her mother. I do not consider the discrepancy to be material.
[55] While Ms Turland presented medical evidence that she had dislocated a thumb in mid-June 2016 and that she was not fit to return to work until 13 July 2016 30, she did not provide any evidence to support her contention that she could not pull her hands away from Ms Grogan’s mother because of torn ligaments. In the absence of evidence to that effect, I am not satisfied that her contention is made out. I note also that based on the material before the Commission it does not appear that Ms Turland mentioned the torn ligaments in her thumbs at the meeting of 4 March 2019. Further, I note that Ms Turland maintained that Ms Porter assisted her with toileting Ms Grogan on 16 February 2019 despite this not being supported by the case notes for Ms Grogan’s mother which were produced by the Respondent and her evidence being inconsistent with the evidence of Ms Porter and Ms Hewitt in this regard. For these reasons, I prefer the evidence of Ms Porter and Ms Hewitt regarding this allegation. Their evidence is also consistent with Ms Grogan’s complaint.
[56] The above analysis supports a finding that the conduct attributed to Ms Turland on 16 February 2019 in respect of this allegation did occur.
Did Ms Turland show a lack of empathy for both the resident and their representative?
[57] It is not clear from this allegation as to what aspects of Ms Grogan’s complaint it relates to. The minutes of the meeting of 4 March 2019 31 do not shed any light on the particulars of the allegation as discussed with Ms Morgan, though in her witness statement Ms Morgan deposed that in discussing this aspect of the allegations she read out that paragraph of Ms Grogan’s complaint which stated among other things that Ms Turland was overly stern with her mother, held her hand up close to her mother’s face and said no very loudly and sternly and that at no time did Ms Turland say anything comforting to her distressed mother. Ms Turland in her evidence to the Commission disputed this allegation. However, the evidence of both Ms Porter and Ms Hewitt and their statements when interviewed by Ms Morgan as part of the investigation is consistent with the events as outlined in Ms Grogan’s complaint. In circumstances where there is some overlap between the conduct attributed to Ms Turland under this allegation and the previous allegation and where for the reasons outlined above I prefer Ms Porter’s and Ms Hewitt’s evidence, I am, on balance, inclined to the view that Ms Turland was overly stern with and did say “no” sternly to Ms Grogan’s mother.
[58] Based on the material before the Commission, it appears that another aspect of this allegation relates to Ms Grogan’s complaint that at one stage Ms Turland left her mother’s room “making jokes to the other person [Ms Porter] with her”. However, on that aspect of the complaint, I note that at her meeting with Ms Morgan on 27 February 2019 Ms Porter stated that she “had no memory of any joke making”. 32 Accordingly, I do not consider that this aspect of the complaint is substantiated.
[59] The above analysis supports a finding that the allegation is made out in part.
Did Ms Turland breach the privacy and confidentiality of another resident?
[60] Ms Turland’s evidence was that in response to questions from Ms Grogan about another resident she did say that the resident had dementia and that she could not be given Panadol and that she responded in this was to reassure Ms Grogan that the resident was being cared for. In other words, Ms Turland effectively admitted to divulging information regarding the other resident though it does not appear from the material before the Commission that she named the other resident. Whether or not Ms Turland proffered this information in response to questions from Ms Grogan or for the reason given by Ms Turland does not alter the fact that doing so was in breach of the ‘Confidentiality Agreement’ she signed shortly after she commenced employment with the Respondent. That Confidentiality Agreement includes the following:
“The names of residents, all information about them and the services they receive must not be disclosed or discussed with other residents, family members or other people not involved in the provision of services to that person.
…
A proven breach of confidentiality is a serious betrayal of trust and may lead to disciplinary action and in some cases civil action.
In signing this agreement you acknowledge that you understand your duty to maintain confidentiality and you agree you will not obtain, use or disclose information in any way that is contrary to the conditions stated above.” 33 (Underlining added)
Did Ms Turland act outside her role regarding the medication needs of the resident?
[61] Ms Turland’s evidence was that she did not pressure Ms Hewitt to administer any medications to Ms Grogan’s mother and was not qualified to give advice on medication to a RN.
[62] On the other hand, Ms Hewitt’s evidence included that:
• as soon as she walked into Ms Grogan’s mother’s room Ms Turland suggested to her that she should administer Midazolam to Ms Grogan’s mother;
• she felt Ms Turland was pressuring her to administer Midazolam and trying to take advantage of the fact that she was a new RN; and
• Ms Turland’s demeanour was pushy and aggressive, adding that she considered this inappropriate.
[63] Ms Hewitt’s evidence was not disturbed under cross-examination.
[64] Ms Grogan’s evidence was that at one stage Ms Turland entered her mother’s room with a RN and recommended to her (i.e. Ms Grogan) that her mother be given anti-anxiety medication, observing that the RN was taking instruction from Ms Turland and that she felt that Ms Turland was overbearing and trying to assert herself over the RN. Ms Grogan’s evidence is consistent with Ms Hewitt’s evidence.
[65] I prefer Ms Hewitt’s regarding this allegation because it is corroborated by Ms Grogan. I also note that Ms Turland’s response to the complaint attached to her initial witness statement 34 states:
“Yes, I did think that the resident needed medication as she was in pain and great distress … I was not forceful but I was forced into a situation of advising the Registered Nurse who did not appear to know what to do.
…
I only suggested Medazline because Registered Nurses had previously administered this in similar circumstances …” 35
[66] As such, I am satisfied that the conduct attributed to Ms Turland occurred.
[67] In summary, I am satisfied that all but one aspect of the conduct attributed to Ms Turland occurred. For the reasons outlined above, I am not satisfied that Ms Turland made jokes as she left Ms Grogan’s mother’s room with Ms Porter on the night of 16 February 2019.
[68] When viewed in totality, I consider Ms Turland’s conduct constituted a valid reason for her dismissal on the basis that it fell short of the standard of care which should have been provided to Ms Grogan’s mother and was inconsistent with the Respondent’s confidentiality policy as reflected in her Confidentiality Agreement.
Notification of the valid reason – s.387(b)
Opportunity to respond to any reason related to the capacity or conduct of the person – s.387(c)
[69] I deal with these considerations together as there is a considerable degree of overlap between them in this case.
[70] Ms Turland essentially submitted that she was not notified of the reason for her dismissal as she had not been provided with a copy of Ms Grogan’s complaint prior to her dismissal. Ms Turland further submitted that she did not have an opportunity to respond to the allegations, adding that instead of being provided the allegations in writing to enable her to prepare her response she was only provided with a vague and unclear set of allegations prior to the disciplinary meeting of 4 March 2019 with Ms Morgan. In both her witness statements Ms Turland deposed that she had no idea what the allegations in the Notification letter related to.
[71] The Respondent contended that Ms Turland was notified of the reason for her dismissal, alluding to the Notification letter of which advised her of the allegations made against her, the meeting of 4 March 2019 at which the allegations were further particularised and where she was provided with the opportunity to respond, her being advised shortly after that meeting had concluded that she was being summarily dismissed for serious misconduct and the termination letter of 7 March 2019 which set out the reasons for her dismissal. The Respondent also submitted that Ms Turland was given the opportunity to respond to the allegations both verbally and in writing, adding that Ms Turland availed herself of this opportunity. The Respondent also submitted that Ms Turland’s contention that the Notification letter did not adequately particularise the allegations against her was undermined by Ms Turland attending the meeting of 4 March 2019 with handwritten notes which addressed the nights in question.
[72] The Full Bench in Crozier stated as follows in respect of the equivalent provisions to s.387(b) and (c) in the Workplace Relations Act 1996:
“[73] 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.”
[73] On any objective analysis the Notification letter lacks a level of detail or specificity regarding the allegations which would assist in responding to them. For instance, while the letter outlines in very general terms the allegations of serious misconduct made against Ms Turland, there is no reference to the dates on which the alleged misconduct occurred nor is there any indication as to which resident the allegations relate to. It is therefore somewhat surprising that in circumstances where Ms Turland deposed that she had no idea what the allegations in the Notification letter related to, that neither she nor her representative sought any further details regarding the allegations in advance of the meeting of 4 March 2019. Be that as it may, that observation is not relevant in determining whether Ms Turland was notified of and given an opportunity to respond to the valid reason for her dismissal. In my view, Ms Turland’s submissions regarding these considerations are undermined by her evidence that:
• at the 4 March 2019 meeting Ms Morgan read the allegations from the disciplinary letter and then quoted from another piece of paper which she now understood to be Ms Grogan’s complaint – Ms Turland’s evidence in this regard is supported by her notes of the meeting of 4 March 2019 36; and
• the handwritten notes she gave to Ms Morgan at the meeting of 4 March 2019 had been prepared after she was handed the Notification letter on 26 February 2019, acknowledging that the resident referred to in the third paragraph of the notes was Ms Grogan’s mother.
[74] In their oral evidence both Ms Morgan and Ms Hughes made a number of significant concessions regarding the process followed in this case. For instance, Ms Morgan conceded that it was possible that her second interjection at the meeting on 4 March 2019 precluded Ms Turland from providing a full response to the allegation that she showed a lack of empathy for both the resident and their representative. Ms Turland deposed in her witness statements that when this allegation was read out she started reading out her handwritten response 37 and that when interrupted by Ms Morgan that she handed her handwritten response to her. Significantly, Ms Turland does not depose that she was precluded from fully responding to the allegation or that she would have gone beyond her handwritten response in responding to the allegation. As such, while it would have been better that Ms Morgan had not interjected, I am not convinced that Ms Turland was denied the opportunity to respond to the specific allegation put to her.
[75] As to Ms Hughes’ concession that she had not read the records of Ms Morgan’s meetings with Ms Porter and Ms Hewitt prior to the meeting of 4 March 2019, I do not consider this material in circumstances where it was Ms Morgan that made the decision to dismiss Ms Turland, albeit after discussing the matter with Ms Hughes and Mr Reeves. Having said that, Ms Hughes failure to read the documents does not reflect well on her.
[76] The process followed by the Respondent in this case falls well short of best practice. It undoubtedly would have been better had the Notification letter been more specific regarding the allegations, e.g. by either quoting from Ms Grogan’s complaint and/or attaching a copy of the complaint. However, the issue I need to decide is not whether the process could have been better but whether Ms Turland was notified of the valid reason for her dismissal and given an opportunity to respond that reason. Having regard to the terms of the Notification letter, Ms Turland’s evidence that at the meeting of 4 March 2019 Ms Morgan quoted from Ms Grogan’s complaint in inviting her response to the allegations, the evidence which indicates that at the meeting of 4 March 2019 Ms Turland was invited to respond the allegations put to her by Ms Morgan and Ms Turland’s evidence acknowledging that her handwritten response handed to Ms Morgan at the 4 March 2019 meeting referred to Ms Grogan’s mother supports a finding that Ms Turland was notified of the valid reason for her dismissal and given an opportunity to respond that reason at the meeting of 4 March 2019. This does not point to her dismissal being unfair.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[77] It was not disputed that Ms Turland had a support person attend the meeting of 4 March 2019. As such, this factor is a neutral consideration in this case.
Warnings regarding unsatisfactory performance – s.387(e)
[78] It was not disputed that Ms Turland was not dismissed for unsatisfactory performance. Accordingly, this consideration is not relevant in this case.
Impact of the size of the employer on the procedures followed – s.387(f)
Absence of dedicated human resources management specialist/expertise on the procedures followed – s.387(g)
[79] I deal with these considerations jointly.
[80] Ms Turland submitted that the Respondent was a moderately sized business which employed a Human Resources Manager.
[81] The Respondent submitted that it did not employ a human resource professional and that for audit purposes its staffing levels were of an appropriate level for the industry.
[82] Ms Morgan and Ms Hughes gave evidence that they had either handled many investigations or were experienced in undertaking investigations. This does not suggest that the absence of human resources specialist/expertise impacted on the procedures followed in this case. Further, the Respondent in it Form F3 – Employer Response to Unfair Dismissal Application stated that it had 97 employees at the time Ms Turland was dismissed. In other words, the Respondent is a medium sized employer. As such, I consider it unlikely that the Respondent’s size impacted on the procedures followed in this case.
[83] Against that background, I consider these factors to be neutral in this case.
Other relevant matters – s.387(h)
[84] Ms Turland submitted inter alia that:
• the alleged conduct, even if substantiated, could not be characterised as serious and wilful conduct as per Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations);
• her summary dismissal was therefore a disproportionate response to the conduct, particularly given her over 10 years of unblemished service;
• other staff who were the subject of complaints were not dismissed but instead were simply banned from the resident;
• Ms Grogan’s complaint was submitted several days after her mother’s death, i.e. the complaint was made at what would have been a highly emotional time for the resident’s family; and
• the personal impact of the dismissal on Ms Turland given that she was 65 years of age and lived in a rural location made the dismissal harsh.
[85] The Respondent in its submissions highlighted that Ms Turland had been counselled on a number of occasions, once in 2016 for discussing a resident’s sensitive information with a family member in breach of the Respondent’s confidentiality policy, once in 2017 for discussing a resident’s medical condition with a family member and twice in 2018 for separate incidents relating to handovers and putting a post-it-note reading ‘No’ over a resident’s call-bell. The Respondent also contended that minimal weight should be attached to Ms Grogan’s emotional state at the time she made her complaint regarding Ms Turland.
[86] I deal firstly with Ms Turland’s contention that the alleged misconduct could not be characterised as serious misconduct.
[87] By way of background, the Regulations set out the meaning of serious misconduct as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) 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.”
[88] I do not accept the Respondent’s contention that Ms Turland conduct in suggesting what, if any, medications could be safely administered to Ms Grogan’s mother posed a serious and imminent risk to the health and safety of Ms Grogan’s mother because ultimately it is a decision for the RN as to what medication is to be administered to a resident. While Ms Turland’s strong expression of her views in circumstances where she agrees that she is not qualified to do so was inappropriate, for the Respondent’s contention to be made out it would have to demonstrate that it resulted in Ms Hewitt administered inappropriate medication to Ms Grogan’s mother solely as a result of Ms Turland’s pressure. However, the evidence in this case is that Ms Hewitt formed her own a view as to what medication should be given to Ms Grogan’s mother based on her assessment of what was best in the circumstances. In other words, Ms Hewitt made her decisions regarding the medication given to Ms Grogan’s mother on 16 February 2019 drawing on her professional knowledge/opinion as opposed to Ms Turland’s exhortations.
[89] Similarly, I am not satisfied that Ms Turland’s conduct otherwise on 16 February 2019 posed a serious and imminent risk to the health and safety of Ms Grogan’s mother as was contended by the Respondent. While I accept that Ms Turland’s conduct fell short of what was expected of her by the Respondent, there is no material before the Commission which points to it creating a risk to the health and safety of Ms Grogan’s mother.
[90] I accept that Ms Turland’s disclosure to Ms Grogan of details regarding the medical condition and medication of another resident was a breach of the Respondent’s confidentiality policy. The fact that Ms Turland had previously been counselled on three occasions for breaches of that policy is in my view a relevant consideration. However, having regard to the reason given by Ms Turland as to why she said what she did about the other resident to Ms Grogan, I am not satisfied that the conduct can be characterised as “wilful or deliberate behaviour” as per Reg.1.07(2)(a) of the Regulations. Further, while I accept that Ms Turland had not previously received a formal warning, the fact that she had been counselled on a number of occasions does not in my view support her contention that her service with the Respondent was ‘unblemished’. As a longstanding employee Ms Turland should, in my view, have known better than to divulge anything of substance about the resident.
[91] While I accept the Respondent’s contention that Ms Turland’s conduct when viewed objectively had the potential to damage its reputation as a competent and safe provider of aged care services, I do not consider that it posed a “serious and imminent risk” to the Respondent’s reputation such as to support a finding of serious misconduct.
[92] In short, the above analysis does not support a finding that Ms Turland’s conduct amounted to serious misconduct.
[93] As to Ms Turland’s contention that the timing of Ms Grogan’s complaint was a relevant consideration, I do not accept what appears to be the premise of the contention, i.e. that the making of the complaint at what was understandably a very distressing time for the family somehow affected the veracity of the allegations. To the contrary, the contemporaneity of the complaint not only reflects Ms Grogan’s dissatisfaction with the level of care provided to her mother by Ms Turland but also provides confidence as to the accuracy of Ms Grogan’s recollection of events.
[94] Ms Turland also submitted that her dismissal was harsh because of its personal impact on her given that she was 65 years of age and lived in a rural location. However, attached to Ms Turland’s first witness statement was a letter from the Operations Manager at Gunning District Community and Health Services Incorporated which stated as follows:
“Maureen Elizabeth Turland has approached me today seeking a position as a Community Support worker.
I am able to provide some casual work for Maureen but as she does not have the current requirements of a Certificate 3 in Aged care/ individual support we are only able to offer some voluntary work.
If Maureen is able to enrol in a course for the above certificate or similar we would be able to offer some casual work.” 38
[95] While I acknowledge that the above letter refers to casual work, the evidence does not entirely support the gist of Ms Turland’s contention, i.e. that her age and regional location are a barrier to her obtaining employment. The fact that Ms Turland does not hold the requisite Certificate III appears to be a more significant impediment to her securing work in the sector, though I note that the letter refers to casual work being available if Ms Turland was to “enrol in a course for the above certificate or similar”. As previously mentioned, Ms Turland has enrolled in such a course. As such, I am not satisfied that this factor is a relevant consideration.
[96] Turning to Ms Turland’s contention that she had been treated differently from other employees who had been the subject of a complaint. Ms Turland’s evidence regarding this aspect, while not challenged under cross-examination, was somewhat general. In the absence of further detail as to the specifics of the incidents, I do not consider the evidence sufficient to make out that Ms Turland had been treated differently. As such, I do not consider this contention a relevant matter.
[97] Finally, while I accept Ms Morgan’s evidence that she had not decided to terminate Ms Turland’s employment before the meeting of 4 March 2019, I would observe that it would have been more prudent to take more time to reflect on the material before her before coming to the decision to summarily dismiss Ms Turland.
[98] Drawing on the above analysis, my finding above that Ms Turland’s conduct did not amount to serious misconduct and that she had previously been counselled on three occasions for breaches of the Respondent’s confidentiality policy are relevant matters in this case.
Conclusion
[99] Drawing on the above analysis, I find that there was a valid reason for Ms Turland’s dismissal related to her conduct, that Ms Turland was notified of that reason and given the opportunity to respond to that reason prior to her dismissal, that my finding above that Ms Turland’s conduct did not amount to serious misconduct and that she had previously been counselled on three occasions for breaches of the Respondent’s confidentiality policy are relevant matters and that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.
[100] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne by 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.”
[101] Drawing on the decision in Byrne, I consider that Ms Turland’s summary dismissal was harsh because it was disproportionate to the gravity of her misconduct. While Ms Turland’s conduct provided a valid reason for her dismissal, I do not think that summary dismissal was justified in circumstances where, for the reasons outlined above, I do not consider that her conduct amounted to serious misconduct. A more appropriate response would have been for Ms Turland to be dismissed with notice.
[102] Against that background and having considered all the criteria in s.387 of the Act, I find that Ms Turland’s dismissal was harsh. I turn now to consider the issue of remedy.
Remedy
[103] Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal. Section 390(3) of the Act makes it clear that reinstatement is the primary remedy in circumstances where the Commission determines that a dismissal is harsh, unjust or unreasonable.
[104] In this case, Ms Turland sought reinstatement, whereas the Respondent contended that reinstatement was inappropriate for several reasons including that it could not trust Ms Turland to carry out her duties while maintaining the confidentiality required by its policies and applicable legislation. Further, Ms Morgan’s evidence was she would have grave concerns were Ms Turland to be reinstated to her position for several reasons including that the Respondent could no longer trust her to work independently without being supervised at all times, adding that this was not feasible given its operational requirements. Another reason cited by Ms Morgan was that the Respondent could no longer trust Ms Turland to keep residents’ sensitive medical information confidential. I note that Ms Morgan’s evidence in this regard was not challenged under cross-examination.
[105] Deputy President Gostencnik in Dr Mark Colson v Barwon Health (Colson) 39 listed a number of propositions distilled from various authorities regarding the issue of loss trust and confidence in the context of considering the issue of reinstatement. I set out below the relevant passage from Colson:
“[25] …the following propositions may be distilled concerning the impact of a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy:
• An assessment of whether there has been a loss of trust and confidence must be decided on the circumstances of the particular case, including the nature of the employment;
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise any claim by an employer that reinstatement is inappropriate because of a loss of confidence in the employee;
• The appropriateness of reinstatement does not depend on notions of a loss of trust and confidence in the employee, although it is a relevant and even important consideration;
• Dismissal for misconduct, assuming the employer is acting honestly, will in most cases imply a loss of trust and confidence in the employee. If the dismissal is ultimately found to be ‘unfair’, the question becomes whether the relationship can be restored if the employee is reinstated. In answering that question all of the circumstances must be taken into account, not just the views of management;
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed;
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate;
• In most cases, employment relationships are capable of withstanding some friction and doubt and in this context, trust and confidence are concepts of degree;
• The question, so far as it relates to reinstatement is ultimately, whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 40
[106] I will have regard to the above propositions.
[107] I consider Ms Morgan’s concerns regarding reinstatement as set out above to be soundly and rationally based in circumstances where:
• Ms Turland’s conduct, if repeated, has potential implications for the health and safety of residents and by extension for the Respondent’s business, particularly in circumstances where the issue of aged care is under the public microscope as a result of the Royal Commission;
• Ms Turland worked night shift where there was not only limited supervision but also it was unlikely that family/friends of residents would be on the premises – meaning that monitoring Ms Turland’s work would be particularly difficult unless special arrangements were put in place by the Respondent;
• any monitoring arrangements put in place by the Respondent are likely to be problematic and/or costly; and
• Ms Turland’s repeated breaches of the Respondent’s confidentiality policy.
[108] Having regard to those circumstances and drawing on the language in Colson, I am not satisfied that there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. For that reason, I consider reinstatement inappropriate in this case.
Compensation
[109] As to the issue of compensation, there is insufficient information before the Commission for me to determine what compensation is appropriate in the circumstances. I therefore propose to list the matter for mention/directions to set a timetable for dealing with the issue of compensation.
Conclusion
[110] For all the above reasons, I find that Ms Turland’s dismissal was harsh and that reinstatement is not appropriate. As to the issue of compensation, Ms Turland’s application will be listed for mention/directions to set a timetable for dealing with the issue.
Appearances:
E. Fry for the Applicant.
I. Meagher for the Respondent.
Hearing Details:
Canberra
2019
October 16 and 17
Printed by authority of the Commonwealth Government Printer
<PR716795>
1 Exhibit 3 at Annexure RG-1
2 Exhibit 1 at Attachment MT 3
3 Ibid at Attachment MT 5
4 [2010] FWA 3497
5 [2013] FWCFB 6191
6 (2010) 194 IR 1
7 (2000) 98 IR 137
8 [2011] FWA 1346
9 [1995] HCA 24; (1995) 185 CLR 410 at 465
10 (1959) 101 CLR 298
11 [2017] FWC 3559
12 Exhibits 1 and 2
13 Exhibit 1 at Attachment MT 4
14 Exhibit 8
15 Exhibit 3
16 Exhibit 5
17 Ibid at Annexure CP-1
18 Ibid
19 Exhibit 4
20 The point stated “Sunday afternoon 24.2.19 H/H rang to see if I could do a night shift: two nights before being stood down” – refer Exhibit 4 at Annexure LM - 10
21 Exhibit 4 at Annexures LM - 2 to LM - 5
22 Exhibit 6
23 Exhibit 7
24 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
25 Ibid
26 Print S4213
27 (1999) 169 ALR 89 at 92 per Moore J
28 Exhibit 4 at Annexure LM – 9A
29 Exhibit 8
30 Exhibit 2 at Attachments MT10 to MT12
31 Exhibit 4 at Annexure LM – 9A
32 Ibid at Annexure LM - 8
33 Exhibit 4 at Annexure LM - 1
34 Exhibit 1 at Attachment MT8
35 Ibid at paragraphs 8 and 9
36 Ibid at Attachment MT7
37 Ibid at MT4
38 Ibid at Attachment MT9
39 [2013] FWC 8734
40 Ibid at [25]
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